Knowledge Highlights 20 August 2021
The Apostille Act 2020 (“Apostille Act”), which gives effect to the obligations under the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (“Apostille Convention”), will fully come into operation on 16 September 2021. Singapore acceded to the Apostille Convention and became a contracting party on 18 January 2021.
The Apostille Act facilitates 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. These measures will streamline and modernise the process for authentication of public documents for recognition across different jurisdictions and save time and expense for parties.
To support the implementation of the Apostille Act, the Apostille (Certification of Singapore Public Documents) Regulations 2021 have been issued and also come into operation on 16 September 2021.
Rationale for Apostille Act
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 is 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. With Singapore as a contracting party to the Apostille Convention, other contracting parties are 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.
SAL designated as Singapore’s competent authority
From 20 January 2021, the Singapore Academy of Law (“SAL”) has been designated as Singapore’s competent authority under the Apostille Convention and is authorised to issue apostilles on Singapore public documents for use overseas in contracting parties.
At the same time, the legalisation function of outgoing public documents issued in Singapore and intended for use in non-contracting parties with legalisation requirements has been transferred from the Ministry of Foreign Affairs to SAL.
The legalisation and apostillisation functions are henceforth centralised in one agency.
Legalisation not required for foreign public documents executed in other contracting parties
The Apostille Act exempts public documents executed in other contracting parties from any requirement of legalisation. Where previously, some government agencies may have required, as an administrative practice, that foreign documents be legalised, they may no longer do so if the documents come from a contracting party to the Apostille Convention. In its place, these government agencies may require apostilles.
Effect of apostilles issued by other contracting parties
Under the Apostille Act, the origin of a foreign public document affixed with an apostille is presumed to be sufficiently proven unless the contrary is established. This means 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 certify the contents of the underlying public document.
The Apostille Act also provides for the effect of apostilles so as to facilitate their use. The Apostille Act 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 Apostille Act also amends the Evidence Act. While the Evidence Act is not contrary to the obligations under the Apostille Convention, the amendment allows for foreign public documents from contracting parties to also be proved by an apostille being affixed on such documents. The amendment clarifies that the operation of Part 2 of the Apostille Act, 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.
The following materials are available from Singapore Statutes Online sso.agc.gov.sg: