On 12 September 2018, the Philippine Ambassador to The Hague, Jaime Victor B. Ledda, deposited the instrument of accession to the Convention Abolishing the Requirement of Legalization for Foreign Public Documents (Apostille Convention) with the Ministry of Foreign Affairs of the Netherlands. The Apostille Convention shall take effect on 14 May 2019, or on the sixtieth day after the end of the of six month objection period.i
The Apostille Convention and the effects of Philippines’ accession
The Apostille Convention (Convention) was concluded on 5 October 1961. It aims abolish the consular legalization requirement for foreign public documents. It is widely recognized that he legalization process is lengthy and costly. Currently, the legalization (or authentication) of Philippine documents involves three certifications, i.e. certification by the concerned government agencies, certification by the Department of Foreign Affairs (DFA), and certification by the foreign embassies or consulates. By acceding to the Convention and its implementation in May 2019, the Philippines effectively shortens the authentication process to only one (1) certification called the Apostille, issued by a designated competent authority.
The Convention only applies if both countries, where the documents were issued and where the documents are to be used, are parties to the Convention.
An Apostille is a certification placed directly on the public document or on a separate attached page.ii It certifies the origin of the public document, the authenticity of the signature or seal of person or authority that signed or sealed the public document, and the capacity in which it was done.iii However, an Apostille does not authenticate the content of a public document.
Public documents which need to be certified include documents emanating from an authority or an official connected with the courts or tribunals of the State, administrative documents, notarial acts, and official certificates signed by persons in their private capacity. Although considered public documents, an Apostille may not be issued to certify documents executed by diplomatic or consular agents and administrative documents dealing directly with commercial or customs operations. iv
Benefits of acceding to the Apostille Convention
The immediate benefit of the Apostille Convention is the simplification of the process of authentication of public documents to be used in a foreign country. The three-step process of authentication will be reduced to a one-step process of issuing an Apostille. By simplifying the process, the time and costs involved will also be reduced and the circulation of public documents will be greatly and effectively facilitated. As a result, an Apostille will encourage commercial transactions and expedite legal proceedings involving authenticated documents.
Apostille Certification and Intellectual Property Enforcement and Protection
The Intellectual Property rules, as supplemented by the Rules of Court, presently require the authentication of affidavits and documents by the proper Philippine consular office to be admissible as evidence. Consequently, the Intellectual Property (IP) rights holders have to bear the long process of securing authenticated copies of the documents to support their claims. But with the implementation of the Apostille Certification, the delay in the filing of actions caused by the long authentication process will be avoided. The simplified authentication process could encourage IP rights holders to enforce and protect their IP rights in the Philippines and in other countries which are also parties to the Convention.
The Admissibility of the Apostille under the existing Rules on Evidence
The existing rules of evidence require the authentication of documents executed and notarized in a foreign country by the proper Philippine diplomatic or consular office to be admissible in evidence. With the Philippines’ accession to the Apostille Convention, it necessarily follows that the rules must be amended to permit the presentation, and eventually admission in evidence, of Apostille certified documents in the appropriate proceedings. As such, the Supreme Court, together with the concerned government agencies like the Intellectual Property Office, will play a vital role in the implementation of the Apostille Certification.
The Future of Apostille Certification
In this digital age of globalization and technological advancement, facilitating international transactions plays an important role in the development of the international community. In responding to the needs of the international community, the e-Apostille pilot program (later on called as the electronic Apostille Program or e-APP) was introduced as an electronic method of issuing and certifying apostilles. Under this program, Apostilles are issued in electronic format in the form of digital certificates.
Whether the Philippines will adopt the e-APP remains unclear; but one thing is for sure—a contracting party may not reject an Apostille on the sole ground that it has been electronically issued.