I. INTRODUCTION II. THE APOSTILLE IN ITS VARIOUS FORMS AMONGST SIGNATORY STATES A. General Overview B. Apostille Practices of the Various Nations III. THE PROBLEM OF FRAUDULENT DOCUMENTS ABUSING THE HAGUE CONVENTION IV. ELECTRONIC APOSTILLIZATION V. ELECTRONIC NOTARIZATION IN THE UNITED STATES A. The Proposed Solution to the Electronic Notarization Problem B. The MNA and Foreign Languages VI. ELECTRONIC NOTARIZATION AS A MEANS TO LIMIT PRODUCTION OF FRAUDULENT DOCUMENTS VII. CONCLUSION VIII. APPENDIX (STATE ELECTRONIC NOTARIZATION LAWS) A. Alaska B. Arizona C. California D. Colorado E. Delaware F. Florida G. Illinois H. Kansas I. Michigan J. Minnesota K. Nevada L. New Mexico M. North Carolina N. Pennsylvania O. Texas P. Utah Q. Virginia I. INTRODUCTION
An apostille (hereinafter "Apostille") is a standard certification provided under the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents ("Hague Apostille Convention") for authenticating documents used in foreign countries. (1) Apostilles are used frequently to certify various energy industry-relevant documents, such as oil and gas leases, purchase and sale contracts, joint operating agreements, drilling contracts, supply contracts, pay orders, field-wide operating agreements, confidentiality agreements, employment records, and even diplomas. (2)
Under the Hague Apostille Convention, the Apostille is attached to documents produced in one nation state, which will be certified, or apostillized, in order to be presented to the government (or court) of another state. (3) Four types of documents are mentioned in the Hague Apostille Convention: (1) court documents; (2) administrative documents, e.g. civil status documents; (3) notarial acts; and (4) official certificates, which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures. (4)
Apostilles are affixed by "Competent Authorities" designated by the government of a state which is party to the convention. A list of these authorities is maintained by the Hague Conference on Private International Law. Generally, designated authorities include government ministries, embassies, lawfully constituted courts and local governments. (5) To be eligible for an Apostille, a document must first be issued or certified by an officer recognized by the authority that will issue the Apostille. (6) The Apostille certificate includes the ten elements of apostillization. The Apostille certificate may be a stamp or printed form consisting of ten numbered standard fields. (7) At the head of the certificate is the title APOSTILLE, followed by the required numbered fields. (8)
The information may be placed on the document itself, including the reverse or back of the document, or the information may be attached to the document as an allonge, or piece of paper affixed to the document. (9)
Apostille is derived from French law, meaning postscript or note. (10) The effect of affixing an Apostille to a document is to certify authenticity of the signature of the official who signed the document as true for recipients in another signatory nation. (11) Apostilles have been compared to notarization certificates; although notary certificates appear to be similar, the legal effects are much different, as will be discussed.
This Article (1) generally discusses the Apostille; (2) outlines the current practices of apostillizing documents in selected countries, such as France, Germany, Mexico, Argentina, China, India, South Africa, Japan, the United States, and the United Kingdom; (3) addresses a prevalent problem that has arisen, i.e., fraudulent documents attaining legal recognition through abuse of the Hague Apostille Convention; (4) provides an overview the electronic Apostille Pilot Program and offers suggestions for its improvement; and (5) addresses a possible solution to the fraudulent Apostille problem through a modification of the E-Apostille.
The issue of fraudulent documents is of great concern to the energy industry, as international exploration and production company documentation is especially vulnerable to the type of fraud perpetrated through abuse of the Hague Apostille Convention. (12)
II. THE APOSTILLE IN ITS VARIOUS FORMS AMONGST SIGNATORY STATES
Requirements of the Hague Apostille Convention
The Hague Apostille Convention is the controlling treaty on the general requirements of an Apostille. The Convention contains fifteen articles. (13) The first nine treaty articles set out the important substantive aspects of the treaty while the final six articles set out the ministerial aspects. (14)
Article 1 of the Hague Apostille Convention, explains those circumstances under which an Apostille may be used. (15) The Apostille may be used when public documents executed in one state need to be produced in another member state. (16) But the plain meaning of "public documents" might be misleading. A "public document" is not precisely defined in the Hague Apostille Convention; but the treaty does offer guidance, noting it may include (1) a document issued by the courts or one of the representatives of the courts of a country, (2) administrative documents, (3) notarial acts or documents that have been notarized, or (4) "official certificates which are placed on documents and signed by persons in their private capacity." (17) This means that a mineral lease or any real estate conveyance requiring notarization would be "public documents" for purposes of the treaty. (18)
Article 2 of the treaty officially abolishes the legalization process in contracting states. (19) This article means that legalization, a formality where diplomatic or consular agents is required to verify "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 it bears," is no longer required of documents produced in contracting states. (20)
After abolishing the legalization requirement, Article 3 of the Hague Apostille Convention states that a Competent Authority (21) from the state may issue an Apostille "to 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 it bears." (22) An Apostille does not assert that the contents and the substantive portions of the document are correct. (23) In fact, the Apostille does not say anything about whether the document is in fact accurate; it merely certifies that the signatures of the public officials on the document are authentic, the public official signing the document is acting in his proper capacity when he signs, and that any government seal or stamp is authentic. (24)
Article 4 of the Hague Apostille Convention explains how the Apostille may be attached and how the Apostille must 100k. (25) The Apostille must be physically attached to the document, but it may be stamped, instead of printed, on a separate sheet. (26) Furthermore, the Apostille must be at least nine centimeters long. (27) Finally, the Apostille may be made using the language of the issuing country, but the heading must be in French and state "Apostille (Convention de La Haye du 5 octobre 1961)." (28)
Article 5 of the Hague Convention exempts the signature, stamp and seal of the issuing government from needing any form of certification. (29) Without this provision, the Apostille would require the same (seemingly) endless chain of signatures that the legalization process required, a process which the Apostille process sought to avoid. (30)
Article 6 of the Hague Convention states that member nations must designate which officials may designate Apostilles. (31) Article 7 of the Hague Convention requires those entities who are issuing Apostilles to keep a record of the Apostilles they have issued, including "[t]he number and date of the certificate" and "[t]he name of the person signing the public document and the capacity in which he has acted, or in the case of unsigned documents, the name of the authority which has affixed the seal or stamp." (32) If any "interested individual" wants to verify that the Apostille was properly issued, the issuing entity must check their records and verify the Apostille. (33)
Article 8 of the Hague Apostille Convention is a savings clause that "preserve[s] other treaties between member nations which call for less stringent authentication requirements than those of the Hague Convention." (34) This seems to fit the purpose of the Apostille in general, namely speeding up the process of authenticating foreign public documents. (35)
Finally, Article 9 of the Hague Convention "prevent[s] the performance of legalizations by its diplomatic or consular agents in cases where the present Convention provides for exemption." (36)
Requirements by Special Commissions
In addition to the Hague Apostille Convention itself, two special commissions have formed and produced reports that answer questions of interpretation concerning the treaty.
The first of these questions is whether the Apostille may be affixed to only original documents or whether it may also be affixed to certified copies of public documents. The Special Commission of 2003 ("2003 SC") concluded that Article 1 of the Convention applies to a certified copy of a public document, "[i]ndividual States, however, may decline to issue an Apostille to the certified copy of a document on the grounds of public policy." (37) As will be discussed in section III, this interpretation is the basis for a method of abusing the Apostille to produce seemingly legitimate documents that are in fact fraudulent.
While the Hague Apostille Convention itself has stringent requirements concerning the form of the Apostille, both special...