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Background

Concept of sovereign immunity

What is the general approach to the concept of sovereign immunity in your state?

In Brazil, the general approach to the concept of sovereign immunity of a state has two principal aspects: jurisdictional immunity and enforcement immunity. In the past, jurisdictional immunity was deemed to be absolute, regardless of the type of act practised by a certain state. However, such understanding has changed, and currently it is effectively presupposed that jurisdictional immunity is restricted.

In this context, if the acts practised are ‘public or government acts of a state’ - namely, acts related to a country’s sovereignty, such as the act of sinking a ship during wartime - sovereign immunity will be granted. On the other hand, if the acts practised are ‘private, merchant-like, commercial acts of the government of a state’ - namely, acts involving issues related to the management of a certain state or organ, such as cases involving commercial relationships - jurisdictional immunity does not apply. This is because the state is not acting in a public or ­sovereign capacity.

As regards enforcement immunity, it is deemed absolute and should be submitted to international law at the enforcement phase, under penalty of diplomatic implications. However, if a state expressly waives the sovereignty over its own assets; or when there are, in the Brazilian territory, assets owned by the foreign state whose purpose or use is unrelated to diplomatic legacies or consular representations maintained thereby in Brazil (the Federal Supreme Court, Ordinary Civil Action, 1 August 2000), enforcement immunity may also be restricted.

As regards Brazil’s own jurisdiction, there is no immunity, but there are prerogatives.

Legal basis

What is the legal basis for the doctrine of sovereign immunity in your state?

The principal legal basis is provided for by treaties acknowledged by the Brazilian legislation, particularly Decree 27,784/1950 adopted in London by the General Assembly of the United Nations on 13 February 1946, which enacted the Convention on the Privileges and Immunities of the United Nations. This Convention presents privileges and immunities to be granted to the UN so that it can perform its duties independently.

Multilateral treaties

Is your state a party to any multilateral treaties on sovereign immunity? Has the state made any reservations or declarations regarding the treaties?

Yes, Brazil is a party to the Convention on the Privileges and Immunities of the United Nations (see question 2). In addition, Brazil is a party to the Convention on the Privileges and Immunities of the Specialized Agencies, adopted by the General Assembly on 21 November 1947.

There is no exception with regard to the aforementioned treaties.

Jurisdictional immunity

Domestic law

Describe domestic law governing the scope of jurisdictional immunity.

Considering there is no specific legislation on jurisdictional immunity, except for the aforementioned Decrees, the scope of jurisdictional immunity is governed by consuetudinary law (ie, based on the understanding set forth under question 1).

State waiver of immunity or consent

How can the state, or its various organs and instrumentalities, waive immunity or consent to the exercise of jurisdiction?

A state can consent to the exercise of the Brazilian jurisdiction through arbitration clauses, contractual clauses or through international treaties. A state may resort to the court to expressly waive its immunity.

In which types of transactions or proceedings do states not enjoy immunity from suit (even without the state’s consent or waiver)? How does the law of your country assess whether a transaction falls into one of these categories?

The courts define any acts practised by the state as acta jure imperii or acta jure gestionis. Based on said difference, any commercial transaction, participation in foreign companies or ownership of real estate assets falling within the category of acta jure gestionis would remove the immunity from the state. In other words, the state could be subject to a cognisance proceeding.

If one of the exceptions to sovereign immunity set out above applies, is there any related principle that could prevent a court having jurisdiction over the state?

No. If the exception under acta jure gestionis applies, there are is no principle that could prevent a court from having jurisdiction over the state.

Proceedings against a state enterprise

To what extent do proceedings against a state enterprise or similar entity affect the immunity enjoyed by the state? Is there precedent for piercing the corporate veil to subject the state itself to those proceedings?

Assuming a state enterprise is owned by the state, the principle mentioned under question 1 should indirectly apply to the purpose and use that is considered unrelated to the diplomatic activities or consular representations. There is no precedent for piercing the corporate veil to hold the state liable and restrict its immunity.

Standing

What is the nexus the plaintiff needs to have standing to bring a claim against a state?

This will depend on the act practised and the substantive law involved therein. Usually it will be necessary to demonstrate the liability of the state, which, according to international law, may be deemed as the omission or commission of culpable or malicious acts causing moral or property damages to third parties.

Therefore, in this context, the action or inaction of the foreign state, existence of damage, causal relation and fault must be demonstrated.

Nexus of forum court

What is the nexus the forum court requires to exercise jurisdiction over a state if the property or conduct that forms the subject of the claim is outside the forum state’s territory?

Articles 21 to 25 of the Brazilian Civil Procedure Code stipulate the limits of Brazilian jurisdiction. Accordingly, for a case to be tried by the Brazilian courts, it must involve an obligation to be fulfilled in Brazil, support payment action whose defendant has ties in Brazil (receipt of income, for instance), or involve parties that tacitly or expressly submit themselves to the Brazilian jurisdiction.

Thus, according to Brazilian legislation, Brazilian authorities may have jurisdiction over a foreign state, provided one of the requirements established by Brazilian legislation is present.

Interim or injunctive relief

When a state is subject to proceedings before a court or arbitral tribunal in your jurisdiction, what interim or injunctive relief is available?

Considering the impossibility of enforcement against states that do not waive their immunity, no interim or injunctive relief can be provided. However, if there is a contractual provision establishing that the state may waive its jurisdictional immunity, including in the terms of enforcement against its assets, it would be subject to Brazilian legislation, which allows the granting of relief if there is a likelihood of success based on the merits of the case (fumus boni juris) or a danger in delaying the case (periculum in mora), which are essential requirements to grant such measure.

Final relief

When a state is subject to proceedings before a court or arbitral tribunal in your jurisdiction, what type of final relief is available?

Although Brazil does not provide for the possibility of enforcing a decision against a foreign state or international organisation, this does not mean that the decision should be merely declaratory. The decision may have a sentencing nature, a situation in which the prevailing party should enforce it in the appropriate jurisdiction.

Service of process

Identify the court or other entity that must be served with process before any proceeding against a state may be issued.

Not applicable. Brazilian legislation, court precedents and legal writing establish that no court or entity must be served with process before any proceeding against a state.

How is process served on a state?

The Brazilian Civil Procedure Code does not regulate specifically how a process is served on a foreign state, but establishes a general rule for the service of process on non-sovereign entities. Therefore, although Brazilian law does not provide for any specific procedure, some courts have not applied the general rule for the sake of good diplomatic relations between countries, determining that process should be served via the embassy or consulate of the state sued.

Judgment in absence of state participation

Under what conditions will a judgment be made against a state that does not participate in proceedings?

Brazil cannot exercise jurisdiction over a party that does not participate in proceedings. However, if a state is served process but does not file its defence, default judgment may be entered against it (ie, if it does not respond, despite service of process or notice of commencement of arbitration). In this event, a judgment would be made against the state, but with due regard for all aspects on state immunity mentioned under question 1.

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.

Immunity of international organisations

Specific provisions

Does the state’s law make specific provision for immunity of international organisations?

Prevailing court precedents in Brazil hold that international organisations are entitled to jurisdictional immunity pursuant to international treaties signed by Brazil. In 2017, the Federal Supreme Court ruled that international organisations cannot be sued in court unless they have expressly waived such prerogative.

There are international treaties expressly recognising that international organisations and organisms enjoy jurisdictional immunity. Some examples are the Convention on the Privileges and Immunities of the United Nations, incorporated in Brazil by Decree No. 27,784/1950, and the Convention on the Privileges and Immunities of the Specialized Agencies, incorporated in Brazil by Decree No. 52,288/1963. Both Conventions extend jurisdictional immunity to the United Nations and its specialised agencies, respectively.

Domestic legal personality

Does the state consider international organisations headquartered or operating in its territory as enjoying domestic legal personality and could such organisations be subjected to proceedings before a court or arbitral tribunal?

International organisations headquartered in Brazil continue to enjoy international legal personality, as long as this provision is contained in international treaties signed by Brazil. Therefore, unless they have waived it, they have jurisdictional immunity.

If there is no such provision, according to Brazilian court precedents, international organisations do not enjoy jurisdictional immunity.

Enforcement immunity

Would international organisations in the state enjoy enforcement immunity? Are there any cases where debtors sought to enforce against a state by attaching or executing assets held by international organisations?

The Federal Supreme Court has recently decided that the United Nations and its respective organisms are entitled to enforcement immunity, including in labour proceedings.

In this context, a majority of legal writings have held that enforcement immunity extends only to assets allocated to accomplishment of the core activities of a public entity and those that are concerned with diplomatic representation. However, there is not a well-established stance on this matter, which gives rise to divergent interpretations.