FIRST INTERNATIONAL FORUM ON E-NOTARISATION AND
LEGALISATION
30/31 MAY 2005, NEVADA, USA



To download [PDF] the French and Spanish versions of the Forum's Conclusions, the programme and the list of participants, click
 HERE


ENGLISH VERSION OF THE CONCLUSIONS :


First International Forum on e-Notarization and e-Apostilles

Jointly organised by the Hague Conference on Private International Law (HCCH) and the International Union of Latin Notaries (IULN), hosted by the National Notary Association of the United States of America (NNA), held on 30 and 31May 2005 in Las Vegas, Nevada, USA

Over 170 government representatives (including several from competent authorities designated under the Apostille Convention), experts in notarial practice, and other dignitaries and officials from 33 States gathered in Las Vegas (Nevada, USA) to attend the first international Forum on e-Notarization and e-Apostilles. Jointly organised by the Hague Conference on Private International Law and the International Union of Latin Notaries, and hosted by the National Notary Association of the United States, the Forum attendees enthusiastically reviewed the potential of electronic notarization and electronic Apostilles.


Unanimous agreement was reached on the following Conclusions and Recommendations:

1. Echoing Recommendation 4 adopted by the Special Commission (SC) meeting of the Hague Conference held from 28October to 4November 2003 to review the practical operation of the Apostille Convention (and the Service and Evidence Conventions), the Forum attendees emphasize that the Apostille Convention operates in an environment that is subject to important technical developments. Although this evolution could not be foreseen at the time of the adoption of the Apostille Convention, the Forum attendees stress that modern technologies are an integral part of today’s society and their usage a matter of fact. In this respect, the Forum attendees also endorse the SC’s conclusion to the effect that the spirit and letter of the Convention do not constitute an obstacle to the usage of modern technology; on the contrary, the application and operation of the Convention can be further improved by relying on such technologies, thus enhancing the mutual confidence as a basic principle for the operation of the Convention. It is the view of the participants that an interpretation of the Convention in the light of the principle of functional equivalence permits competent authorities to both keep electronic registers and issue electronic Apostilles to further enhance international legal assistance and government services.


2. Most countries have now enacted legislation recognizing the legal effect of electronic signatures and electronic documents. States are encouraged to continue reviewing and enhancing the legal framework for allowing the use of electronic signatures and electronic documents.


I. Practical Considerations


A. Electronic Apostille Registers


3. States and their competent authorities are encouraged to further explore the possibilities of setting up electronic Apostille registers. The general consensus was that this goal was easily attainable using commonly available technologies.

4. There was general agreement that electronic registers could provide value to any “interested person” (see Art. 7(3) of the Apostille Convention) needing to verify the origin of an Apostille by requesting that the competent authority verify whether there is a register entry corresponding to the Apostille presented to the interested person.

5. It was further concluded that electronic registers would promote and facilitate usage of the registers, which are now hardly ever used in a purely paper form environment; thus, electronic registers may provide a powerful deterrent to fraud and abuse of the Apostille.

6. The information in electronic registers shall include: (i) the number and date of the Apostille, (ii) the name and capacity of the person who has signed the underlying public document, and (iii) if the document is not signed, the name of the authority which affixed the stamp or seal on the public document.

7. It was agreed that electronic registers should be made available online.

8. An “interested person” should be considered any person who has been presented with an Apostille and who requests a verification of the relevant register entry with the competent authority that records the Apostille.

9. In order to query an electronic register database online, the interested party should enter at least the number and date of the Apostille appearing on the Apostille.

10. It was agreed that electronic registers could be maintained to record the issuance of paper Apostilles.

11. The records in electronic registers should be maintained so as to ensure continued access over a long period of time.


B. Use of Information Technology (IT) in issuing paper Apostilles


12. The Forum endorses Conclusion23 adopted by the Special Commission in 2003:

“23. The SC identified the following four stages in the issuing of an Apostille in respect of which the application of IT might be considered and thought there was no reason in principle – as far as the use of IT proves to be cost-efficient – why IT should not be applied:

1. maintenance of a secure electronic database of signatures for the purpose of verifying the signatures appearing on public documents for which an Apostille is requested;

2. use of word-processing technology to complete the information to appear on the Apostille;

3. use of electronically reproduced signatures of the issuing authority to be inserted through secure electronic means and printed on the Apostille;

4. maintenance of an electronic register.”


C. Electronic Apostilles


13. Competent authorities are encouraged to issue electronic Apostilles.

14. Competent authorities are encouraged to issue electronic Apostilles for public documents submitted in both paper and electronic form. Because the Apostille does not certify the content of the underlying public document but only its origin, competent authorities can issue electronic Apostilles either for public documents received in paper form and subsequently scanned by the competent authority, or for public documents received in electronic form.


15. However, electronic Apostilles need to fulfil certain basic requirements to ensure non-repudiation:

In particular, the fact of the issuance of the Apostille by the competent authority must be independently verifiable.

In addition, the Apostille must be invalidated if the underlying document is improperly modified as when, for example, a person attempts to remove the Apostille from the public document.

16. These requirements do not in any way require the use of one specific technology, nor are they intended to privilege the use of one specific technology over another.


D. Electronic Notarization and Other Electronic Public Documents

17. States are encouraged to develop technologies to facilitate the performance of electronic notarization and the issuance of other electronic public documents.
18. However, electronic notarial acts and other electronic public documents need to fulfil certain basic requirements to ensure non-repudiation:
In particular, the fact of the issuance of the electronic public document must be independently verifiable.
In addition, the document must be invalidated if it is improperly modified as when, for example, a person attempts to alter the contents of the public document.
19. These requirements do not in any way require the use of one specific technology, nor are they intended to privilege the use of one specific technology over another.


II. General Recommendation

20. In order to assist States in the development of electronic Apostilles registers, the issuance of electronic Apostilles and electronic public documents, it would be desirable for detailed guidelines to be drafted by the Permanent Bureau of the Hague Conference in consultation with outside experts.