Understanding the Validity of Cross Border Legal Documents in Indonesian Judicial Proceedings

Abstract

The rapid pace of globalization has fostered cross border interactions that extend beyond economic sectors into the legal domain. Disputes involving parties from different jurisdictions and assets located in various countries are no longer uncommon in Indonesian judicial proceedings. This article examines the validity and evidentiary strength of foreign legal documents in Indonesian courts, particularly those that lack apostille certification despite being notarized in their country of origin.

Introduction

The era of accelerating globalization is characterized by cross-border interactions that are not limited to the economic sector but have also penetrated the legal domain. Disputes involving parties from various jurisdictions and assets located in different countries are now commonplace in Indonesian judicial proceedings. Recently, an inheritance dispute case involving an Indonesian citizen with property assets in Australia required the submission of ownership documents from Australia to an Indonesian court. These documents had been legalized by a public notary in Sydney but were not accompanied by an apostille. This case raised fundamental questions regarding the evidentiary strength of such foreign documents before Indonesian judges, given the critical importance of legal certainty in evidence.

Another frequently encountered case involves international sales disputes, where one party submits evidence in the form of contracts or invoices issued abroad. For instance, a trading company in Surabaya sued its business partner in Singapore for breach of contract, presenting a contract signed in Singapore and legalized by local notaries as evidence. Without an apostille, Indonesian judges face a dilemma: whether to accept the authenticity and validity of such documents at face value, or to demand stricter legalization processes in accordance with international standards. This situation highlights gaps in the acceptance of foreign evidence that can influence court decisions and justice for disputing parties.

Many disputes involve movable property such as luxury vehicles or artwork imported from abroad, which subsequently become objects of disputes in Indonesia. Ownership documents from the country of origin, such as Bills of Sale or Certificates of Origin, are often submitted as primary evidence. When these documents are only legalized by notaries in the issuing country without apostille certification, the question arises: how can Indonesian courts guarantee the accuracy and validity of the information contained therein? The potential for document abuse or forgery becomes a serious risk that can mislead judges in their decision-making process.

One case handled by Lex Aeterna Law Firm at the Central Jakarta Commercial Court, Case Number 21/Pdt.Sus-HKI/Merek/2025/PN Niaga Jkt.Pst., involved a lawsuit by a foreign company from India seeking trademark cancellation against an Indonesian MSME entrepreneur, who was defended by Lex Aeterna Law Firm. The author, who also served as one of the legal counsels, questioned the validity of non-apostilled foreign documents during the hearing on June 11, 2025, at the Central Jakarta Commercial Court. What guarantee exists for the accuracy of data presented in such documents if they are not verified by the country of origin? Dr. Hotma P. Sibuea, serving as a legal expert witness in the case, stated that foreign documents cannot be automatically accepted by Indonesian courts, particularly documents that are not apostilled.

Legal Problems Arising in Indonesian Courts Regarding Non-Apostilled Foreign Documents

The primary issue that emerges is whether legal documents originating from foreign countries, such as property ownership documents, that are submitted in Indonesian judicial proceedings and have been legalized by notaries from the respective countries but are not apostilled, possess valid evidentiary strength.

Based on the 1961 Hague Convention on the Abolition of the Requirement of Legalization for Foreign Public Documents (Apostille Convention), an apostille is a form of single certification that validates the authenticity of signatures, the capacity of signatories, and the identity of seals or stamps on foreign public documents. Indonesia has ratified the Apostille Convention through Presidential Regulation Number 2 of 2021 concerning the Ratification of the Convention Abolishing the Requirement of Legalization for Foreign Public Documents. Article 1 paragraph (1) of this Presidential Regulation explicitly states: "Ratifying the Convention Abolishing the Requirement of Legalization for Foreign Public Documents, which was signed in The Hague on October 5, 1961." Consequently, ideally, foreign public documents to be used in Indonesia must be accompanied by an apostille to be legally recognized without requiring further legalization by Indonesian embassies or consulates in foreign countries.

