Carolina Santos Pereira Leite
Lawyer at Marcos Martins Advogados
In a 2017 international ranking (Doing Business, by the World Bank[1]), Brazil was considered a bureaucratic jurisdiction in terms of the ease of starting a business, which has an impact on doing business with foreigners. Unfortunately, our heritage as a Portuguese colony, a follower of the civil law legal system based on rigid rules, does not favor document flexibility.Decree 8.660 of January 29, 2016, which came into force in August 2016, enacted the Convention on the Elimination of the Requirement of Legalization for Foreign Public Documents (“Hague Apostille Convention”), signed on October 5, 1961 in the city of The Hague, Netherlands, finally making Brazil’s accession official after 50 (fifty) years.
The Hague Apostille Convention defines the peculiarities for a document issued or authenticated by public authorities in a signatory country to be certified and have legal value in the more than one hundred other signatory countries to the agreement.
The word Apostille, of French origin, with the spelling “Apostille” comes from the verb “Apostiller”, which has the meaning of annotation, that is, it represents a record, a “certificate,” which when issued authenticates the origin of the document.
The Hague Conference on Private International Law (HCCH), a global intergovernmental organization, has developed a brief application manual that clarifies the Hague Apostille:
The Apostille Convention greatly simplifies the authentication of public documents to be used abroad. Where it applies, it abolishes the traditional and often lengthy and cumbersome legalization process, replacing it with a single formality: an authentication certificate issued by an authority designated by the State where the public document was executed. This certificate is called an Apostille[2].
The Hague Apostille Convention provides for a “single legalization”[3] of documents, with the issuance of a “Hague Apostille” by a qualified notary, which grants the document international validity so that it can be presented to any of the signatory countries, without the need for legalization by the Consulate General of the country where the document is to be used.
Apostille does not exclude any additional requirements that may be requested by a particular country, such as a translation of the document, so it is advisable to check with the recipient of the document about the existence of additional conditions.
Following the entry into force of the Hague Apostille Convention, Resolution 228 of June 22, 2016 was published by the National Council of Justice (CNJ), the body responsible for regulating and coordinating the application of the Convention in Brazil.
Article 20 of the resolution prescribed that foreign documents that had been presented to Brazilian embassies and consular offices in countries that are part of the Hague Apostille Convention would only be accepted until February 14, 2017, after which all documents would need to be apostilled again.
This deadline was the subject of much discussion, since companies and individuals would have to retrieve their old documents, regardless of the date, and have them presented at the registry office to adopt the apostille in the new format.
However, the Center for the Study of Law Firms (Cesa), having verified the operational adversity that this wording would bring, filed an administrative proceeding before the CNJ requesting the revocation of the article, on the grounds that the existence of a time limit could hurt the perfect legal act and legal certainty, since such documents had already been submitted to consulates previously[4].
When analyzing the administrative process, the Full Bench of the CNJ decided to revoke the article, maintaining the validity of foreign documents already consularized prior to the application of the Hague Apostille Convention in Brazil.
The Apostille must conform to the model in Annex I of the Resolution, with the following requirements: (i) the shape of a square with a side of at least 9 (nine) centimeters; (ii) the Coat of Arms of the Federative Republic of Brazil and the CNJ logo in the header; (iii) the title in French “Apostille (Convention de La Haye du 5 octobre 1961)”; (iv) fixed fields written in Portuguese, English and French; (v) fixed fields written in Portuguese, English and French; and (vi) the name of the signatory of the public document or, in the case of unsigned documents, an indication of the authority that affixed the seal or stamp, together with the position or function held and the institution it represents.
Apostilles are issued through the Electronic Information and Apostilles System (Sei Apostila) created by the CNJ, which has a single system for issuing apostilles throughout the country, which is issued electronically using a digital certificate.
The signatory of the document, or interested person, requests the issuance of the apostille electronically, confirming the authenticity of the signature, and it will be printed on secure paper made available by the Brazilian Mint, with the stamp and signature of the competent authority, which in Brazil will be carried out by Notaries registered by the CNJ.
The new procedure offers a more productive and efficient use of public resources, since the Ministry of Foreign Affairs carries out approximately 1.5 million document legalizations a year, a service which they will no longer be able to perform themselves.[5]
The entry into force of the Hague Apostille Convention in Brazil has brought several benefits to Brazilian citizens and companies that work with documents internationally, such as diplomas, birth, marriage or death certificates, or even commercial registrations and documents issued by courts, speeding up the validation process, reducing costs and time in processing.
Marcos Martins Advogados, with its team of multidisciplinary lawyers, remains at your disposal to help you define the best strategies and regularize the documentary situation of Brazilians and foreigners in general. If you are interested in our participation for your legal regularization, please contact us.
[1] DOING BUSINESS. World Bank Group. Brazil. Available at: <http://portugues.doingbusiness.org/data/exploreeconomies/brazil>. Accessed on: March 12, 2018.
[2] HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW (HCCH). How to join and implement the Hague Apostille Convention: Brief Implementation Guide – Conférence de la haye de droit international privê. 2011. Disponível em: <https://assets.hcch.net/docs/0cfe4ad6-402d-4a06-b472-43302b31e7d5.pdf>. Accessed on: 07 Mar. 2018.
[3] NATIONAL COUNCIL OF JUSTICE. The Hague Apostille Convention enters into force in Brazil. CNJ. Brasília, Aug. 2016. Available at: <http://www.cnj.jus.br/noticias/cnj/83079-entra-em-vigor-no-brasil-a-convencao-da-apostila-da-haia>. Accessed: 07 Mar. 2018.
[4] AGUIAR, Adriana. CNJ maintains validity of foreign documents. Valor Econômico. São Paulo, Oct. 2017. Legislation. Available at <http://www.valor.com.br/legislacao/5175408/cnj-mantem-validade-de-documentos-estrangeiros>. Accessed on: 07. Mar. 2018.
[5] NATIONAL COUNCIL OF JUSTICE, op. cit.
