I’m happy to welcome first-time guest poster Larissa Pochmann of the Universidade Candido Mendes, with a post on Brazil’s recent accession to the Hague Apostille Convention. Welcome, Larissa!
The Apostille Convention, also known as the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents, was drafted by the Hague Conference on Private International Law. There are eighty members of the Hague Conference (79 states and one Regional Economic Integration Organization) and 68 non-member states are connected with the Conference. According to the State Department’s helpful explanation, apostilles authenticate the seals and signatures of officials on public documents, which are documents originating from a court, a clerk of court, a public prosecutor or process server, and also administrative documents, notarial acts, and official certificates placed on documents. A public document with an apostille will be recognized in foreign countries that are parties to the Convention, regardless of the official language of the issuing country and without a requirement of diplomatic or consular legalization.
Brazil deposited its instrument of accession on December 2, 2015. The instrument will take effect eight months after the date of deposit, that is, in August 2016.[efn_note]Under Brazilian law, in order for the Convention to become effective, a Decree of Enactment by the President of the Senate must be published. Legislative Decree 148/2015 approved the Convention.[/efn_note]
The adoption of the Convention is an important step to eliminate delays related to the validation of foreign documents. Adoption of the Convention was a collective initiative of the Ministry of Justice, through the Department of Asset Recovery and International Cooperation, and the National Council of Justice. The purpose was to strengthen Brazil’s credibility in the international arena. The goal of the Brazilian government, according to Itamaraty, is to ensure a significant reduction in processing time and costs for individuals and businesses, and to save public funds.
Until the Convention becomes effective in Brazil, in order to legalize a Brazilian public document, you must obtain diplomatic or consular legalization. After August 2016, you will be able to obtain an apostille instead.
According to the US Department of State’s Bureau of Consular Affairs, notarial and authentication services are one of the oldest traditional consular functions. The refusal to provide notarial and authentication services is permissible only in limited circumstances, including: (a) acts not authorized by treaty or permissible under the law of the foreign country; (b) acts prohibited by US law or regulation; or (c) if the notarizing officer believes that the document will be used for an unlawful, improper or inimical purpose.
Appointments to obtain authentication of Brazilian documents to be used in the United States can be made at the consulates in Brasilia, Recife, Rio de Janeiro, or São Paolo, or at the consular agencies in Manaus, Fortaleza, Salvador, and Porto Alegre.
Authentication is the placing of the consular seal over the seal of a foreign authority, whose seal and signature is on file with the American embassy or consulate. A consular authentication does not attest to the authenticity of the contents of the document, but merely to the seal and signature of the issuing authority.
For this service, all seals and signature must be original, and all the dates must follow in chronological order. All documents that are in a foreign language must be accompanied by a certified (notarized) English translation.
Specific requirements must be met before the documents can be authenticated, but those requirements vary depending on the type of documents to be authenticated.
Notarization services involve translations, true copies, inscription letters, notarial signatures, or evidence of single marital status. For translations, the US embassy and consulates will only translators’ signatures if the translators are public sworn translators registered with the embassy or consulate. To translate a document for use in the United States, you should bring the original document (or a copy) and the original translation on the day scheduled.
For “true copy” service, you need only bring the original document and a copy on the ay scheduled. For an inscription letter, you must come in person and bring your US passport, your original birth certificate, and a recent 3cm x 4cm color photograph. The document will state your full legal name, birth date, place of birth, and your parents’ names.
For other notarial services, the documents must be signed in the presence of the consular officer. You must bring a photo ID (the US embassy specifies passports, driver’s licenses, or ID cards), and, if needed, bring your own witnesses, since embassy and consulate employees cannot serve as witnesses. If you are signing a document on behalf of a company, you must also bring the company’s social contract. Finally, for evidence of marital status, generally, the Civil Registry Office in Brazil will accept evidence in the form of an affidavit sworn at a US consulate in which you declare your marital status.
On the other hand, foreign documents to be recognized as valid in Brazil must be legalized by a Brazilian consulate in the foreign country. This legalization requirement applies to diplomas, school records, private powers of attorney, contracts, auction proposals, documents that formalize donations to Brazilian institutions, and all types of documents to be presented to a Brazilian court of law. All of these must be legalized by a Brazilian consular authority, or else they will not be valid. Similarly, documents contradicting judicial acts that diverge from or contradict Brazilian or local law will not be legalized by a Brazilian consulate.
Only original documents can be legalized or authenticated. The procedure is either to verify the signature on the document or authentication of the document itself by the Brazilian consular authority. A Brazilian consulate does not legalize documents outside of its jurisdiction.
The first step, if the document is not a public document, is to have the signature notarized by a notary public. Then the notary’s signature is verified by the county clerk or the secretary of state (depending on the US state).[efn_note]The Brazilian consulate in New York makes available a list of the county clerks for New York, New Jersey, and Pennsylvania on its website.[/efn_note] These are the entities responsible for verifying that the notary’s signature and seal are legitimate and that the notary is in good standing. After these steps, the document can be verified by the consulate. It can be mailed to the consulate or brought in person
After legalization, documents must then be translated, in Brazil, into Portuguese by a sworn translator. The validity of the document so legalized and translated will be assessed by the competent authority in Brazil.
It is important to note that the Apostille Convention does not alter the validity of public documents, but rather just the requirement of legalization of public documents.
Itamaraty observes that there was broad agreement that the Brazilian notary system should be enabled to issue apostilles on behalf of the Brazilian state, but whether that happens will depend on a resolution to be published by the National Council of Justice, which is still in development. So a more simplified procedure should be possible soon. Stay tuned!