When foreign documents are only legalized by notaries from the country of origin without apostille certification, several crucial questions arise in the context of Indonesian evidence law:

1. Is Foreign Notarial Legalization Without Apostille Sufficient to Guarantee Document Authenticity?

Foreign notarial legalization only confirms that the notary's signature and seal are authentic in their country of origin. However, without an apostille, Indonesian courts lack a standard and internationally verified mechanism to ensure the authenticity of the notary's signature itself or the notary's authority under international law.

2. What is the Legal Status of Such Documents in Indonesia's Hierarchy of Evidence?

According to Article 1866 of the Indonesian Civil Code (KUHPerdata), valid evidence includes: "written evidence, witness testimony, presumptions, admissions, and oaths." Documents submitted, whether authentic deeds or private deeds, fall under the category of "written evidence."

Evidentiary Strength of Authentic Deeds: Referring to Article 1868 of the Civil Code, "An authentic deed is a deed made in the form determined by law by or before a competent public official in the place where the deed is made." Authentic deeds possess perfect evidentiary strength (volledige bewijskracht) and binding force (bindende bewijskracht) as regulated in Article 1870 of the Civil Code: "An authentic deed provides perfect evidence between the parties, their heirs, and those who obtain rights from them regarding what is contained therein." This means the contents of authentic deeds are presumed true unless proven otherwise.

Documents only legalized by foreign notaries without apostilles, if they do not meet the requirements for Indonesian authentic deeds, will be categorized as private deeds. According to Article 1875 of the Civil Code, "A private document acknowledged by the person against whom it is to be used, or considered acknowledged according to law, provides perfect evidentiary strength like an authentic deed, insofar as it cannot be proven otherwise." However, Article 1876 of the Civil Code requires that the party against whom a private deed is submitted must acknowledge or deny their signature. Without an apostille, acknowledgment of the foreign notary's signature and the validity of their legalization becomes a fundamental issue.

3. Must Courts Accept Such Foreign Documents, or May Courts Reject Them?

The principle of judicial freedom in evaluating evidence (contained in the spirit of Article 164 HIR and Article 284 RBG, which constitute civil procedural law referring to evidence in the Civil Code) provides discretion. However, this freedom is not absolute. Judges must exercise extreme caution in accepting foreign documents whose validity is questionable. Without apostille certification, the formal validity of documents becomes defective, potentially triggering problems in proceedings. Judges may demand further verification to ensure document validity or even reject documents if their conviction regarding document authenticity is not satisfied.

Previous Research and Its Relevance

Research on the validity of foreign documents in national courts has been extensively conducted, particularly following the ratification of the Apostille Convention by various countries. A relevant study was conducted by Wida Puspita Dewi in her journal article "Analysis of Apostille's Role in Foreign Document Evidence in Indonesian Civil Court Proceedings Post-Ratification of The Hague Convention 1961" (Jurnal Hukum dan Pembangunan, Vol. 51 No. 3, 2022). This research comprehensively examined how Apostille transformed the landscape of foreign document evidence in Indonesia.

According to Dewi (2022), prior to the ratification of the Apostille Convention, the process of legalizing foreign documents in Indonesia was highly complex and time-consuming, involving multiple stages from the Ministry of Foreign Affairs of the country of origin to the Embassy of the Republic of Indonesia. This process often became an obstacle in resolving cross-border civil disputes. Post-ratification, Apostille was expected to significantly simplify this process, allowing apostilled documents to be directly recognized by Indonesian courts without requiring additional legalization.

Furthermore, Dewi (2022) emphasized that despite the convenience provided by Apostille, the principle of judicial prudence remains essential. Judges have the authority to assess document validity based on judicial conviction and other valid evidence. This means that even if documents have been apostilled, if there are strong doubts regarding their material authenticity (for example, suspected falsification of document contents), judges may still order further examination. However, the absence of apostille certification on foreign public documents submitted after the ratification of the Apostille Convention will inherently weaken their evidentiary strength, as they fail to meet the formalities required by international law ratified by Indonesia. This aligns with the argument that documents without apostille certification will be highly vulnerable to challenges in proceedings.

