Legal Insights

Apostillization Requirements for Foreign Documents to be Used in Indonesia and Notarization

As of January 4, 2021, the Indonesian government ratified the Convention Abolishing the Requirement of Legalization for Foreign Public Documents, dated October 5, 1961 (the “Apostille Convention”), through the enactment of Presidential Regulation No. 2 of 2021 on the Ratification of the Convention Abolishing the Requirement to Legalize Foreign Public Documents (“PR 2/2021”). Consequently, the Apostille Convention has been in effect in Indonesia since June 4, 2022. 

Following the issuance of PR 2/2021, the legalization of foreign public documents intended for use in Indonesia is no longer required. Indonesia now accepts a single Apostille certificate issued by the competent authority in the country where the public document was executed, thereby streamlining the authentication process. 

Key Provisions of the Apostille Convention 

1. The Apostille Convention only applies to public documents.  The Apostille Convention does not apply to documents signed by a person acting in a private capacity.  The term "public documents" is broadly construed to encompass all documents except those executed by individuals in a private capacity. The determining factor is the capacity in which the person or persons sign the document.  

The following are considered public documents under the Apostille Convention: 

1. documents issued by authorities or officials related to courts or tribunals; 

2. administrative documents issued by governmental authorities;

3. notarial deeds and documents; 

4. official certificates affixed to documents signed by individuals in their private capacity, such as certificates attesting to the registration of a document, its existence on a specific date, or notarial authentications of signatures. 

2. Formality.  The only formality under the Apostille Convention is to obtain an Apostille Certificate from a competent authority designated by that state. 

Admissibility of Public Documents Signed Abroad by Indonesian Courts 

Despite the enactment of PR 2/2021, Indonesian courts retain full discretion regarding the admissibility of public documents bearing an Apostille Certificate. In practice, particularly for power of attorney documents signed abroad, many Indonesian courts continue to rely on Supreme Court Decision No. 3038K/Pdt/1981, dated September 18, 1986, which requires that such documents be legalized by the relevant Indonesian embassy. As of yet, the Supreme Court has not issued any further clarification or guidance on the courts' implementation of the Apostille Convention.  Therefore, a foreign party with a lawsuit in Indonesia would still need to follow the old procedures: having a document signed abroad certified by a local public notary and legalized by the relevant Indonesian embassy or consulate before submission to an Indonesian court. 

Notarization Requirements in Indonesia 

In Indonesia, the term "notarization" can refer to the following: 

1. Notarial deeds drafted by a notary: These deeds assert that the notary personally recorded or documented everything they directly observed or heard. 

2. Notarial deeds executed before a notary: These deeds indicate that a person appeared before the notary to make statements, which the notary then transcribed or formulated into the deed. 

3. Legalization of documents by a notary: This involves the signing of private documents by the signing party or parties in the presence of a notary. 

4. Authentication of documents by a notary: This process entails the notary verifying that a copy of a document is a true and accurate reproduction of the original presented to them. 

Mandatory Notarial Documents 

Certain legal documents are required to be executed in the form of a notarial deed. They include the following: 

1. Establishment of a limited liability company (PT) which will contain the articles of association of the company (“AOA”) 
2. Amendments to the AOA. 
3. Establishment of a foundation. 
4. Establishment of other forms of business entities. 
5. Power of attorney to sell (mainly real estate asset). 
6. Property rental agreement. 
7. Property sale agreement. 
8. Statement on inheritance rights. 
9. Will (for enforcement purposes in the case of legal dispute in the court). 
10. Acknowledgment of debt. 
11. Granting of security rights on land. 

A notary is not a government official. However, because notaries are appointed and dismissed by the Minister of Law and Human Rights, notarial deeds executed by a notary carry the same legal weight as public documents. 

Private documents, such as share transfer agreements, are not required to be executed in the form of a notarial deed. Nevertheless, the parties to such agreements may choose to sign the agreement in notarial deed form. In this case, the notary serves as a witness to the signing of the agreement. This practice is common in Indonesia, particularly in high-value or high-profile commercial transactions. Since notarial deeds are regarded as public documents, the notary issuing the deed bears the burden of proof regarding the accuracy of the private document included within the notarial deed.