I was surprised to learn, in the course of writing my recent post on an allegedly forged document that was certified with an apostille, that the uniform laws adopted in many US states (twenty-eight states and the District of Columbia, by my count) treat an apostille (and a final certification by a US consular officer) are conclusive proof that the signature of the foreign notary whose signature they certify is genuine. The rule in the statute seems to apply only to foreign notarial acts and not to other kinds of foreign public documents:¹This quote is from the Revised Uniform Law on Notarial Acts (2021), but § 6(b) of the Uniform Law on Notarial Acts (1982) is to the same effect (the newer statute simply adds the requirement that the apostille actually have been issued by the foreign state).

An apostille in the form prescribed by the Hague Convention of October 5, 1961, and issued by a foreign state party to the Convention conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.

Revised Uniform Law on Notarial Acts, § 14(e)

The uniform law has a similar provision for consular authentications in states that are not parties to the Convention:

A consular authentication issued by an individual designated by the United States Department of State as a notarizing officer for performing notarial acts overseas and attached to the record with respect to which the notarial act is performed conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.

Revised Uniform Law on Notarial Acts, § 14(f)

The drafters’ comment to the statute gives their reasons for the rule:

Being only a prima facie evidence that the notarial officer’s signature is valid and that the officer holds an office with the designated title, those elements may be disproved in a legal proceeding upon adequate proof. If the validity of a foreign notarial officer’s signature or the fact that the officer holds an office with the designated title is challenged, ultimate proof in a judicial proceeding may be expensive and time consuming. Furthermore, the potential of post hoc challenges may be detrimental to the promotion of international commerce.

Revised Uniform Law on Notarial Acts, § 14 cmt.

That rationale doesn’t make it clear whether the drafters thought that the Convention requires that the apostille have conclusive effect, but the comment goes on to explain: “Subsection (e) carries out the provisions of Hague Convention and gives effect to an ‘apostille’ complying with the treaty.” So perhaps they did think the Convention requires their result.

What is the effect of a statute like this at trial? Suppose a party offers in evidence a foreign public document, say a contract or a deed, drawn up by a foreign notary, with an apostille. And suppose the opposing party seeks to introduce evidence that the notary’s signature is not genuine, and thus that the document itself is not authentic. The court will rule that evidence tending to prove that the notary’s signature is not genuine is inadmissible. That is what it means to say that the apostille is “conclusive” on the question.

But when the public document is not a notarial document, and the statute does not apply, the rule could be different. Neither FRCP 44 nor FRE 902, the two rules that discuss how a foreign public document may be made self-authenticating, say that the apostille has conclusive effect. And in general, when a document meets the authenticity requirements of the rules of evidence, that simply means that it is admissible in evidence. It is always open to the finder of fact to disbelieve that the document is what it purports to be.

I say the rule could be different. What does the Apostille Convention, or the law regarding legalization, have to say?

I took a look at some of the explanatory materials, in particular the Explanatory Report of Yvon Lousourarn, which is printed in volume 2 of the Acts and Documents of the Ninth Session (1960) and reprinted on the HCCH website. As you would expect, the issue of forgery was on the minds of the drafters: “The principal difficulty raised in the legal context by the abolition of the legalisation chain and its replacement by the certificate system has to do with probative weight.” There was no question that the apostille itself had to be exempt from any proof of authenticity, for otherwise, what would be the point of the Convention? In practice, questions about whether an apostille is what it purports to be, if they ever arise, can be dealt with simply by asking the competent authorities of the issuing state.

But what about the effect of the apostille on the proof of the signature on the underlying public document? According to the Report, the drafters quickly rejected the possibility that the public document should be taken as genuine “subject to procedure in proof of forgery of the document, or simply until the contrary was proved.” The problem with that approach was that “in certain Member Countries of the Hague Conference, procedure in proof of forgery of a document (inscription défaux) is unknown. They also considered a rule that “the probative weight of the certificate would be governed by the law of the law of the country where the document was drawn up.” But they rejected that approach, too, because some countries looked to the law “where the document was drafted” and others to the country “where the document is produced,” so it wasn’t possible to have a simple single conflicts rule. Instead, they left the Convention silent on the issue:

This latter solution was adopted and the second paragraph of article 5 of the Convention goes no further than to declare that, When properly filled in (the certificate) will certify the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which the document bears, without specifying whether this attestation is effective until initiation of procedures in proof of forgery, or at least until the contrary is proved.

In the presence of this deliberate omission, in order to determine the probatory force of the certificate in respect of the attestations which it contains, one must refer to the law indicated by the conflict of laws rule of the forum.

That is, when a document with an apostille is offered in evidence in an American court, the American court first should determine, using its own conflict of laws rules, what law governs the probative effect of the apostille, and then apply the appropriate law to decide the probative effect.

But at least in an American court, the conflicts issue is trivial, because our courts always apply their own rules of evidence.²Is the issue trivial? Consider the parol evidence rule, the rule that says that when a written contract is a complete and final statement of the parties’ intent, evidence of communications outside the document itself are inadmissible to vary the contract. That is a loose statement of course. Courts do not always apply the parol evidence rule of the forum, because they hold that the rule, despite its name, is not really a rule of evidence but a substantive rule of contract law that defines what is and is not part of the contract. I don’t see that the rule about apostilles could be considered substantive in that way. So in sum, in an American court, the question is whether American evidence law gives an apostille conclusive effect.

Leaving aside cases applying the Uniform Law I discussed above, which applies to notarial acts but not other public documents, I don’t see much if any discussion of this issue, at least in a relatively quick look. But it’s hard to see why the uniform act’s approach is good idea, in practice or in principle. In practice, traditionally (according to the Practical Handbook), competent authorities would keep a database of sample signatures and compare the document visually with the sample. That method of authentication can hardly provide conclusive safeguards against forgery. And in principle, in the rare case where there really is a claim to be made that a foreign public document was forged, even though it bears an authentic apostille, why should the law give conclusive weight to a method of proof that is not infallible?

I think that the heart of the issue might be a difference between how the civil law and the common law think about authentication. As I noted above, in the common law, authenticating a document means offering evidence that is sufficient, if believed, to prove that the document is what it purports to be. The most general method of authenticating a document is by the sworn testimony of a witness who knows that the document is what it purports to be. This rule applies to public documents as well as private documents: I can testify that this is the deed transferring property, and the jury can believe me or disbelieve me, even though the deed was acknowledged before a notary. The notarial acknowledgment itself is evidence that authenticates the deed, but only prima facie. In principle, I could testify that a document is the judgment that a foreign court issued in my favor. But a jury can always disbelieve such testimony if it finds it not credible. I suspect that a civil law practitioner thinks about this differently, at least when public documents are involved: authenticating a public document means having the correct official’s seals and signatures on it. I would invite civil law readers to comment on this, because I’m curious about it.

• 1
  This quote is from the Revised Uniform Law on Notarial Acts (2021), but § 6(b) of the Uniform Law on Notarial Acts (1982) is to the same effect (the newer statute simply adds the requirement that the apostille actually have been issued by the foreign state).
• 2
  Is the issue trivial? Consider the parol evidence rule, the rule that says that when a written contract is a complete and final statement of the parties’ intent, evidence of communications outside the document itself are inadmissible to vary the contract. That is a loose statement of course. Courts do not always apply the parol evidence rule of the forum, because they hold that the rule, despite its name, is not really a rule of evidence but a substantive rule of contract law that defines what is and is not part of the contract. I don’t see that the rule about apostilles could be considered substantive in that way.