Enforcement immunity

Domestic law

Describe domestic law governing the scope of enforcement immunity.

There is no specific law governing immunity in enforcement proceedings. Therefore, immunity applies based on the stand of the Federal Supreme Court.

The Federal Supreme Court continues to hold that enforcement immunity (which should not be mixed up with jurisdictional immunity) is absolute, except in the following events: when the foreign state waives the prerogative of sovereignty over its own assets; or when there are assets in the Brazilian territory that, despite belonging to the foreign state, are not allocated, in terms of destination and use, to accomplish the activities of diplomatic delegations or consular representations maintained by said state in Brazil.

Application of civil procedure codes

When enforcing against a state, would debt collection statutes and the enforcement sections of civil procedure codes or similar codes also apply?

No. Enforcement immunity is absolute in Brazil, except in the cases mentioned under question 1.

Consent for further enforcement proceedings

Does a prior submission to the jurisdiction of a court or tribunal constitute consent for any further enforcement proceedings against the property of the state?

No. Enforcement immunity is absolute in Brazil. However, if a foreign state waives its immunity and becomes party to an enforcement proceeding, such waiver may be used against it in other enforcement proceedings on the grounds that immunity does not apply. But we have not identified court precedents to confirm whether the state’s prior participation in proceedings constitutes consent for other enforcement proceedings against its property.

Property or assets subject to enforcement or execution

Describe the property or assets that would typically be subject to enforcement or execution.

Enforcement in Brazil could only encompass assets whose sovereignty were expressly waived by the state, or assets that, despite belonging to the foreign state, are not allocated, in terms of destination and use, to accomplish the activities of diplomatic delegations or consular representations maintained by said state in Brazil.

Assets covered by enforcement immunity

Describe the assets that would normally be covered by enforcement immunity and give examples of any restrictive or broader interpretations adopted by the courts.

Enforcement immunity is absolute in Brazil, except in the cases mentioned under question 1. In addition, diplomatic immunity is also deemed absolute under the Brazilian legal system.

Explain whether the property or bank accounts of a central bank or other monetary authority would be covered by enforcement immunity even when such property is in use or is intended for use for commercial purposes.

This issue is not often discussed in Brazil. However, the property of central banks is deemed to be used in governmental activities of the states in which such banks are encompassed. Therefore, if used to exercise national sovereignty of each state, the property of central banks or other monetary authorities is covered by immunity and cannot be subject to enforcement.

If, however, said property is clearly used for commercial purposes, the prerogative of enforcement immunity will not apply.

Test for enforcement

Explain whether domestic jurisprudence has developed any further test that must be satisfied before enforcement against a state is permitted.

Not applicable. There are no tests to be conducted in Brazil before enforcement against a state is permitted.

Service of arbitration award or judgment

How is a state served with process or otherwise notified before an arbitration award or judgment against it (or its organs and instrumentalities) may be enforced?

No process is served before an arbitration award or judgment because, under the Brazilian legal system, enforcement against a state is not permitted. However, if the state waives its immunity, proceedings will follow a regular course pursuant to Brazilian law. In this context, if a judgment determines enforcement against a state, it will consider knowledge of the decision’s tenor when it is officially published.

History of enforcement proceedings

Is there a history of enforcement proceedings against states in your jurisdiction? What part of these proceedings is based on arbitral awards?

No. Enforcement immunity is absolute in Brazil, except in the cases mentioned under question 1.

Public databases

Are there any public databases through which assets held by states may be identified?

No, there are no public databases to identify the assets held by a state.

Court competency

Would a court in your state be competent to assist with or otherwise intervene to help identify assets held by states in the territory?

If the assets held by a foreign state fall within the events already mentioned, Brazilian judges and courts would have jurisdiction to determine measures requested by the suing party, which could help identify said assets.