Knowledge Highlights 16 November 2020
On 2 November 2020, the Apostille Bill (“Bill”) was passed in Parliament. The Bill gives effect to the obligations under the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (“Apostille Convention”). This will facilitate cross-border use of public documents by abolishing the requirement of legalisation for public documents from fellow contracting parties, and replacing legalisation with the use of a one-step process involving the use of apostilles that will be internationally accepted and recognised.
Rationale for the Bill
Cross-border transactions and activities often involve the use of public documents issued by public authorities from one state, to support transactions taking place in another state. For example, businesses seeking to acquire properties overseas may need to produce incorporation documents and official business profiles. Many states require that foreign public documents be “legalised” before they are recognised and accepted in those states. Legalisation describes the multi-stage process whereby the signature, seal or stamp on a local public document is certified as authentic by a series of public officials along a “chain”, to a point where the ultimate authentication is readily recognised by the foreign state of destination. This process can be cumbersome, costly and time consuming.
The Apostille Convention replaces the process of legalisation with a one-step process involving a single certificate (known as the apostille) issued by the state’s designated competent authority. When Singapore becomes a contracting party to the Apostille Convention in 2021, other contracting parties will be obliged to waive the legalisation requirement for public documents issued by Singapore authorities, and must accept the apostilles issued by Singapore’s designated competent authority. Likewise, Singapore’s authorities will be obliged to accept apostilles in place of legalisation for incoming foreign public documents from other contracting parties, where applicable.
In his second reading speech on the Bill, the Second Minister for Law Edwin Tong noted that there are 118 contracting parties to the Apostille Convention (including the US, the UK, India and EU Member States), and explained that acceding to the Apostille Convention will bolster Singapore’s reputation as a bustling and interconnected hub and signify Singapore’s commitment as a global player in facilitating international movements, transactions and activities.
Key features of the Bill
The key features of the Bill are set out below.
SAL to be designated as Singapore’s competent authority
The Bill designates the Singapore Academy of Law (“SAL”) as Singapore’s competent authority under the Apostille Convention and authorises SAL to issue apostilles on Singapore public documents.
Currently, the Ministry of Foreign Affairs (“MFA”) performs the legalisation function in respect of outgoing documents issued out of Singapore. The Bill transfers the legalisation function from MFA to SAL. This function is needed for outgoing public documents intended for use in contracting parties with legalisation requirements, until Singapore becomes a party to the Apostille Convention. This function will continue to be needed for outgoing public documents intended for use in non-contracting parties with legalisation requirements. The legalisation and apostillisation functions will then thereafter be centralised in one agency.
The transfer of the legalisation function from MFA to SAL ties in with SAL’s current authentication services, making it more convenient and user-friendly for the legal industry and the public. SAL is expected to take over the legalisation function from MFA by January 2021.
Public documents executed in other contracting parties exempted from legalisation requirement
The Bill exempts public documents executed in other contracting parties from any requirement of legalisation.
Although Singapore’s written laws do not currently require incoming foreign public documents to be legalised before they are recognised and accepted in Singapore, some agencies would, as an administrative practice, require that foreign documents be so legalised.
Under the Bill, government agencies may no longer require such foreign documents to be legalised if the documents come from a contracting party to the Apostille Convention. In its place, these government agencies may require the apostilles.
Effect of apostilles issued by other contracting parties
Under the Bill, the origin of a foreign public document affixed with an apostille is presumed to be sufficiently proven unless the contrary is established. This means that the apostille is presumed proof of:
- the authenticity of the signature on the document;
- the capacity in which the person signing the document has acted; and
- where appropriate, the identity of the seal or stamp that the document bears.
As with the current position for legalisation, the apostille does not, however, certify the contents of the underlying public document.
The Bill also provides for the effect of apostilles so as to facilitate their use. The Bill does not require apostilles to be used, unless as a replacement for the formality of legalisation which certain government agencies may have imposed.
Thus, for foreign public documents which government agencies do not require to be legalised, apostilles may not subsequently be required. This is to ensure that agencies do not take a regressive step by requiring the formality of an apostille when there had previously been no other formality requirements. However, apostilles may be required for new classes of foreign public documents created after Singapore’s accession to the Apostille Convention.
Amendment to the Evidence Act
The Bill also contains a related amendment to the Evidence Act. While the Evidence Act is not contrary to the obligations under the Apostille Convention, this amendment will allow for foreign public documents from contracting parties to also be proved by an apostille being affixed on such documents.
The proposed amendment clarifies that the operation of Part 2 of the Bill, which applies to foreign public documents sought to be produced in Singapore, is not affected by the sections of the Evidence Act which relate to the way in which public documents are proven.