I. Service of Documents -- Letters Rogatory

For service of documents on a Brazilian defendant, like a summons to file an answer in a court case abroad, or to answer interrogatories, or to take the testimony of a witness in Brazil, it is necessary that the matter be processed via a letter rogatory, i.e. a request by a court of one country to the court of another country. Brazil is not a party to the The Hague Convention on Letters Rogatory. However, Brazil and the U.S.A. are parties to the Inter-American Convention on Letters Rogatory in which the matter is processed without participation of embassies.

For the specific case of a letter rogatory from the U.S. to Brazil the procedure is as follows:

a. In the U.S. the letter rogatory (meaning all the documents that will be sent to Brazil, like the summons, copy of complaint, etc.) has to be "certified" by the Brazilian Consulate (i.e. the signature of the judge, or other judicial authority, has to be attested by a competent officer of the State where the court is located, and this signature is then attested at the Consulate). Subsequently, the whole letter rogatory has to be translated into Portuguese.

b. The U.S. court (or the petitioner) sends the complete letter rogatory, with its Portuguese translation, to the U.S. Central Authority, Department of Justice, 1100 L Street, NW, Room 11006, Washington, DC 20530. The Central Authority in the U.S. sends the letter rogatory to the Central Authority in Brazil: Ministério da Justiça, Secretaria da Justiça, Esplanada dos Ministérios, Bloco T, 70064-900 - Brasília, DF, Brazil. The Central Authority in Brazil forwards the letter rogatory to the Superior Tribunal of Justice, in Brasilia. This procedure takes usually around 60 days.

c. The Superior Tribunal of Justice will then send a notice to the party in Brazil who will have 5 days to challenge compliance (only on procedural grounds). After some internal (and a bit lengthy) procedures the Chief Justice of the Superior Tribunal of Justice will either grant or deny exequatur. Exequatur shall be denied if the content of the letter rogatory is contrary to the public order or national sovereignty. This procedure may take approximately 90 days. (Note: the Superior Tribunal of Justice is on recess in January and in July, so it could be longer).

d. If exequatur is granted the letter rogatory shall be forwarded to the federal court of the domicile of the Brazilian party for compliance of the request contained in the letter rogatory. It is advisable to have an attorney in Brazil to comply with certain formalities (payment of court fees, assistance in the performance of the letter rogatory, etc.). The questioning of a witness may only be performed by a Brazilian attorney; a U.S. attorney may be present but he may not speak at the hearing (he may of course confer with the Brazilian attorney).

e. Once the required act is completed, all measures carried out in Brazil should be translated into English (costs). Thereafter, the federal court returns the letter rogatory to the Superior Tribunal of Justice, and the letter rogatory shall follow the same route in the inverse order.

Unless established in an international agreement or international convention of which Brazil is a party, a letter rogatory of an executory nature (like attachment of assets) shall not be complied with.

Service of process of a party in Brazil by mail (whether registered or not) [there is no process server in Brazil] is not valid for later enforcement of a foreign court decision.

II. Enforcement of Foreign Court Decisions

Foreign court decisions may be enforced in Brazil, but require approval - called homologation - by the Superior Tribunal of Justice, which will examine compliance with a number of formalities, but will not examine the merits.

These formalities are as follows:

a. The request for homologation is filed by a Brazilian attorney for the petitioner (power of attorney required) directly at the Superior Tribunal of Justice, in Brasilia, and must comply with certain procedural requirements.

b. Homologation shall be denied if the foreign court decision offends the national sovereignty, the public order or the good customs.

c. The foreign court decision must comply with the following formalities:

(I) issued by a court of competent jurisdiction;

(II) the Brazilian party must have been served a summons at the beginning of the case in the foreign country under the procedure of a letter rogatory, or must have voluntarily appeared before the foreign court. Service by mail or by personal delivery as done in the U.S. is not valid in the event of a default judgment;

(III) the court decision must be final and enforceable in accordance with the law of its jurisdiction;

(IV) it must have a summary of the case and short reasoning for the decision. A simple statement of the court holding that the party in Brazil has to pay a certain sum of money is not acceptable. Punitive damages are not enforceable because contrary to public order;

(V) the signature of the judge or of the court clerk must be "certified" at the Brazilian consulate;

(VI) the decision has to be translated into Portuguese, which is best done in Brazil prior to filing at the Superior Tribunal of Justice.

d. The party against whom the enforcement is being sought shall be summoned to file an objection to the request in 15 days. The objection may only deal with formalities, and may not dispute the merits. The petitioner shall thereafter be given 5 days to file a rebuttal to the objection. These deadlines may not be extended, but given the compliance with bureaucracy take a much longer time to be completed.

e. If the party against whom the enforcement of the foreign court decision is being sought does not object to the homologation per se, the homologation shall be decided by the Chief Justice of the Superior Tribunal of Justice. If there is an objection (there always is) the homologation shall be decided by the full court; if homologation is granted the local party shall have to pay legal fees of the petitioner.

A homologation procedure for the enforcement of a foreign court decision may take 9 to 12 months due to the many procedural requirements (the Superior Tribunal of Justice is on recess in January and July).

Once the homologation is granted the whole case is forwarded to the federal court of the domicile of the defendant, and will there follow the Brazilian procedure of enforcement of a court decision, usually beginning with the attachment of assets of the defendant.

For the enforcement of a foreign court decision it is necessary to have an attorney in Brasilia to supervise the translation into Portuguese, to file the case, pay filing fees, to file the rebuttal to the objection of the Brazilian party, to maybe present oral argument to the court, and after homologation an attorney is required at the city where the party is domiciled to take several measures at the execution proceeding in federal court (attachment of assets, service of summons, collection of the amount due, arrangements to send the money abroad complying with Central Bank regulations).