Enforcing foreign judgments and arbitral awards in Brazil

Winning a case abroad does not, by itself, allow you to collect from a debtor in Brazil, because foreign judgments and foreign arbitral awards only produce effects in Brazil after they are recognized by the Superior Court of Justice (STJ), in a procedure known as homologação (Federal Constitution, article 105, I, “i”, and Code of Civil Procedure, article 961).

What the court reviews

Recognition is requested through an action filed directly with the STJ (Code of Civil Procedure, article 960), and the court does not retry the case, since its review is limited to formal requirements and to compatibility with Brazilian public policy. Under article 963 of the Code of Civil Procedure, the decision must:

• have been rendered by a competent authority;
• have been preceded by proper service of process, even if the defendant did not appear;
• be effective in the country where it was rendered;
• not conflict with a final Brazilian decision;
• be accompanied by an official translation, unless a treaty waives it;
• not contain a manifest offense to public policy.

Foreign arbitral awards

For arbitral awards, the rules come from the New York Convention, in force in Brazil through Decree 4,311/2002, and from the Brazilian Arbitration Act. The request must include the award and the arbitration agreement, in the original or in duly certified copies, each with an official translation (Law 9,307/1996, article 37), and recognition may be refused only on the grounds listed in articles 38 and 39 of the Act, such as an invalid arbitration agreement, lack of proper notice or of an opportunity to present a defense, an award that goes beyond the arbitration agreement, a dispute that cannot be settled by arbitration under Brazilian law or a violation of public policy.

A practical detail is that service on a party resident in Brazil carried out under the arbitration agreement or under the procedural law of the seat, including service by mail with unequivocal proof of receipt, is not considered an offense to public policy, provided the Brazilian party had sufficient time to present its defense (article 39, sole paragraph).

After recognition

Once recognized, the decision is enforced before the competent federal court in Brazil, under the same rules that apply to the enforcement of Brazilian decisions (Federal Constitution, article 109, X, and Code of Civil Procedure, article 965), which gives the creditor access to the usual enforcement tools, such as the attachment of bank accounts and other assets.

How to prepare

Before filing, it helps to:

• obtain certified copies of the decision and evidence that it is effective where it was rendered;
• keep the records showing how the defendant was served;
• apostille the documents, or have them legalized at a Brazilian consulate if the issuing country is not a party to the Apostille Convention;
• have the documents translated by a Brazilian sworn translator;
• check whether the debtor has assets in Brazil before investing in the process.

The length of the procedure varies, mainly depending on whether the debtor contests the request, so it is worth planning recognition and enforcement together from the start.