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Conditions for recognition and enforcement

Enforceable judgments

Which types of judgments (eg, monetary judgments, mandatory or prohibitory orders) are enforceable in your jurisdiction and which (if any) are explicitly excluded from recognition and enforcement (eg, default judgments, judgments granting punitive damages)?

All final judgments are generally enforceable under Brazilian Law. However, the foreign judgment must:

  • be rendered by a competent foreign authority;
  • be preceded by regular summons or have been legally checked in absentia;
  • be effective in the country in which it was rendered;
  • comply with Brazilian res judicata;
  • have an official and certified translation attached, unless otherwise stipulated in an international convention; and
  • comply with national sovereignty, human rights and public order.

How are foreign judgments subject to appeal treated?

For foreign enforcement proceedings, a judgment is the final and non-appealable decision rendered by a foreign court. Foreign interlocutory decisions can be enforced in Brazil if the Superior Court of Justice granted the exequatur (Section 1, Articles 515(ix) and 960 of the Civil Procedure Code).

Formal requirements

What are the formal and documentary requirements for recognition and enforcement of foreign judgments?

The interested party must submit a formal request filed by a Brazilian attorney for recognition of a foreign judgment to the Superior Court of Justice. The request must be accompanied by the following documents that demonstrate the ratification requirements:

  • the original or notarised copy of the judgment to be recognised;
  • other documents deemed necessary for the recognition of the foreign judgment (the applicant must provide evidence that the final decision was made by a competent authority and that the parties were regularly summoned); and
  • a certified translation into Portuguese, which in some cases (more often in family matters) must be authenticated by the competent Brazilian consular authority.

Substantive requirements

What substantive requirements (if any) apply to the recognition and enforcement of foreign judgments? Are enforcing courts in your jurisdiction permitted to review the foreign judgment on the merits?

Brazilian law does not permit the review of the merits of a foreign judgment. The Superior Court of Justice can only approve, partially approve or disapprove the judgment; it cannot change the decision regarding the merits of a foreign judgment.

For foreign judgments concerning divorce, formal approval from the Superior Court of Justice is not required, but the enforcing judge can examine the foreign judgment’s validity.

Limitation period

What is the limitation period for enforcement of a foreign judgment?

The enforcement of a foreign judgment is generally subject to the same limitation period that governs the main obligation. The Civil Code (Law 10.406/2002) provides different limitation periods for enforcement, which vary according to the nature of a debt. The Civil Code’s longest limitation period is 10 years and the shortest is one year.

There is no provision regarding limitation periods on foreign judgments. However, the limitation period should be considered from the moment that the judgment becomes final (res judicata) and should refer to the foreign jurisdiction’s statute of limitations, which must be proved when the request for recognition of the foreign judgment is made.

Grounds for refusal

On what grounds can recognition and enforcement be refused?

All final judgments are generally recognised and enforceable under Brazilian law.

However, the foreign judgment must:

  • be rendered by a competent foreign authority;
  • be preceded by regular summons or have been legally checked in absentia;
  • be effective in the country in which it was rendered;
  • comply with Brazilian res judicata;
  • have an official and certified translation attached, unless stipulated differently in an international convention; and
  • comply with national sovereignty, human rights or public order.

Challenges to approval requests of foreign judgments are limited and cannot re-discuss the merits of a decision.

Service of process

To what extent does the enforcing court review the service of process in the original foreign proceedings?

The Superior Court of Justice reviews the service of process only when it was invalid or absent.

Public policy

What public policy issues are considered in the court’s decision to grant recognition and enforcement? Is there any notable case law in this regard?

A foreign decision cannot contravene Brazilian res judicata (ie, a previous and final decision on the matter that has been issued by a Brazilian judicial court or arbitral tribunal), national sovereignty, human rights or public order.

There are a number of recent case law examples in which the Superior Court of Justice has denied the recognition of foreign judgments.

For example, a recent case denied the recognition of a foreign judgment based on the assessment of merit. The court held as follows:

1. The procedure for the homologation of a foreign judgment does not authorise a review of the merits of the decision except where it offends national sovereignty or public order. Given the indeterminate nature of such concepts they should be interpreted in order to prevent only those acts and legal effects absolutely incompatible with the Brazilian legal system.

2. Court impartiality is one of the guarantees that results from due process and does not preclude and is applicable to arbitration by virtue of its jurisdiction. Failure to comply with this prerogative offends national public order, which is why the decision rendered by the foreign courts, in the light of its own legislation, does not exclude examination by the Superior Court of Justice.

3. An arbitration award issued by an arbitrator who has relations with the parties or with the case that impedes or creates suspicion of judges, offends public order (Articles 14 and 32(II) of Law 9.307/1996).

4. Given the contractual nature of arbitration, which highlights the fiducial trust between the parties and the arbitrator, the obligation to disclose any circumstances regarding its impartiality and independence may hinder the approval of an arbitral award.

5. Establishment that the Brazilian law must apply regarding the indemnity, the arbitration award goes beyond the limits of the convention when based on the financial valuation of the business, rather than consider the extent of the damage.

6. Foreign judgments not approved.” (Superior Court of Justice,  SEC 9.412/EX, Rep Justice Felix Fischer, Rep for Judgment Justice João Otávio de Noronha, April 19 2017.)

Another recent case denied the recognition of a foreign judgment based on commitment clauses. In this case, the court held as follows:

1. The unequivocal demonstration of the manifestation of willingness to join the party and be the arbitral judgment offends public order, because affront the principle included in our legal system, which requires express acceptance by the parties submit the settlement of disputes arising in contractual legal transactions private arbitration." [(SEC 967/GB, Reporter Minister José Delgado, in DJ March 20 2006.)]

2. The lack of signature on the clause of election of the arbitration court in the purchase and sale agreement, in its addendum and the referee indicated requested name excludes the probate claim, which offends Article 4(2) of Law 9.307/96, the principle of freedom of choice and the Brazilian public order.

3. Request for approval of the foreign arbitration award denied.” (Superior Court of Justice SEC 978/GB, Rep Justice Hamilton Carvalhido, December 17 2008.)

In another recent case, the Superior Court of Justice denied the recognition of a foreign judgment in the context of divorce proceedings, holding as follows:

1. Failure to comply with the requirements of articles 216-C and 216-D, III, of the Rules of Procedure of the Superior Court of Justice, regarding proof of final and unappealable decision, previous authentication by the competent Brazilian consular authority of the decision, and translation carried out by a sworn professional in Brazil, the foreign judgment cannot be homologated.

2. Request for the homologation of the foreign judgment denied.” (SEC 10.188/EX, Rep Justice Napoleão Nunes Maia Filho, February 21 2017.)

Jurisdiction

What is the extent of the enforcing court’s power to review the personal and subject-matter jurisdiction of the foreign court that issued the judgment?

The enforcing court cannot review a foreign judgment. However, in order to be enforced, a foreign judgment must be approved by the Superior Court of Justice, which can review the personal and subject-matter jurisdiction of the foreign court that issued the judgment based on the principles of national sovereignty, human rights and public order.

Concurrent proceedings and conflicting judgments

How do the courts in your jurisdiction address applications for recognition and enforcement where there are concurrent proceedings (foreign or domestic) or conflicting judgments involving the same parties/dispute?

A foreign court decision cannot influence Brazilian res judicata if a Brazilian judicial or arbitral tribunal has issued a previous and final decision on the matter. However, if the Superior Court of Justice approves a foreign judgment before a final decision in the corresponding domestic case has been made, the foreign decision will be enforced.

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