Analysis of the Impact of Using Foreign Documents Without Apostille in Indonesian Courts

The use of foreign documents without apostille certification in Indonesian judicial proceedings can generate several significant impacts, both positive (in terms of flexibility, albeit risky) and negative:

Positive Impacts (Potential, but Risky)

Procedural Flexibility: In certain cases, particularly when dispute values are not substantial or urgency is high, courts might demonstrate flexibility by accepting documents legalized by foreign notaries without apostille certification, provided they are supported by other strong supporting evidence or acknowledgment from opposing parties. This could accelerate judicial processes and reduce the burden of proof.

Reduced Cost and Time Burden: The apostille process can be time-consuming and costly. Without strict apostille requirements, litigating parties can save resources. However, this comes with validity risks.

Negative Impacts

Vulnerability to Challenges: Documents without apostille certification will be highly vulnerable to challenges from opposing parties regarding their authenticity and validity. Judges will likely assess the evidentiary strength of such documents as very weak or even reject them as valid evidence, as they fail to meet internationally recognized formal standards. This can disadvantage parties submitting such evidence, consistent with Dewi's (2022) research findings that the absence of apostille certification weakens evidentiary strength.

Risk of Document Forgery: The absence of apostille certification creates wide opportunities for document forgery or submission of invalid documents. Without standard verification guaranteed by apostille certification, courts lack effective means to ensure documents are authentic and issued by competent authorities. This can mislead judges in decision-making, resulting in unfair decisions or decisions inconsistent with facts. Judges may fall into substantial doubt regarding evidence credibility.

Legal Uncertainty: Accepting foreign documents without apostille certification creates legal uncertainty. If every court or every judge has different interpretations regarding the acceptance of such documents, decision consistency will be disrupted. This undermines the principle of legal certainty, which is fundamental to the judicial system.

Additional Burden of Proof: Parties submitting documents without apostille certification will likely be burdened with obligations to provide substantial additional evidence to support document authenticity and validity. This could include expert witness testimony from the country of origin, cross-examination of the relevant notary (often impractical), or other evidence strengthening judicial conviction.

Execution Challenges: If a decision is based on documents of questionable validity (due to lack of apostille certification), such decisions may face serious challenges when executed in other jurisdictions, particularly if those countries maintain strict document legalization requirements.

Conclusion

Despite being legalized by foreign notaries, cross-border legal documents that are not apostilled possess very weak evidentiary strength in Indonesian judicial proceedings following the ratification of the Apostille Convention. Judges are not automatically obligated to accept such documents. Conversely, judges have discretion to reject or request adequate additional evidence verification. To guarantee document authenticity and avoid the risk of misleading courts, apostille certification becomes the most effective mechanism and internationally recognized standard. Without it, parties submitting documents must be prepared to face significant challenges in proving their validity and risk unfavorable decisions due to weak evidence.

The implications of this analysis extend beyond procedural considerations to fundamental questions of legal certainty and international judicial cooperation. As Indonesia continues to integrate into the global legal framework, adherence to internationally recognized standards such as apostille certification becomes not merely advisable but essential for maintaining the integrity of cross-border legal proceedings. Courts must balance procedural efficiency with evidentiary reliability, ensuring that the pursuit of justice is not compromised by accepting documents of questionable provenance.

Future research should examine the practical implementation of apostille requirements in Indonesian courts and develop guidelines for judges handling cases involving foreign documents. Additionally, comparative studies with other jurisdictions that have implemented the Apostille Convention could provide valuable insights for enhancing Indonesia's approach to cross-border document authentication.

Keywords: Apostille Convention, foreign documents, Indonesian courts, legal evidence, cross-border litigation, document authentication, legal certainty

Author Information:
James E. Tamba, S.H., M.H., CTA. is a Principal Legal Counsel and Advocate at Lex Aeterna Law Firm, Jakarta, Indonesia. He holds a Bachelor of Law (S.H.) and Master of Law (M.H.) degree, along with certification as a Certified Tax Advocate (CTA). His practice encompasses multiple areas of legal expertise, including criminal law, civil and commercial litigation, international business law, corporate governance, intellectual property rights, tax advocacy, and cross-border dispute resolution.