Accompanying global technological development, Brazilian contract law was successful in regulating electronic signatures for digital contracts through Executive Order 2,200/01. Besides standardizing electronic signatures, this MP also created the Brazilian Public Keys Infrastructure (ICP-Brasil) as a way to certify the validity of the documentation.

However, even in the face of these innovations, there was still a major obstacle in the notary industry, which remained for a long time oblivious to the developments in the electronic world. This obstacle was the apostille process. Since then, the creation of the digital apostille in Brazil has been understood as an agenda of great importance.

The electronic apostille agenda began to take shape in 2021. Since 2016, Brazil has issued the Hague Apostille in the 188 countries that are members of the Hague Apostille Convention. The apostille process, however, was still done exclusively via physical documents and only through authorized notaries. Even documents signed electronically needed to be materialized in order to receive the Hague Apostille seal, which maintained much of the slowness of the process.

To circumvent this challenge, in 2021, the National Council of Justice (CNJ) put on the agenda the possibility of digitizing apostilles, which was approved at the 86th Virtual Session of the CNJ. The electronic apostille now has its procedure provided for in a normative act (Resolution 392/21), which amended Resolution 228/16 (Apostille Convention). The following are important additions made to the convention:

Article 7. The apostille must be in accordance with the model in Annex I of this Resolution, with the following characteristics:

Paragraph 2. The National Judicial Board shall define the security, validity, and effectiveness standards for the placement of the apostille on documents signed electronically and for the issuance of an apostille in electronic media. (included by Resolution 392/21)

Article 8. The apostille shall be issued and registered in an electronic system. (as amended by Resolution 392/21)

Paragraph 1. The apostilles shall be signed with a digital certificate and registered by the issuer. (as amended by Resolution 392/21)

Paragraph 2. The apostille shall be issued after confirming the authenticity of the signature, the function or position held by the signer of the document, and, when applicable, the authenticity of the stamp or seal affixed to it. (as amended by Resolution 392/21)

These changes made it possible to combine the security of the apostille with an unprecedented agility in this process. According to the National Judicial Board, Justice Maria Thereza de Assis Moura, during her speech at the 1st National Forum of the Hague Apostille: "In 2021, we had a 35% increase in apostilles, 1.6 million documents apostilled. In March of 2022, we recorded a monthly record of 206,000 apostilles."

Although impressive, these numbers were not the goal for the document digitization process in Brazil. On June 3, 2022, the 1st Hague National Apostille Forum took place, where another step was taken towards evolution in the issuance of apostilles. As a result of a joint demand from the National Judicial Board and the Brazilian Notary College (CNB), the Electronic Apostille System (Apostil) was created, which finally allowed the electronic and agile apostille of documents through a national platform.

Its operation is similar to the process we observe daily in Brazilian notary offices. The electronically signed document is sent to the Apostil platform. Then, instead of what would originally be authentication of signature, the platform verifies the legal validity of the signatures, done necessarily by means of a digital certificate. Finally, once the validity of the document is confirmed, Apostil generates and issues the final document, the Hague Apostille, accepted as an extrajudicially enforceable instrument.

The digitally issued apostille is similar to the physical one requested from the notary. The difference is only its electronic format and the speed generated by the possibility of validating documents via QR Code or CRC Code.

Apostil will be used both for making and looking up and managing apostilles throughout the country, thus unifying services and information on apostilles in a single, easily accessible location.

We believe there will be no difficulty in accepting digital apostilles. As the platform was created only three months ago, there are still no court decisions that attest to their validity as extrajudicially enforceable instruments. It is already possible to observe, however, the use of the Apostille by notary offices all over Brazil, something that should increase exponentially with time.

The considerations made here are valid for the purposes of Brazilian law. If this document involves the jurisdiction of other countries, all the checks described and the apostille process must be done by professionals qualified by the respective jurisdiction.