The Ratification of Apostille Convention from Dispute Resolution Perspective

President Joko Widodo and his cabinet continually strive to ease Indonesia’s business environment, either for foreign and domestic investment. The Indonesian Government has recently been ratified Convention Abolishing the Requirement to Legalize Foreign Public Document (“Apostille Convention“) by enacting Presidential Regulation Number 2 of 2021 (“PR 2/2021“), which repealed the obligation to legalize foreign public documents among convention member states.

The Apostille Convention did not apply absolutely to the entire type of document. In this case, the provision as mentioned above exclusively applies to public documents. Furthermore, Under Article 1 (a-d) Apostille Convention stated that the public documents limited to:

1. documents emanating from an authority or an official connected with the court or tribunal of the state, including those emanating from a public prosecutor, a clerk of a court or a process-server;
2. administrative documents;
3. notarial acts;
4. official certificate which is placed on documents signed by persons in their private capacity. Nevertheless, the diplomatic or consular and administrative commercial documents that directly intersect with customs are excluded.

Before Apostille Convention, foreign document legalization obligation regulated under Regulation of the Minister of Foreign Affairs Number 3 of 2019 concerning General Guidance on Procedures for Relationship and Cooperation Abroad by Local Government (“MFAR 3/2019“). In essence, MFAR 3/2019 regulates that all documents made or issued in Indonesia which will be used overseas should be legalized by the Ministry of Law and Human Rights, Ministry of Foreign Affairs and Indonesian Embassy. This stipulation also applies to foreign public documents that will be used in Indonesia.

Under Apostille Convention, the legalization as mentioned above method is no longer necessary and has been replaced with an apostille certificate. Apostille Convention may ease the circulation of documents in the trial from the court dispute resolution perspective, specifically for lawyers. For example, to become a lawful representative before the court, the lawyer should possess the Power of Attorney (“PoA“). If the client is domiciled overseas, the legalization of PoA often consumes enormous time due to its complexity and inefficiency since the client must pay a legislation fee. Nevertheless,  the PoA signed between the attorney and a client may not be considered a public document under Apostille Convention except it is made before or legalized by the notary.

Based on the explanation above, the enactment of PR 2/2021 is normatively propitious. On the other hand, the perplexity may happen in its implementation since currently there is no implementing regulation for Apostille Convention. The mentioned Implementing regulation needed to provide more detailed terminology and type of public documents as well as the designated competent authority to issue Apostille Certificate.

For example, Apostille Convention stipulates that a “competent authority” issues the apostille certificate. However, until the issuance date of this article, the competent authority remains unclear. Another possible issue is that since the Apostille Convention grants each member state to determine the type of public documents, the type of public document may differ. Based on that, there may be other debates between two disputing parties from different member states on which documents may be used before the court as evidence. The mentioned issue may occur since the Apostille Certificate certifies the authenticity of the signature.

Practically, Indonesian courts still consider that documents signed in Indonesia for overseas use (or otherwise) must be legalized by the Ministry of Law and Human Rights, Ministry of Foreign Affairs, and Indonesian Embassy.

Jurisdito Hutomo H, Dianyndra K Hardy