Apostille Convention: The Upcoming Meeting of the Special Commission

The Peace Palace

The Special Commission on the Practical Operation of the Hague Apostille Commission will be meeting at the Peace Palace beginning this week. Here are a few of the key documents:

  • The annotated draft agenda
  • A synopsis of answers to the questionnaire of April 2016
  • A paper prepared by the Permanent Bureau that discusses authentication of documents issued by supranational or inter-governmental bodies
  • The Conclusions and Recommendations from the 2009 and 2012 meetings of the Special Commission
  • An interesting paper prepared by Prof. Peter Zablud for the Australian and New Zealand College of Notaries
  • A report on the costs of obtaining apostilles in various countries

I want to comment on on aspect of Professor Zablud’s paper. He is critical, and maybe with good reason, of the number of competent authorities designated by many states. Leaving aside technical issues about federalism in states like the US, I want to make the case that from the practicing lawyer’s point of view, and maybe even from the layman’s point of view, decentralization of this function is critical to the success of the Convention. It’s true that the United States, for example, makes the clerk of each federal court a competent authority. But what is the alternative? If I have a judgment from the US District Court here in Boston that I want to authenticate for use in foreign proceedings, it is difficult to see what purpose is served by requiring me to send it off to Washington rather than walking to the courthouse to obtain the apostille. Prof. Zablud points out that in essence a clerk of court is authenticating his own signature, raising issues of independence and impartiality; but he acknowledges that “there is no suggestion, nor is there any evidence, that any notary or court official or presiding officer has ever acted improperly in the execution of his or her duty in the affixing of an apostille to a public document.”

One could at least imagine centralizing the apostille function with respect to documents issued by federal courts, but the problem is more difficult at the state level. Suppose I need to authenticate an affidavit sworn before a Massachusetts notary. I walk over to the Secretary of the Commonwealth’s office, his staff verifies the notary’s commission, and then attaches the apostille. Leaving issues of convenience aside, it is difficult to imagine centralizing this function in Washington, since the national government has no registry of notaries public, justices of the peace, judges, etc., in the fifty states. In other words, in a country like ours, decentralization aids rather than hinders the main goal, which is assuring the authenticity of the signature of the public official in question. Another way to put this is that perhaps the issue requires a different analysis in large, decentralized states than in small states or states with strong centralized government.

Professor Zablud points out that in the US, unlike in most countries, notaries public have limited or no power to certify copies. This may be true in many states, but it is not true in all. Chapter 222, § 15 of the General Laws of Massachusetts expressly provides that notaries may perform “copy certifications.”

One last point: the Special Commission ought at some point (perhaps not at this meeting) to note and discuss the problems created by laws such as the Virginia notarial law that I discussed in a recent post on Notarize, Inc. Are the states party to the Convention okay with apostilles affixed to affidavits or other public documents when the notary was in the United States but the signer was in the foreign state at the time of signing and administration of the oath?

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's treatise on International Aspects of US Litigation (J. Berger, ed. 2017), and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012 and 2014 - 2016.

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