Manos de una chica revisando documentos públicos españoles para legalizar

One of the most recurring problems that our companies abroad usually face is accrediting the validity of Spanish public documents they must present when establishing a branch or subsidiary, participating in a competition or tender, or opening a bank account, especially when this accreditation, required by the legislation of the destination country, is unreasonably demanded by the person, official, or employee in charge of interpreting and enforcing it. To ensure that these Spanish public documents, whether judicial, administrative, or notarial, have the desired effect, they must be legalized to verify the authenticity of the signature, the capacity in which the signatory acted, and, if applicable, the identity of the seal or stamp. This process involves multiple phases, most of which are common to all, except for exceptions, and for notarial documents (deeds, records, certificates, etc.), it involves presenting the original and its sworn translation to the Notary College, the Ministry of Justice, the Ministry of Foreign Affairs, and the Consulate or Consular Section of the corresponding Embassy, in what has been aptly termed as a “chain legalization system.”

Now, is there a way to avoid this system, its delays, its costs? Well, there are two ways to do so, both related to conventional international law, either regional – European Union – or universal – Hague Conference on Private International Law. In the former case, to ensure the free circulation of public documents and facilitate the free movement of its citizens, the Union has adopted various rules with different scopes and contents that reflect its commitment to the aforementioned guarantees and facilitation. One such regulation is Regulation 216/1191 of July 16, 2016, in force since February 16, 2019, aimed at exempting certain Spanish public documents from legalization or similar procedures, simplifying their presentation requirements. In this context, public documents and their certified copies issued by a Union country’s authorities in accordance with their national law must be accepted as authentic by another Union country’s authorities. Moreover, this regulation eliminates the obligation to provide a translation; it suffices to provide a standard multilingual form, allowing the receiving authority to require a translation only in exceptional circumstances.

Transitioning from regional conventional international law to universal law at The Hague Conference on Private International Law reveals that various agreements and instruments have been adopted to harmonize differences between different existing legal systems, establish mechanisms for international legal cooperation, and strengthen legal certainty to facilitate individuals and companies in exercising their rights, particularly in conducting international business and investments. A clear example of this integrative effort is the Hague Convention XII on Private International Law of October 5, 1961, which eliminates the legalization requirement for foreign public documents. Spain signed this Convention on October 21, 1976, and ratified it two years later on September 25, 1978, becoming a contracting party along with another 124 countries that have similarly decided to do so to significantly simplify the authentication process for international use.

That said, how does this mechanism work? Which documents does it affect? What effects does it produce? According to the Convention, each contracting party will exempt Spanish public documents to which it applies from legalization. In particular, as stipulated in Article 1, these include judicial, administrative, and notarial documents. The only formality that can be required to certify the authenticity of the signature, the capacity in which the signatory acted, and if applicable, the identity of the seal or stamp mentioned earlier will be affixing an Apostille. This can be issued at the request of the signatory or any bearer of the document. But what is an Apostille? An Apostille is an annotation certifying the authenticity of the signature on the public document in question. It eliminates the legalization requirement for a public document intended for use in another contracting country under this Convention and is placed on the document itself or an attachment to it, whether on paper or electronically according to the provisions of Order JUS/1207/2011 of May 4 that establishes and regulates the Electronic Apostille Registry of the Ministry of Justice.

What about a region increasingly attracting Spanish companies’ interest like Southeast Asia? What needs to be done for Spanish public documents to be effective in these countries or for documents from these countries to be effective in Spain? How many Southeast Asian countries are currently part of this convention? Well, out of the ten countries comprising the Association of Southeast Asian Nations (ASEAN), only Brunei (1987), Philippines (2018), Indonesia (2021), and Singapore (2021) are contracting parties. Significant countries like Malaysia, Thailand, and Vietnam are not part of it yet; unlike the former group, they have not replaced the legalization process with Apostille yet. This complicates economic and commercial relations when Spanish or these countries’ businesses need to authenticate specific public documents. Could an impetus be given to this development by at least these mentioned countries’ adherence to the Convention I am referring to? What are the challenges that need to be overcome to do so? Wouldn’t it be advisable to start working on this as soon as possible?

Antonio Viñal
Lawyer
AVCO Legal
madrid@avco.legal