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Business Law Today

April 2024

April 2024 in Brief: International Business Law

Mike Tallim

April 2024 in Brief: International Business Law

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Canada Is Now Party to the Apostille Convention—A Welcome Change to Facilitate the Use of Public Documents Abroad

By Michel Gélinas and Jonathan Bilyk, Davies Ward Phillips & Vineberg LLP

Governments and organizations may require foreign public documents (such as notarized materials or government-issued certificates) to be “authenticated” and then “legalized” before they will accept such documents. Canada’s recent adoption of the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (the Convention) simplifies this process for the use of Canadian public documents in other states that are party to the Convention by removing the often time-consuming second step of legalization. A Canadian public document may now be used in a state that is a signatory to the Convention if the document has been authenticated by the relevant Canadian authority. There are more than 125 contracting parties to the Convention, including the United States and United Kingdom (a list of the current parties may be found here).

Authentication and legalization

Public documents generated in a state that is not party to the Convention usually must be authenticated and then legalized before they may be used abroad. Authentication, which is usually completed by a governmental authority of the state from which the document originates, refers to the authority’s verification of the signature of a public official (such as a notary) found on a document, the capacity in which such official signed the document, and, if applicable, the identity of any official stamp or seal affixed to the document. Legalization, which effectively serves as a second verification of the signing official’s signature and capacity, is typically completed by a local representative of the destination state (such as its embassy or consulate) based in the jurisdiction in which the document has been generated. Legalization can be time consuming and administratively burdensome.

Apostille certification under the Convention

In contrast, a public document that is generated in one Convention state to be used in another Convention state requires only that the state from which the document originates certify the authenticity of the signature, the capacity in which the person signing the document has acted, and, where applicable, the identity of the seal or stamp that it bears. There is no requirement for the second step of legalization. The required certification may be provided on the document itself or by way of a separate document (an allonge). In some cases, certain documents may be exempted altogether from the certification requirement, such as where specific agreements between two signatory countries are in place.

In Canada, certification of a public document for use in another Convention state is obtained through the customary authentication process. Documents authenticated by a Canadian authority will now be issued an apostille certificate that will be affixed to the underlying document and allow the document to be used in another signatory state.

Under the Convention, some documents may be eligible for authentication without notarization. For example, in the Province of Ontario, the following are eligible documents: vital statistics documents; business registry documents issued as of 1991 by the Business and Personal Property Branch or the Ontario Business Registry; court-issued documents; and Ontario-issued public postsecondary degrees, diplomas, and transcripts.

If a Canadian document is intended to be used in a state that is not a party to the Convention, the customary authentication-then-legalization process described above must be followed, subject to any additional or differing requirements that are stipulated by the destination state.

Who is responsible for issuing apostille certificates?

In Canada, the authority responsible for authentication and issuing an apostille certificate depends on where the underlying document has been issued or notarized. For example, the responsible authority for documents issued and notarized in Ontario is Official Documents Services (ODS); in Quebec, le Ministère de la Justice (Direction générale des registres et de la certification); and in Alberta, Official Documents and Appointments. (For documents issued or notarized in other Canadian jurisdictions, see here.)

For direct information, please refer to the Canadian Global Affairs website (“Changes to authentication services in Canada” and “Authentication of documents: 1. Before you start”).

Exploration of Digital Euro Continues; EU Crypto-Asset Regulation to Take Effect

By Joy Momin, LLM candidate at Università Bocconi

The digital euro is a proposed central bank digital currency (CBDC) that would be issued by the European Central Bank (ECB). It would function as an electronic form of cash alongside physical euro banknotes and coins.

The ECB is currently in the preparation phase of the digital euro project. This phase is expected to include two stages, with the first lasting until late 2025, and involves development and testing to “lay foundations for the potential issuance of a digital euro.” It followed the investigation phase, which explored design, functionalities, and societal impact. The ECB seeks to maintain the central bank’s role in the payments ecosystem and strengthen financial stability and monetary sovereignty.

The digital euro would be universally accessible to all residents and businesses within the eurozone for securely facilitating all kinds of digital payments, including online transactions, point-of-sale purchases, and peer-to-peer transfers. If issued, the digital euro is promised to offer secure, fast, and efficient digital payments while maintaining privacy and financial stability.

No decision has been made yet on whether to actually introduce it.

The Markets in Crypto-Assets Regulation (MiCA), an EU regulation adopted in 2023 that establishes a legal framework for crypto-assets across EU member states, is expected to come into full effect by the end of 2024. The digital euro would be in compliance with MiCA, with MiCA’s e-money regulations coming into effect in June 2024.