Member Article

On 4 January 2021, the President of Republic of Indonesia issued Regulation No. 2 of 2021 on the Ratification of the Convention Abolishing the Requirement to Legalize Foreign Public Documents (“PR 2/2021”) (the convention is hereinafter referred to as the “Apostille Convention”).

The Apostille Convention was concluded on 5 October 1961 and is intended to simplify a series of formalities for documents signed overseas for the contracting states.

Before Indonesia ratified the Apostille Convention, every Indonesian document signed overseas to be used in Indonesia had to be legalized by the relevant authorities. Now, as one of the contracting states of the Apostille Convention, Indonesia is exempt from the requirement to legalize documents to which the Apostille Convention applies.

Key Provisions of theApostille Convention

I. The Apostille Convention only Applies to Public Documents

A. The nature of public documents under the Apostille Convention

B. Public Documents according to the Apostille Convention

II. The Formality Required for the Authentication of Public Documents under the Apostille Convention

III. The Apostille Certification Procedure for Foreign Public Documents Signed in Indonesia

IV. The Effect of an Apostille Certificate

VI.The admissibility of public documents signed overseas by Indonesian courts upon Indonesia’s ratification of the Apostille Convention

Detailed explanation for each key provision of the Apostille Convention is available in the article which can be accessed through the provided link.

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Question 1: Can powers of attorney signed overseas to perform corporate actions be considered public documents under the apostilles convention?

Indonesian public notaries and experts have different views on this issue. Specifically, on how we should interpret the concept of “public documents” under the apostille convention.

Referring to our explanation in i.a, documents signed by private entities are consideredprivatedocuments and are not subject to the apostilles convention. However, some business actors interpret this to mean that we can still refer to i.b (iv) according to which official certificates placed on private documentscan be deemedpublic documents.

On that account, it is possible to argue that if the powers of attorney are certified officially (for example, through notarial authentications), the powers of attorney can be considered “public documents” and enjoy the simplification under the apostilles convention. However, this is still subject to the willingness of the public official / person who will use the power of attorney in indonesia to accept it (ie whether they will accept and not challenge a power of attorney which has not been legalized by the indonesian embassy).

Question 2: Are Powers of Attorney certified under the Apostille Convention acceptable to Indonesian courts?

According to Supreme Court ruling No. 3038K/Pdt/1981 dated 18 September 1986 a Power of Attorney signed outside of Indonesia must be legalized by the Indonesian embassy where the Power of Attorney was signed. This ruling has been referred to in many cases to address the acceptability of Powers of Attorney submitted to the court.

Although, arguably, a Power of Attorney certified under the Apostille Convention may be acceptable as long as it falls within the scope of “Public Documents” under the Apostille Convention as explained in Question 1. above, at the moment, we believe that for a Power of Attorney to be accepted by the Indonesian courts, the above Supreme Court ruling must be adhered to until the Supreme Court issues further clarification and guidance on this matter.