The Beijing Intellectual Property Court, in a significant legal development, has announced its adoption of the Apostille system. This move, declared in a press conference on 19 December 2023, aligns China’s documentation requirements for foreign-related IP cases with international standards.
China and the Apostille Convention
China formally joined the Convention Abolishing the Requirement of Legalization for Foreign Public Documents, also known as the Apostille Convention, on 8 March 2023, and the Apostille Convention entered into force for China on 7 November 2023. This step marks a significant shift in China’s approach to handling foreign public documents. Under the framework of the Apostille Convention, the cross-border circulation of public documents between China and the States parties to the Hague Convention will no longer be subject to the cumbersome process of embassy or consulate authentication, but will instead utilize the streamlined Apostille system.
Impact on Judicial Documentation
In the judicial sphere, previously, foreign entities had to undergo a two-step authentication process involving notarization in the originating country and subsequent verification at Chinese embassies or consulates. The adoption of the Apostille Convention simplifies this, requiring only a notarization and Apostille in the country of origin for documents to be accepted in the Beijing IP Court (and other Chinese courts).
Guidelines set by the Beijing IP Court
The Beijing IP Court, which has jurisdiction over all appeals filed against decisions made by the China Intellectual Property Administration, has issued the Guidelines for Handing Supporting Documents Certifying the Subject Qualification in Foreign-related Cases. The Guidelines outlines the required documents for foreign entities, particularly specifying the formality requirements for those from the United States, France, Germany, Belgium, Japan and South Korea. For the US, the required documents applied to Delaware and California are listed and sample documents are shown, for reference.
For foreign entities appealing to the Beijing IP Court, the following documents are required:
1) Certificate of Good Standing generally issued by the Office of the Secretary of State and signed and sealed by the Secretary of State; 2) Power of Attorney signed by the Authorized Representative;3) Certificate of Identity of the Authorized Representative; and4) Supporting documents for the signature authority.
Regarding the typical supporting documents for the signature authority, any of the following can be accepted:
For Delaware:
i) the Annual franchise tax report issued by the Office of the Secretary of State and signed and sealed by the Secretary of State;ii) the by-laws;iii) the Resolution of the board of directors;iv) Amended or restated certificate of incorporation; orv) Stamped with the recorded company seal (along with a testimony of a notary public referring to the official recordation of the company seal).
For California:
i) the Statement of Information issued by the Office of Secretary of State and signed and sealed by the Secretary of State;ii) the Restated By-laws issued by the Office of Secretary of State and signed and sealed by the Secretary of State;iii) a statement issued by the secretary or an assistant secretary of the company, certifying the authenticity of the documents such as the by-laws, the resolutions of the board of directors, and the resolutions of the shareholders’ meeting, subject to Sections 313 and 314 of the General Corporation Law of California;iv) Stamped with the recorded company seal (along with a testimony of a notary public referring to the official recordation of the company seal); orv) The attachment to the filed State of Information (Form SI-550), which may specify the signature authority of the authorized representative.
Under the Apostille Convention, the notarized documents listed above should be submitted to the Hague Authentication Authority for an Apostille, before filed with the court.
Comments
Chinese courts’ acceptance of the Apostille system represents a significant advance in efficiency and cost-effectiveness. It eliminates the need for lengthy and expensive consularization, enabling foreign parties to prepare legal documents more swiftly and time their legal actions in China more effectively.