Introduction

On January 29 2016 the government ratified the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (the Apostille Convention), which was concluded at The Hague in 1961, through the enactment of Federal Decree 8,660. The convention aims to remove the requirement of diplomatic or consular legalisation of foreign documents.(1)

Many companies with branches in Brazil will benefit from the ratification of the convention, as it will expedite the processes for, and reduce the cost of, validating foreign documents between member states (eg, Japan, the United Kingdom, the United States and Mercosur parties).(2)

Apostille Convention

The convention applies to public documents which have been executed in one signatory country and must be produced in another signatory country. For the purposes of the convention, the following are deemed to be public documents (Article 1):

  • court and tribunal documents, including those issued by public prosecutors, court clerks and process servers;
  • administrative documents;
  • notarial acts; and
  • official certificates on documents signed by persons in their private capacity – for example:
    • 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.

Notwithstanding the above, the convention does not apply to documents executed by diplomatic or consular agents or administrative documents dealing directly with commercial or customs operations.

The only formality that may be required is the addition of a certificate called an 'apostille', which must be issued by the competent authority of the state from which the document originates in order to certify:

  • the authenticity of the signature;
  • the capacity in which the person signing the document acted; and
  • where appropriate, the identity of the seal or stamp which it bears (Article 3).

The government has not defined yet which agency will be responsible for issuing apostilles. In December 2015 after the convention was approved by Congress (Legislative Decree 148/2015), the National Justice Council instituted a working group to evaluate how the convention will be applied in Brazil (Ordinance 155/2015). It is anticipated that the issue of apostilles will be delegated to registries and be required/issued by means of electronic system.

An apostille will be issued at the request of the person that signed the document or of any bearer. When properly completed, apostilles will certify:

  • the authenticity of the signature;
  • the capacity in which the person signing the document acted; and
  • where appropriate, the identity of the seal or stamp which the document bears.

The signature, seal and stamp on the certificate are exempt from any additional certification (Article 5).

The Apostille Convention will override any treaty, convention or agreement between two or more states with provisions that subject the certification of a signature, seal or stamp to more rigorous formalities (Article 8).

Brazil currently has bilateral conventions in this regard with Argentina, France and Italy. Before proceeding with the draft of the apostille form, companies should evaluate whether any of these conventions provide for simpler conditions for legalisation of foreign documents between the relevant states.

Comment

The government's goal in ratifying the Apostille Convention is clearly to reduce bureaucracy. For companies, this reduction will decrease the expenses associated with, among other things, validating foreign documents.

The convention will come into full force in Brazil on August 14 2016.

For further information of this topic please contact Dario Abrahão RabayJosé Daniel Gatti Vergna or Felipe Camargo de Araújo at Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados by telephone (+55 11 3147 7600) or email (drabay@mattosfilho.com.brjvergna@mattosfilho.com.br orfcamargo@mattosfilho.com.br). The Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados website can be accessed at www.mattosfilho.com.br.

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