大成研究 | 罗里达等：Analysis on Hague Convention to BOTs

I. Background Overview

China joined the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (hereinafter referred to as theHague Convention) on March 8, 2023, and the Hague Convention then entered into force in China on November 7, 2023. As an important international treaty to simplify the circulation of international documents, the Hague Convention replaces traditional consular legalisation with theApostillesystem, which can enhance the efficiency of cross-border document circulation.

According to the official statistics of the Hague Conference on Private International Law (hereinafter referred to asHCCH), as of August 29, 2024, there are 127 contracting parties to the Hague Convention, including China and United Kingdom of Great Britain and Northern Ireland (hereinafter referred to asBritain). As a long-standing capitalist country, Britain, in addition to its domestic territories, also has a wide range of British Overseas Territories and the Crown Dependencies, such as Anguilla, Bermuda, Cayman Islands and Jersey (collectively referred to asBritish Offshore Territories). These British Offshore Territories are favored by international investors and high-net-worth individuals due to the convenience of company registration, favorable tax policies and high level of confidentiality. In recent years, with the prevalence ofred-chipand VIE structures in overseas listings, companies in British Offshore Territories have become an integral part of international commercial dealings. Similarly, the proportion of companies in British Offshore Territories as the subject of disputes in domestic foreign-related litigation and arbitration has gradually increased. Regarding how these companies provide subject qualifications, authorization materials and other documents in dispute resolution cases, there are certain differences in the criteria of the review by courts at all levels and arbitration institutions in China, and there are no clear written documents for guidance as well. With the entry into force of the Hague Convention in China, there are also different opinions in practice on whether companies in British Offshore Territories can apply the Hague Convention to simplify the legalisation of relevant documents in China. Based on the text of the Hague Convention itself, the information disclosed by the embassy and the relevant judicial practice, the following analysis is provided.

II. Analysis of Existing Viewpoints

At present, there are two main views on whether companies in British Offshore Territories can apply the Hague Convention.

The first view holds that Article 1 (1) of the Hague Convention stipulates that ‘The present Convention shall apply to public documents which have been executed in the territory of one Contracting State and which have to be produced in the territory of another Contracting State.’ According to the officially published list of contracting states, the British Offshore Territories are not the nominal state parties. Therefore, companies in British Offshore Territories cannot apply the Hague Convention and should still go through legalisation in accordance with the provisions of the Civil Procedure Law of the People's Republic of China.

The second view holds that there are special historical origins relating to British Offshore Territories, and Article 13 (1) of the Hague Convention stipulates that ‘Any State may, at the time of signature, ratification or accession, declare that the present Convention shall extend to all the territories for the international relations of which it is responsible, or to one or more of them. Such a declaration shall take effect on the date of entry into force of the Convention for the State concerned.’ In view of the fact that Britain had made declarations in 1965 to extend the scope of the Convention to some British Offshore Territories, companies in these territories within the extended scope can apply the Hague Convention.

III. Treaty Basis for Extending the Application of the Hague Convention

The provisions on the extended application of the Hague Convention is stipulated in Article 13 that ‘Any State may, at the time of signature, ratification or accession, declare that the present Convention shall extend to all the territories for the international relations of which it is responsible, or to one or more of them. Such a declaration shall take effect on the date of entry into force of the Convention for the State concerned. At any time thereafter, such extensions shall be notified to the Ministry of Foreign Affairs of the Netherlands. When the declaration of extension is made by a State which has signed and ratified, the Convention shall enter into force for the territories concerned in accordance with Article 11. When the declaration of extension is made by a State which has acceded, the Convention shall enter into force for the territories concerned in accordance with Article 12.’

Under the Convention, Britain can extend the Hague Convention by declaration to territories for whose international relations is Britain responsible. Among the thirteen British Offshore Territories covered by the Hague Convention, Anguilla, Bermuda, the British Virgin Islands, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat, Saint Helena and the Turks and Caicos Islands are recognized by the United Nations as Non-Self-Governing Territories, and Britain is listed as the administering Power with responsibility for the administration of these nine Non-Self-Governing territories. In the white paper issued by the Foreign, Commonwealth and Development Office (hereinafter referred to asFCDO), it was made clear that the British Parliament has unlimited power to legislate for these territories, and the government officials of the territories are appointed by the Queen on the advice of Her Ministers and in general have responsibility for external affairs, defense and other matters. In terms of their international relations, these territories have to seek authorization from British government in order to join international organizations. Guernsey, the Isle of Man and Jersey, as the Crown Dependencies, for whose international relations and defense the British Government is responsible, and for the application of which similar declarations of extended application made by the British Government are internationally recognized, are the subject of international treaties. As a result, the above thirteen British Offshore Territories covered by the Hague Convention are in line with Article 13 and should be the territories for which Britain is responsible for their international relations.

In international treaties, the application of treaties to overseas territories is usually governed by Article 29 of the Vienna Convention on the Law of Treaties, which states, ‘Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.’ In practice, most of the HCCH treaties have been applied by one party to its overseas territory through extended declarations. For example, in the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Britain made extended declarations for its fourteen British Offshore Territories; and in the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, Britain made extended declarations for its eight British Offshore Territories. Other international treaties, such as the Convention on the Prevention and Punishment of the Crime of Genocide and a Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, have seen different contracting parties extend the application of the convention to their overseas territories through declarations.

In addition, Article 15 of the Hague Convention stipulates that ‘The Ministry of Foreign Affairs of the Netherlands shall give notice to the States referred to in Article 10, and to the States which have acceded in accordance with Article 12, of the following: e) the extensions referred to in Article 13 and the date on which they take effect.’ That is, after Britain has made the declarations of extended application, the Ministry of Foreign Affairs of the Netherlands is also required to notify the British Offshore Territories.

