The Convention of October 5, 1961, adopted at The Hague, the Netherlands, Abolishing the Requirement of Legalization of Foreign Public Documents, also known as the Apostille Convention or the Hague Convention (the “Convention“), is an international treaty that facilitates the use and recognition of public documents abroad. The purpose of the Convention is to abolish the traditional requirement of legalization of foreign public documents and replace such process with the issuance of a single certificate known as an “Apostille” by a competent authority in the place where the document was issued. In this way, the authenticity and validity of the public instrument abroad is accredited by means of a single process, making the procedure more efficient and economical.
Article 1 of the Convention indicates the documents that shall be considered as public documents and to which the Apostille shall be applicable, stipulating that notarial documents shall be considered as public documents within the meaning of this Convention (…).
Article 2 of the Convention stipulates that “each Contracting State shall exempt from legalization the documents to which this Convention applies and which are to be presented in its territory“.
The Convention has more than 125 contracting parties, including Chile, making it one of the most widely applied multilateral treaties in the field of international legal cooperation.
The Convention entered into force in Chile on August 30, 2016 and it was Law 20.711 (the “Law”) the one in charge of implementing such Convention. In this regard, the aforementioned Law introduced certain amendments to the Code of Civil Procedure, among others:
– Adding article 345 bis, which literally reads:
“Public instruments executed in a State Party to the Hague Convention Abolishing the Requirement of Legalization of Foreign Public Documents shall not be subject to the legalization procedure if they have been apostilled by the authority designated by the State from which the instrument originates.
– Adding the following paragraph to Article 420 of the Organic Code of the Courts:
“Notwithstanding the foregoing, public documents that have been authenticated through the apostille system, as provided in Article 345 bis of the Code of Civil Procedure, shall not require notarization to have the value of public instruments. The apostille shall not require certification of any kind to be considered authentic.”
It is the case that the Commercial Registry of the Real Estate Registry of Santiago, has chosen as a criterion to reject the registration of a public deed of corporate modification granted, in this case, in Spain, also a member country of the Convention, and which is duly apostilled. The basis for the rejection of the registration is that the Regulation of the Commercial Registry, which dates back to 1886, in its article 19, refers to articles 63 and 64 of the Regulation of the Registry of the Real Estate Registry of 1857. Ignoring the content and scope of the Convention and the law issued on the occasion of its ratification and entry into force in Chile.
Having said the above, we believe that the Commercial Registry of the Real Estate Registry of Santiago is not duly applying the rules of the Agreement and those contained in the Law, being this a situation that should be definitively settled by the legislator or the competent governmental authority. In the judicial exercises, by which the ordinary courts of justice are asked to pronounce -for a particular case on this situation- the resolutions obtained are limited to ask the CBR to pronounce and the latter to reply its argumentation based on nineteenth-century rules, which should be understood to be repealed.
The Convention is clear in stipulating the responsibility and obligation of the signatory State to exempt from consular legalization documents that meet the requirements of the Apostille and even Chilean national legislation recognizes that public instruments, among which are clearly public deeds (Article 403 of the Organic Code of Courts) will only require the Apostille to have the value of a public instrument.
Furthermore, applying the sources of law and the principle of hierarchy of norms, it is the Hague Convention that abolishes the old procedure of legalization of public instruments, as well as Law No. 20.711, which implements it in our country, which should prevail over the Regulations of the Commercial Registry and the Real Estate Registry.
However, we believe that the Santiago Property Registrar should be respectfully urged to reconsider his interpretation, given that, in practice, he seems to be ignoring precepts established in an international treaty duly ratified by Chile, and we trust that he will be able to respond to the demands of the present times.
For further information please contact Ainhoa Yeregui
Ontier LLP is authorised and regulated by the Solicitors Regulation Authority, registration number OC327289.
