07 Jul 2022
Ministry Confirms Legalisation of Foreign Public Documents for Use in Indonesia No Longer Required

After a period of uncertainty, the Indonesian Ministry of Foreign Affairs (“MOFA”) has confirmed that public documents issued by authorities / officials of states that are party to the Convention to Abolish the Requirement for Legalisation of Foreign Public Documents (the “Convention”) no longer need to be legalised by the Indonesian embassy / permanent mission in the jurisdiction concerned before they can be used in Indonesia.

This step finally allows parties to benefit in practice from Indonesia’s ratification of the Convention at the beginning of last year (for an ABNR’s update on Indonesia’s ratification of the Convention, please refer to our earlier update here).

Further details on the legalisation exemption are provided in a circular sent by MOFA to all of Indonesia’s foreign representations on 4 June (the “Circular”). According to the Circular, legalisation will be substituted by apostille certification carried out by the competent authority in the relevant jurisdiction. Information on the states that are party to the Convention, the names, contact details and official websites of competent authorities, and the cost of obtaining an apostille certificate can be found here.

It should be noted that “public documents” within the meaning of the Convention are restricted to those “emanating from an authority or official connected with a court or tribunal of the State (including documents issued by an administrative, constitutional or ecclesiastical court or tribunal, a public prosecutor, a clerk or a process-server); administrative documents; notarial acts; and official certificates, which are documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date, and official and notarial authentications of signatures.”[1] This means that documents such as circular resolutions and powers of attorney signed outside Indonesia can only be apostilled if they are prepared by a local notary as a notarial deed. However, in certain jurisdictions that are a party to the Convention, notarization of such documents may not be available.

Further, under certain Indonesian laws, the Indonesian Embassy must still be involved, such as to confirm that a jurisdiction where an arbitral award was rendered and whose enforcement is sought in Indonesia is bound by a bilateral or multilateral agreement with the Republic of Indonesia on the recognition and enforcement of international arbitration decisions.

Finally, public documents issued by governments of states that are not party to the Convention still require legalisation by the competent authority and the Indonesian Embassy in the country concerned.

Based on our first-hand experience of the use of apostilled documents in Indonesia, it appears that Indonesia’s embassies are already refusing to legalise foreign public documents that are to be used in Indonesia. At the same time, however, some authorities in Indonesia are not yet ready to accept apostilled documents for various reasons, such as the need to update their standard working procedures to accommodate the new mechanism.

For instance, in a recent case involving the registration of a foreign arbitration award in Indonesia, the court clerk still asked us to provide legalised documents or, alternatively, a statement from the Indonesian embassy in the country in which the relevant documents were issued to the effect that they could no longer offer legalisation services. Therefore, during this transitional period, we would recommendthat the relevant authority to which a public document is to be presented in Indonesia be consulted first as to whether or not they are currently able to accept an apostilled document. If they are unable to do so, then a certificate or whatever else is required from the embassy should be obtained alongside the apostille.

ABNR Commentary

It is laudable that MOFA has finally moved to provide certainty on the legalisation exemption for foreign public documents to be used in Indonesia. This process has always been a significant hindrance and delaying factor for investors doing business here.

The ability to obtain an apostille certificate from the relevant authority in the jurisdiction in which the documents were issued will certainly reduce the time needed to complete legal transactions and procedures in Indonesia, further boosting the country’s potential to become a preferred destination for foreign investment.

It is to be hoped that authorities at all levels in Indonesia will quickly familiarize themselves with the new apostille mechanism and make the necessary changes to their procedures as promptly as possible so that investors can fully benefit from the country’s ratification of the Convention.

By partnerMs. Elsie Hakim(ehakim@abnrlaw.com) and foreign counselMr. Gustaaf Reerink (greerink@abnrlaw.com).

This ABNRNewsand its contents are intended solely to provide a general overview, for informational purposes, of selected recent developments in Indonesian law. They do not constitute legal advice and should not be relied upon as such. Accordingly, ABNR accepts no liability of any kind in respect of any statement, opinion, view, error, or omission that may be contained in this legal update. In all circumstances, you are strongly advised to consult a licensed Indonesian legal practitioner before taking any action that could adversely affect your rights and obligations under Indonesian law.