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Taking a business global affords new opportunities for revenue streams and growth. But one of the many challenges of doing business internationally is that to conduct any transactions, such as opening a bank account, the business is required to certify and authenticate certain documents such as articles of incorporation.
Even though such documents may be valid and acceptable in the United States, foreign jurisdictions require that businesses go through extra hoops to ensure these corporate documents are authentic.
It’s a complex process that involves obtaining authentication from a series of officials in both the country where the document was issued and with an official residence, such as embassy or consulate, of the country where the document will be used.
As you seek to obtain compliance with this document certification process, a business entity will need to understand the correct process for authenticating relevant documents. There are two paths to accomplish this—apostille and authentication.
An apostille is a form of authentication that seeks to simplify the process of legalizing and authenticating public documents so that they can be recognized internationally in foreign countries that are members of the 1961 Hague Convention Treaty.
Documents are authenticated with an apostille (basically a certificate) issued by your Secretary of State’s office or by other authorities such as U.S. federal court clerks or the U.S Department of State Office of Authentications.
Apostilled documents don’t typically require the need for additional certification or legalization by the embassy or consulate of the foreign country where a business intends to operate.
However, there may be exceptions, and an “authentication” (which we cover in the next section) may also be necessary. If in doubt, it is best to check with the embassy or consulate in the country an entity intends to establish a business in.
If an entity is intending to establish a business presence in a country that doesn’t participate in The Hague Convention, then it must follow an authentication process for validating corporate documents.
Authentication involves having the documents in question notarized (a sealed certificate that confirms the authority of a public official, usually a notary public), reviewed by state or county officials, then certified by State Department officials.
Once an authentication has been secured, a business must then seek certification in the foreign jurisdiction. This process is called “legalization” and takes place at the country’s embassy or consulate in the U.S.
Authentication and apostille are not interchangeable, and the correct process must be followed. Making the wrong choice could result in a document being rejected by the foreign country.
For example, Canada, a huge U.S. trading partner, is not a member of The Hague Convention, so the apostille process does not apply. If an apostille is mistakenly submitted for authentication for use in Canada, it will be rejected and rendered unusable. A business must obtain a clean version before re-submitting to an embassy or consulate of Canada.
Because apostilles and authentication procedures take time (in some instances processing times can take several weeks) and require in-person visits to consulates and embassies, understanding the requirements of the country into which you’re expanding is essential.
It’s a tedious exercise in due diligence. For example, all documents must be original and complete; no copies are allowed. If other documents or annexes are referred to, they must be attached for review. Furthermore, if a document needs translation, a sworn translator or legalized translation may be required by the foreign authority. It’s a lot to cross-check.
Companies should also be prepared to hand over documents to an unknown authority for what could be some time. Proper planning must be factored in to ensure other areas of the business aren’t impacted by the loss of control of these documents.
Due diligence must also be exercised if a company is using documents issued by one non-U.S. country in another non-U.S. country. For example, in one instance, the Chinese embassy in India required a business owner to use a certain type of paper and requested the original passport of the signor. Others may require a driver’s license as evidence of identification.
Finally, no notary is the same. The function of notaries is different from country to country, and any nuances this may bring to the apostilles and authentication process should be considered.
These may seem like small details, but each country has its own unique requirements. If even one step or requirement is missed in the process it could delay the ability to start a global endeavor.
Navigating the complexities of the apostilles and authentication process is essential to ensuring global success. As such, it’s important to plan for what can be a time-consuming and frustrating process. This may be unfamiliar territory for many companies. In which case, it may be beneficial to use a legal services provider.
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