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Brazil shall soon become a Contracting State of The Hague Apostille Convention. But what will really change?

On 6 July 2015, Legislative Decree No 148, signed by the President of Senate, has put Brazil on its way to be a party to The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, also known as the Apostille Convention (full text available at https://www.hcch.net/en/instruments/conventions/full-text/?cid=41).

On 2 December 2015, Brazil deposited its instrument, and sixty days after the elapse of the six-month period for objections to Brazil’s accession, the Apostille Convention shall enter into force between Brazil and other Contracting States that have not opposed Brazil’s accession. Thus, on 14 August 2016 Brazil shall become a Contracting State to the Apostille Convention.

Upon the entering into force of the Apostille Convention, Brazil shall both (i) no longer require the legalisation, by Brazilian consulates located in Contracting States, of documents produced in said countries, which legalisation shall be replaced by the Apostille; and (ii) be ready to issue Apostilles for persons who wish to take documents produced in Brazil to other Contracting States.

The idea of elimination of the requirement of legalisation is likely to induce the understanding that the procedure to validate a document for its use in Brazil shall be significantly shortened. However, that is not totally accurate.

Currently, a document produced abroad requires more than its legalisation for its validation and use in Brazil. The current requirements comprise: (i) legalisation; (ii) translation into Portuguese by a translator accredited with a Companies’ Register; and (iii) registration of original document and corresponding translation with a register of deeds and documents.

The Apostille Convention shall only remove the first requirement (legalisation): translation and registration will still be required.

As to the apostille issue and appending procedures, the Brazilian National Council of Justice (CNJ) enacted Resolution 228, on 22 June 2016. [Click here to access the full wording of the resolution]

The authority to issue and append apostilles to documents produced in Brazil is now basically vested with the staff of Internal Affairs in Justice (whenever the Judiciary Power is an interested party) and with notaries public, within the limits of their jurisdictions.

An online system — SEI Apostila — has been created and will be managed by CNJ. In summary, the system is intended to (i) portray the list of Contracting States; (ii) show the identification and access information of all authorities accredited to issue and append apostilles; and (iii) allow any interested person to check the authenticity of apostilles.

However, the SEI Apostila system itself shall only be in place and ready for use after further regulation, which shall depend on analysis to be conducted by the so-called Permanent Commission for Information Technology and Infrastructure.

The fact that as from 14 August 2016 every apostille shall be issued through SEI Apostila, as well as the amount of work that seems necessary to put it in full operational form, we foresee some challenges ahead for those who will need to obtain an apostille in Brazil in the near future.

On the other hand, in light of the circumstance that, alongside the obtaining of apostille, the translation of a foreign document into Portuguese by an accredited translator, as well as its registration with a register of deeds and documents, shall still be required, Brazil’s adhesion to the Apostille Convention is not that significant in practice.

After all, the extent to which the elimination of the legalisation requirement shall contribute to the effective reduction of the timeframe of the whole validation procedure is yet to be confirmed.

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July 26, 2016