In light of the provisions of the Hague Convention and the above analysis, if Britain were to extend the application of the Convention to British Offshore Territories, the following four conditions would have to be fulfilled simultaneously:

a) Britain has made a declaration of the extension of the application to the British Offshore Territories;

b) Britain has notified the Ministry of Foreign Affairs of the Netherlands of the declaration of the application of this extension;

c) The Ministry of Foreign Affairs of the Netherlands has notified other contracting parties to this Convention of this declaration;

d) Other requirements of the Hague Convention (such as objections from other contracting parties, etc.).

IV. The Specific Circumstances of Applying the Hague Convention to British Offshore Territories

Upon publicly available information, the public notice on the statistics of the Hague Convention contracting parties made by HCCH itself clearly states that Britain has made declarations in respect of essentially most of the British Offshore Territories it has historically held. However, due to changes in sovereignty of certain British Offshore Territories and other reasons, there are thirteen British Offshore Territories for which the extended declarations still remain valid, namely: Anguilla, Bermuda, British Antarctic Territory, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Guernsey, Isle of Man, Jersey, Montserrat, Saint Helena and Turks and Caicos Islands, as detailed in the table.

Likewise, HCCH explicitly mentioned in its Draft Handbook On The Practical Operation Of The Apostille Convention that Britain has extended the application of the Hague Convention to British Offshore Territories. Moreover, in the statistics of all treaties signed by Britain in the British Parliament, it is stated that Britain has made extension declarations for the above-mentioned thirteen British Offshore Territories, and it is also recorded when these declarations were made and the time when they came into effect, which is consistent with HCCH.

In addition, FCDO also counts international treaties signed by Britain, and its public notice of the Hague Convention directly states that the thirteen British Offshore Territories fall within the scope of application of the Convention. The Ministry of Foreign Affairs of the Netherlands also has a summary and count of international treaties deposited in the Netherlands. According to disclosures on its official website, Britain has made extended declarations for thirty-six of its British Offshore Territories, which remain valid for thirteen of them as of now, and the relevant records are consistent with those of HCCH and the British Parliament.

In conclusion, the information from the relevant British authorities, the Ministry of Foreign Affairs of the Netherlands and HCCH should all be regarded as applicable to the Hague Convention for the current thirteen British Offshore Territories.

The Ambassador of China to the Netherlands made a declaration at the Peace Palace in the Hague when he presented the instrument of accession to the Ministry of Foreign Affairs of the Netherlands which is the depositary of the Hague Convention, to make it clear that the Convention would not apply to contracting parties that China does not recognize as sovereign states; At the same time, only India held an objection to China's accession. The thirteen British Offshore Territories mentioned above are not contracting parties to the Hague Convention, and the scope of their accession to the Hague Convention through extended declarations made by Britain should not fall under the category of ‘contracting parties to which China does not recognize as a sovereign state’ in China's declaration, and they have not objected to China's accession to this convention either. Therefore, the Hague Convention can be applied between China and the thirteen British Offshore Territories to simplify the cross-border circulation process of official documents and improve the efficiency of their circulation.

V. Judicial Practice on the Application of the Hague Convention by Companies in British Offshore Territories

Given that the Hague Convention has been in effect and applied in China for less than two years, our team once represented a company in British Offshore Territories in applying for arbitration at a leading domestic arbitration institution. In the process of submitting materials, we had multiple communications with the institution regarding the subject and authorization materials of that company. Ultimately, we processed the legalisation in accordance with the Hague Convention and successfully concluded the case. The main points of communication included:

a) There is a legal basis for the extended application of the Hague Convention, and Britain has made declarations of extended application.

b) The Chinese Embassy in Britain issued the Notice on the Cessation of Consular legalisation Services by Chinese Embassies and Consulates in Britain after China's accession to the Hauge Convention on October 25, 2023, Article 3 that ‘From November 7, Chinese embassies and consulates in Britain will cease consular legalisation services. For documents issued by Britain and intended for use inChinese mainland, please apply to the competent authorities in Britain for Apostille.’ That is, after China's accession to the Hague Convention, the business of document legalisation services between China and Britain will be uniformly regulated by the Hague Convention and handled in accordance with its provisions. If documents from British Offshore Territories cannot be certified and take effect in China in accordance with the provisions and procedures of the Hague Convention, the relevant parties may may find themselves in a difficult situation when it comes to protecting their rights.

c) Through the guidance of the embassy, we have communicated with several local foreign affairs offices in China that have authority to issue Apostille, and made it clear that they can handle the procedures for companies in British Offshore Territories to apply the Hague Convention, and China also recognizes its validity.

Conclusion

According to international rules, any public documents that need to be presented abroad, such as certificates relating to birth, death, health, marriage, graduation and degree, and others like certificates of origin, commodity inspection certificates, quarantine certificates, import certificates of goods, etc., generally require consular certification. Prior to China's accession to the Hague Convention, the legalisation of relevant documents had to go through a complex process to take effect.

The purpose of the Hague Convention is to abolish the diplomatic and consular legalisation of public documents between contracting parties and replace them with Apostille, thereby simplifying the cross-border circulation of public documents, promoting the international circulation of public documents, facilitating the development of international trade and commerce and personnel exchanges, and establishing a more conducive business environment to benefit international trade and commerce. The application of the Hague Convention between China and thirteen British Offshore Territories simplifies the legalisation process of public documents, and it does not violate China's declaration of accession and does not exceed the restrictions of the Convention and domestic law. On the contrary, this will facilitate the participation of Chinese parties in international civil and commercial litigation, reduce costs of time and paperwork, protect the legitimate rights and interests of Chinese parties, and finally enhance a better legal and internationalized business environment in China.

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本文作者

Intern Chen Xingyu contributed to this article as well.