Proper service of process essential in Brazil


John McNaughton*

As many foreign parties ruefully come to learn, pleas for enforcement of foreign judgments before the Federal Supreme Court of Brazil are routinely denied, because the resident Brazilian defendant had not properly received service of process.

Although Brazilian law has long recognized the validity and enforceability of the judgments of foreign courts, before a foreign judgment can be enforced, it must first be ratified by the Federal Supreme Court. One of the conditions for ratification is the proper service of process. Because Brazil is not a party to the Hague Convention of 1965 on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters, it is essential that service of process be accomplished in accordance with Brazilian law.

Pursuant to the Introductory Law to the Civil Code, the Brazilian Civil Procedure Code and the Internal Regulations of the Federal Supreme Court, the sole method for serving process by a foreign court on a defendant domiciled in Brazil is by means of a Carta Rogatória or Letter Rogatory. Thus, for example, a default judgment served by mail or by personal delivery, as is common in the United States and other jurisdictions, would not be valid. The courts have held that the only exception to this rule is where the Brazilian defendant has accepted jurisdiction of a foreign court by appearing voluntarily to defend the claim.

Brazil is a party to the Inter-American Convention on Rogatory Letters, which was signed in Panama on 30 January 1975 and ratified by Brazil on 27 December 1995. The procedure adopted by signatory countries to the Inter-American Convention, as exemplified in the following case of the United States, is for the Letter Rogatory to be sent by the court to the Central Authority (the U.S. Department of Justice) which, in turn, will forward the Letter Rogatory (duly notarized and consularized by the Brazilian Consulate) to the Central Authority in Brazil, the Ministry of Justice. From there, the Letter Rogatory will be delivered to the Federal Supreme Court for exequatur, whereupon the claimant may submit it to the court of competent jurisdiction for service upon the defendant.

Once implemented, the Letter Rogatory is returned to the Federal Supreme Court and then remanded to the court of origin by the reverse procedure. In other instances, diplomatic channels must be used. Although time consuming, any other method of serving process will ultimately render the foreign judgment unenforceable in Brazil.

This newsletter is provided for informational purposes only and does not purport to offer legal advice.

© 2004 McNaughton Advogados Associados
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