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General framework

Domestic law

Which domestic laws and regulations govern the recognition and enforcement of foreign judgments in your jurisdiction?

The following laws and regulations govern the recognition and enforcement of foreign judgments in Brazil:

  • Articles 105(I)(i) and 109(x) of the constitution;
  • Decree-Law 4657/1942, as amended by Articles 15 to 17 of Law 12.376/2010;
  • the Arbitration Act (Law 9.307/1996, as amended by Articles 34 to 40 of Law 13.129/2015);
  • Articles 513 to 538 and 960 to 965 of the Civil Procedure Code (Law 13.105/2015); and
  • Articles 216-A to 216-N of the Rules of Procedure of the Superior Court of Justice.

International conventions

Which international conventions and bilateral treaties relating to the recognition and enforcements of judgments apply in your jurisdiction?

Brazil is party to various instruments, international conventions and bilateral treaties which cover the reciprocal recognition and enforcement of foreign judgments – for example:

  • the Convention on Obtaining Evidence Abroad in Civil or Commercial Matters, signed in The Hague in March 1970 and enacted in Brazil by Decree 9.039/2017;
  • the Agreement on Legal Cooperation in Civil Matters between Brazil and Lebanon, enacted in Brazil by Decree 7.934/2013;
  • the Protocol of Cooperation and Jurisdictional Aid on Civil, Commercial, Labour and Administrative Issues between the Mercado Comun del Sur (ie, the Southern Common Market) and Bolivia and Chile, enacted in Brazil by Decree 6.891/2009;
  • the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention), enacted in Brazil by Decree 4.311/2002;
  • the Cooperation Agreement on Civil Issues between Brazil and France, enacted in Brazil by Decree 3.598/2000;
  • the Inter-American Convention on the Extraterritorial Validity of Foreign Judgments and Arbitration Awards, enacted in Brazil by Decree 2411/1997;
  • the Protocol of Cooperation and Jurisdictional Aid on Civil, Commercial, Labour and Administrative Issues between Mercado Comun del Sur member states, enacted in Brazil by Decree 2.067/1996;
  • the Agreement on Judicial Cooperation on Civil, Commercial, Labour and Administrative Issues between Brazil and Uruguay, enacted in Brazil by Decree 1.850/1996;
  • the Agreement on Judicial Cooperation on Civil, Commercial, Labour and Administrative Issues between Brazil and Argentina, enacted in Brazil by Decree 1.560/1995;
  • the Treaty relating to Judicial Cooperation and the Recognition and Execution of Decisions on Civil Issues between Brazil and Italy, enacted in Brazil by Decree 1.476/1995; and
  • the Convention of Judicial Cooperation on Civil Issues between Brazil and Spain, enacted in Brazil by Decree 166/1991.

When the protection of Brazilian public policy and national sovereignty are preserved, Brazil has no significant reservations on entering into such kinds of agreements or treaties. Further, in order to be considered effective and enforceable in Brazil, all bilateral or multilateral treaties must first be approved by the National Congress and enacted by a presidential decree.

Competent courts

Which courts are competent to hear cases on the recognition and enforcement of foreign judgments?

As of December 2004, only the Superior Court of Justice can hear cases and approve foreign judgments. Following approval, local federal courts can render decisions to enforce foreign judgments.

Distinction between recognition and enforcement

Is there a legal distinction between the recognition and enforcement of a judgment?

Yes – the meaning and implementation of recognition and enforcement differ. The ‘recognition’ of foreign judgments implies the effectiveness of judgments (ie, a final and non-appealable decision rendered by a foreign court). The ‘enforcement’ of foreign judgments implies the concrete realisation of the decision and not just the acknowledgment of rights granted. It allows the applicant to undertake enforcement measures.

Ease of enforcement

In general, how easy is it to secure recognition and enforcement of foreign judgments in your jurisdiction?

If a foreign judgment complies with the requirements under local law and does not offend national sovereignty, human rights or public order, the Superior Court of Justice can secure recognition of the judgment. Challenges to approval requests of foreign judgments are limited and cannot re-examine the merits of the decision.

Reform

Are any reforms to the framework on recognition and enforcement of judgments envisioned or underway?

Not at present. The latest changes to the framework are the new Civil Procedure Code (Law 13.105/2015) and the amendment to the Arbitration Act (Law 13.129/2015).

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.

Opposition

Defences

What defences are available to the losing party to a foreign judgment that is sought to be recognised and enforced in your jurisdiction?

The losing party can argue that the foreign judgment:

  • was rendered by a competent foreign authority;
  • was preceded by a regular summons that was legally checked in absentia;
  • was effective in the country in which it was rendered;
  • violates Brazilian res judicata;
  • had no official and certified translation attached, unless stipulated differently in an international convention; and
  • violates national sovereignty, human rights or public order.

Injunctive relief

What injunctive relief is available to defendants (eg, anti-suit injunctions)?

No injunctive relief is generally available to defendants against the recognition or enforcement of foreign judgments in Brazil.

Recognition and enforcement procedure

Formal procedure

What is the formal procedure for seeking recognition and enforcement of a foreign judgment?

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

  • 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 ruled 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.

Following recognition, the interested party can request the enforcement of the approved foreign decision by the federal court via a formal request filed by a Brazilian attorney.

Timeframe

What is the typical timeframe for the proceedings to grant recognition and enforcement?

The timeframe for the recognition of a foreign judgment depends largely on the matters in dispute and if the defendant contests the decision. Regarding the enforcement of the decision, the timeframe may vary according to the situation and the counterarguments raised by the losing party.

Fees

What fees apply to applications for recognition and enforcement of foreign judgments?

The fee to request the recognition of a foreign judgment is R174.23. Fees for the enforcement of an approved foreign judgment range from R10.64 to R1,915.38. The applicant must also be represented by a Brazilian lawyer and contract the legal fees directly.

Security

Must the applicant for recognition and enforcement provide security for costs?

Applicants do not generally need to provide security for costs.

Appeal

Are decisions on recognition and enforcement subject to appeal?

A so-called ‘declaration embargo appeal’ (Articles 1.022 to 1.026 of the Civil Procedure Code) can be presented to:

  • clarify obscurity or eliminate contradiction in the decision;
  • overturn the omission of a point or question on which the court has decided; or
  • correct a material error.

If one of the above is identified, the decision can be modified by the appeal court. Further, in exceptional cases, the decision can be subject to appeal before the Federal Supreme Court.

If recognition of a foreign decision is granted, the decision becomes final and unappealable and the party can present an enforcement request before a federal court. In addition, in divorce cases, the domestic judgment is subject to appeal before the court of appeal.

Other costs

How does the enforcing court address other costs issues arising in relation to the foreign judgment (eg, calculation of interest, exchange rates)?

Interest rates are governed by the applicable law in accordance with the case that has been judged. In order to be enforced in Brazil, an exequatur procedure must generally be converted into local currency.

Enforcement against third parties

To what extent can the courts enforce a foreign judgment against third parties?

It is impossible to enforce a decision against a third party that was not party to the dispute. Therefore, a foreign judgment that harms third parties cannot be approved except in the case of a legal successor that is proven to be the legal successor to the debt.

Partial recognition and enforcement

Can the courts grant partial recognition and enforcement of foreign judgments?

Article 961(2) of the Civil Procedure Code admits the partial recognition of a foreign judgment. However, when a foreign judgment is fully approved, the enforcement cannot enforce only part of the decision.