Current legalization requirement
Under Indonesian regulations - although the provisions regulations in Indonesia are somewhat vague and have raised various interpretations from the legal community on the certain types of documents that require legalization - for certain types of documents signed outside Indonesia to be used in Indonesia, the party signing the documents needs to follow certain steps. One of the steps is having the documents legalized by the following authorities (in this order):
- the local state's law ministry and/or foreign ministry
- the local state's Indonesian Embassy/Consulate
Legalization of documents is the act of verifying the signature of an authorized official, or a stamp or seal, by comparing the signature or seal in a given document with the specimen available in the database of the government office. The process does not include verification of the substantial matter of a document.
Clients may be aware that certain types of documents (e.g., circular resolutions of shareholders) signed outside Indonesia that will be used in Indonesia arguably need to be notarized by notaries, and then legalized at the nearest Indonesian Embassy/Consulate where the signing takes place.
For documents that are signed in Indonesia but will be used outside Indonesia, subject to the regulations applied by the state where the documents will be used, legalization is mainly conducted by the Minister of Law and Human Rights and the Minister of Foreign Affairs of the Republic of Indonesia.
The Convention was signed on 5 October 1961, and came into force on 21 January 1965. The Convention now has 120 contracting states. The HCCH (Hague Conference on Private International Law) website provides a list of the contracting states and their competent authorities.
The purpose of this Convention is to simplify the authentication of public documents that will be used abroad. The Convention abolished the legalization requirement, which often takes time and is costly, and replaced it with a single Apostille certificate issued by the appointed competent authority in the state where the public documents are executed.
The Convention applies to public documents executed in the territory of one contracting state that have to be produced in the territory of another contracting state. Documents that fall under the definition of public documents only need to be "apostilled" if signed abroad.
Under the Convention, "public documents" include the following:
- documents originating from an authority or an official connected with the courts or tribunal of a state, including those originating from a public prosecutor, a clerk of a court or a process-server (huissier de justice)
- administrative documents
- notarial deeds
- official certificates that are attached to documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date, and official and notarial authentications of signatures
The Convention does not apply to the following documents:
- documents executed by diplomatic or consular agents
- administrative documents dealing directly with commercial or customs operations
To comply with the Convention, Indonesia must deposit its instrument of accession with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, and provide the name of the designated competent authority in Indonesia. That will be followed by a six-month period in which the other contracting states can raise objections. The Convention will come into force between Indonesia and the contracting states that did not raise an objection to the accession on the 60th day after the end of the six-month objection period.
However, the Indonesian government excludes documents issued by Indonesian prosecutors (kejaksaan) from the category of "public documents". The presidential regulation does not elaborate on this.
Given the timeline set out above, we can expect that it will be at least late-2021 before the Convention comes into force in Indonesia. Further, it is not yet clear whether the government will issue implementing regulations to clarify the criteria and give examples of public documents. It is also not clear whether following the effective date of this Convention Indonesian courts will abolish the requirement of legalization of a power of attorney for the lawyers to represent their clients before the Court.
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This client alert was issued by HHP Law Firm (Hadiputranto, Hadinoto & Partners), a member firm of Baker McKenzie International, a global law firm with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a "partner" means a person who is a partner or equivalent in such a law firm. Similarly, reference to an "office" means an office of any such law firm. This may qualify as "Attorney Advertising" requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome."