Legislation
TreatiesIs your country party to any bilateral or multilateral treaties for the reciprocal recognition and enforcement of foreign judgments? What is the country’s approach to entering into these treaties, and what, if any, amendments or reservations has your country made to such treaties?
There are a multitude of treaties to which Brazil is a signatory that deal with enforcement of foreign decisions, including:
- the Hague Evidence Convention (Convention on Obtaining Evidence Abroad in Civil or Commercial Matters), enacted in 2017;
- the Las Leñas Protocol - Cooperation and Juridical Assistance in Civil, Commercial, Labour and Administrative Matters, signed by the governments of Argentina, Brazil, Paraguay and Uruguay, enacted by Decree No. 2,067/1996;
- the Cooperation and Juridical Assistance in Civil, Commercial, Labour and Administrative Matters, signed between the members of Mercosur, Chile and Bolívia, enacted by Decree No. 6891/2009;
- the New York Convention (United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958), enacted by Decree No. 4,311/2002;
- the Inter-American Convention on the Extraterritorial Validity of Foreign Judgments and Arbitration Awards, enacted by Decree No. 2,411/1997; and
- bilateral treaties signed between Brazil and other states, such as France, Spain, Italy, Lebanon, Argentina and Uruguay.
No relevant reservations regarding the enforcement of foreign decisions have been made by Brazil to these treaties.
Intra-state variationsIs there uniformity in the law on the enforcement of foreign judgments among different jurisdictions within the country?
The application of foreign judgments is uniform in Brazil, disciplined by federal laws.
Sources of lawWhat are the sources of law regarding the enforcement of foreign judgments?
The enforcement of foreign judgments in Brazil is founded in the Federal Constitution and regulated by the following federal acts:
- the Brazilian Code of Civil Procedure;
- the Introductory Law to Brazilian Norms;
- the applicable international treaties (which, once approved by the National Congress and enacted by a presidential decree, are incorporated into the Brazilian legal system); and
- the internal rules of the Superior Court of Justice.
To the extent the enforcing country is a signatory of the Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, will the court require strict compliance with its provisions before recognising a foreign judgment?
Yes, the court will verify compliance with the Hague Convention, as it is a valid treaty that went through the Brazilian internal proceeding for the recognition of international treaties. Non-compliance may be raised as a formal requirement that needs to be met.
In 2016, Brazil ratified the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (the Apostille Convention), facilitating the submission of requests for the recognition and enforcement of foreign judgments.
Bringing a claim for enforcement
Limitation periodsWhat is the limitation period for enforcement of a foreign judgment? When does it commence to run? In what circumstances would the enforcing court consider the statute of limitations of the foreign jurisdiction?
There is no specific rule regarding limitation periods for the enforcement of foreign judgments in Brazil. It is advisable to use as a guideline the limitation period for general lawsuits in Brazil, which is a maximum of 10 years in accordance with the Brazilian Civil Code, commencing on the date the foreign decision to be enforced in Brazil was rendered.
Types of enforceable orderWhich remedies ordered by a foreign court are enforceable in your jurisdiction?
In principle, any remedies ordered by a foreign court are enforceable in Brazil, except for:
- a foreign decision that is contrary to a final (unappealable) decision previously rendered in Brazil;
- a foreign decision that offends Brazilian sovereignty or public order; or
- a foreign decision that is not effective in the country that issued the decision.
Must cases seeking enforcement of foreign judgments be brought in a particular court?
Yes. Until 2004, the Brazilian Supreme Court had internal jurisdiction to rule in such cases. After Constitutional Amendment No. 45/2004, this jurisdiction was passed to the Brazilian Superior Court of Justice, to prosecute and adjudicate the acts regarding the recognition of foreign decisions. After ratification, enforcement is carried out by the lower federal courts.
Separation of recognition and enforcementTo what extent is the process for obtaining judicial recognition of a foreign judgment separate from the process for enforcement?
While recognition is related to the procedure in the Superior Court of Justice that actively stipulates a foreign decision as valid in Brazil, the enforcement process is usually carried out by the lower federal courts.
Therefore, foreign decisions must first go through the rite of ratification in the Superior Court of Justice and, after they are declared valid and enforceable in Brazil, the enforcement procedure is carried out before the federal court in which the decision must be enforced.
It is important to note that foreign judgments on consensual divorces are readily enforceable in Brazil, regardless of ratification.
Opposition
DefencesCan a defendant raise merits-based defences to liability or to the scope of the award entered in the foreign jurisdiction, or is the defendant limited to more narrow grounds for challenging a foreign judgment?
Through the process for recognition of the foreign judgment, the Superior Court of Justice will not analyse the merits of a foreign decision, but only the compliance with formal requirements under Brazilian law, as well as whether the foreign judgment is in accordance with national sovereignty, public policy and the dignity of the human person. Therefore, the defendant cannot raise merits-based foreign defences, as they will not be examined in accordance with the formal requirements of Brazilian law.
Injunctive reliefMay a party obtain injunctive relief to prevent foreign judgment enforcement proceedings in your jurisdiction?
Generally, no such injunctive relief is available in Brazil.
Requirements for recognition
Basic requirements for recognitionWhat are the basic mandatory requirements for recognition of a foreign judgment?
The basic requirements set forth in the Brazilian Code of Civil Procedure are:
- the decision must be rendered by a competent court in the jurisdiction of origin;
- the decision is preceded by suitable service of process, even if there is default;
- the decision is effective in the country where it was rendered;
- the decision does not violate a Brazilian decision that is final and unappealable;
- the decision is accompanied by an official translation, unless its waiver is provided for in a treaty; and
- the decision does not contain an express violation of public order.
The Internal Rules of the Superior Court of Justice (RISTJ) sets forth more detailed rules, determining that:
- the judgment must be final and unappealable, complying with the necessary formalities in the country where the decision was rendered; and
- it must be legalised by the Brazilian consulate and translated into Portuguese by a sworn translator.
In addition, the RISTJ establishes that the ratification will be denied if the decision violates Brazil’s national sovereignty, public order or the dignity of the human person. In the case of a foreign arbitral award, it is also necessary to demonstrate the existence of a valid arbitration agreement and its sworn translation into Portuguese.
Furthermore, foreign decisions regarding a situation in which Brazilian courts have exclusive jurisdiction will not be ratified.
Other factorsMay other non-mandatory factors for recognition of a foreign judgment be considered and, if so, what factors?
The Superior Court of Justice will only observe the basic requirements for recognition expressed in Brazilian laws and regulations and, if there are any, the specific terms and requirements of bilateral or multilateral treaties to which Brazil is a party.
Procedural equivalenceIs there a requirement that the judicial proceedings where the judgment was entered correspond to due process in your jurisdiction and, if so, how is that requirement evaluated?
No procedural equivalence is required. Only formal requirements (including jurisdiction, due service of process and effectiveness of the decision) will be examined.
If those requirements are not met, the Brazilian Superior Court of Justice will deny enforcement of the ruling.
Jurisdiction of the foreign court
Personal jurisdictionWill the enforcing court examine whether the court where the judgment was entered had personal jurisdiction over the defendant and, if so, how is that requirement met?
The Brazilian Code of Civil Procedure determines that, in order to be enforceable, the decision must be rendered by a competent authority, and it therefore encompasses both personal and subject-matter jurisdictions.
In order to comply with this requirement, the claimant must provide proof that the deciding court had jurisdiction over the case, and this can be challenged by the defendant.
Subject-matter jurisdictionWill the enforcing court examine whether the court where the judgment was entered had subject-matter jurisdiction over the controversy and, if so, how is that requirement met?
The Brazilian Code of Civil Procedure determines that, in order to be enforceable, the decision must be rendered by a competent authority, and it therefore encompasses both personal and subject-matter jurisdictions.
In order to comply with this requirement, the claimant must provide proof that the deciding court had jurisdiction over the case, and this can be challenged by the defendant.
ServiceMust the defendant have been technically or formally served with notice of the original action in the foreign jurisdiction, or is actual notice sufficient? How much notice is usually considered sufficient?
The Brazilian Code of Civil Procedure determines that, in order to be enforceable, the decision must be preceded by suitable service of process, even if there is default. If notice has been served (or service has been duly attempted), it will be enforceable in Brazil.
During the ratification procedure, the defendant will be duly served in order to present a defence, unless the foreign decision is an injunction relief, in which case defence must be available afterwards.
Fairness of foreign jurisdictionWill the court consider the relative inconvenience of the foreign jurisdiction to the defendant as a basis for declining to enforce a foreign judgment?
In general, a defendant may argue that he or she was not duly served, or the lawsuit cannot produce its effects in the country it was rendered, and those arguments will be considered by the Superior Court of Justice, as they may be cause for the denial of ratification in Brazil.
Examination of the foreign judgment
Vitiation by fraudWill the court examine the foreign judgment for allegations of fraud upon the defendant or the court?
The merits of the judgment are not analysed, and therefore allegations of fraud will most likely not be taken into account when assessing the case. However, if the fraud is related to formal aspects of the case (such as fraud in the service of process), the Brazilian court may analyse the question.
Public policyWill the court examine the foreign judgment for consistency with the enforcing jurisdiction’s public policy and substantive laws?
The Superior Court of Justice will not examine the merits of a decision, but if the court finds that it offends public order, national sovereignty or the dignity of the human person, ratification will be denied.
Conflicting decisionsWhat will the court do if the foreign judgment sought to be enforced is in conflict with another final and conclusive judgment involving the same parties or parties in privity?
There is no specific rule on how the Brazilian Superior Court of Justice should act if the foreign judgment sought to be enforced conflicts with another final and conclusive decision in a foreign jurisdiction.
If the foreign judgment to be enforced is in conflict with a previous final and conclusive judgment issued in Brazil involving the same parties and analysing the same situation, the Brazilian decision will be considered final and unappealable and should prevail, thus preventing the foreign decision from being enforced.
Furthermore, foreign decisions regarding a situation in which Brazilian courts have exclusive jurisdiction will not be ratified.
Enforcement against third partiesWill a court apply the principles of agency or alter ego to enforce a judgment against a party other than the named judgment debtor?
In general, the recognition of a foreign judgment at the Superior Court of Justice should be processed between the same parties to the action where the judgment sought to be recognised was rendered, and the enforcement will start against the named judgment debtor.
However, during the course of enforcement proceedings, the creditor may request application based on article 50 of the Brazilian Civil Code, which determines the disregard of a legal entity if it is being misused or when there is asset confusion between a company and its shareholders or partners (disregard or piercing of the veil doctrine).
Alternative dispute resolutionWhat will the court do if the parties had an enforceable agreement to use alternative dispute resolution, and the defendant argues that this requirement was not followed by the party seeking to enforce?
If the parties had an enforceable arbitration agreement that was not followed by the party seeking enforcement, the defendant must file a motion to dismiss based on the non-compliance of the claimant with the arbitration agreement. This could be considered by the Superior Court of Justice as non-compliance with the formal requirement of the competent jurisdiction, thus leading to denial of recognition or ratification of the foreign decision.
Favourably treated jurisdictionsAre judgments from some foreign jurisdictions given greater deference than judgments from others? If so, why?
No, the recognition and enforcement of foreign judgments are subject to the same treatment by the Brazilian Superior Court of Justice regardless of the jurisdiction that rendered the judgment, and enforcement is conducted via the federal court in the same manner as a regular lawsuit.
Alteration of awardsWill a court ever recognise only part of a judgment, or alter or limit the damage award?
The second paragraph of article 216a of the RISTJ provides that foreign judgments may be partially recognised, but it is not expected that the Superior Court of Justice will alter or limit the damage award, unless it is somehow considered to violate public order.
Awards and security for appeals
Currency, interest, costsIn recognising a foreign judgment, does the court convert the damage award to local currency and take into account such factors as interest and court costs and exchange controls? If interest claims are allowed, which law governs the rate of interest?
The Superior Court of Justice recognises a foreign judgment in its full terms, including the amount of compensation for damages in the original currency, which may not include court fees and related fees. Subsequent filing of enforcement proceedings in a lower federal court requires the conversion of the award of damages in the value of Brazilian reais.
The Brazilian Civil Code determines that, when an interest rate is not fixed by contract, the rate will be determined by an index of the Brazilian National Treasury.
SecurityIs there a right to appeal from a judgment recognising or enforcing a foreign judgment? If so, what procedures, if any, are available to ensure the judgment will be enforceable against the defendant if and when it is affirmed?
There are a handful of monocratic decisions that admit ratifications of foreign decisions, which, in theory, can be questioned by means of an extraordinary appeal to the Brazilian Supreme Court. If an appeal is filed, it must prove that the Superior Court of Justice erroneously analysed the formal aspects of the foreign decision, which means that the merits of the decision will still not be analysed.
A party can also file a motion for clarification against the decision of the Superior Court of Justice, requesting correction in cases of obscurity, contradiction, omission or a clerical error that needs correction.
Enforcement and pitfalls
Enforcement processOnce a foreign judgment is recognised, what is the process for enforcing it in your jurisdiction?
After the foreign judgment is recognised by the Superior Court of Justice, the judgment has the same force and validity as a national judgment and its enforcement follows the provisions of the Brazilian Code of Civil Procedure relative to the enforcement of judicial executive titles. Once the enforcement request is filed by one of the parties, the other party is served to comply with the decision within a reasonable period. If payment is not made within such a period, a monetary penalty is added and, in the case of an enforcement requesting payment of damages, the enforcing party is entitled to appoint the defendant’s assets to be constrained for payment purposes. After the constriction and evaluation of the assets, the defendant is again served to file, if so desired, an opposition, which does not affect the course of the enforcement proceedings unless the judge determines otherwise. If the defendant again does not pay the debt, the attached property shall be evaluated and sold in a public auction and the values reverted to pay the creditor.
PitfallsWhat are the most common pitfalls in seeking recognition or enforcement of a foreign judgment in your jurisdiction?
The Brazilian judicial system is reliable and gives the same treatment to domestic and foreign litigants. However, the duration of the judicial process is still the most significant pitfall in finding a quick result for any dispute in Brazil, owing to the considerable number of legal proceedings in progress.
Update and trends
Hot topicsAre there any emerging trends or hot topics in foreign judgment enforcement in your jurisdiction?
Hot topics29 Are there any emerging trends or hot topics in foreign judgment enforcement in your jurisdiction?Recently, the Superior Court of Justice decided that when insurance companies subrogate a contract between two parties that contains an arbitration clause, they must abide with the full contract and go through the arbitration procedure.
