Enforcement of judgments in Brazil: overview

A Q&A guide to enforcement of judgments law in Brazil.

The Q&A gives a structured overview of key practical issues concerning enforcement of judgments in this jurisdiction, including definitions and preliminary proceedings; applicable regulations/conventions; pending appeals; enforceable judgments; conditions for recognition and enforcement; proper service; public policy; provisional remedies; interest; actual enforcement; enforcing foreign judgments; enforcement proceedings; formalities; and any reform proposals.

This Q&A is part of the Enforcement of Judgments and Arbitral Awards in Commercial Matters Global Guide.

Contents

Enforcement of judgments: domestic and foreign

Definitions and preliminary proceedings

1. What is the definition of judgment in your jurisdiction for the purpose of enforcement proceedings?

Domestic

A judgment is a decision given by a court or tribunal acknowledging the existence of certain rights and authorising a specific set of acts aiming to satisfy this right. The decision can be final (that is, a decision that closes the lawsuit) or an interim measure or relief.

It encompasses both money judgments (that is, decisions determining payment of a specific sum) and non-money judgments (that is, decisions that recognise a positive or negative covenant or that determine delivery of a specific asset).

Final decisions given by criminal courts sentencing a defendant to indemnify the victim or its successors, which are not subject to appeal, are also subject to enforcement proceedings.

A judgment can also ratify a settlement agreement executed between the parties, even if the settlement covers issues that were not under dispute in the specific lawsuit. Parties can even file a lawsuit merely to have a settlement agreement ratified by the court. By ratifying the settlement agreement, the court gives the agreement the same effect as if it were a judgment, allowing the parties to enforce it under the same rules applicable to enforcement of judgments.

Arbitral awards are also regarded as judgments for the sake of enforcement proceedings.

The apportionment document issued in a probate proceeding is also regarded as a judgment, being subject to enforcement proceeding. This document is only valid and binding between the executor and heirs that were parties to the probate proceeding.

International

Decisions given by foreign courts must be ratified by the Superior Court of Justice before they can be enforced in Brazil.

 
2. Is it required that a judgment is final and has conclusive effect, or are decisions in preliminary/provisional/interim proceedings recognised and enforceable?

Domestic judgments

Final decisions. Final decisions are subject to "definitive enforcement". The debtor is summoned to pay the debt within 15 days. If a debtor fails to comply with such deadline, it will be required to pay an additional penalty of a 10% fine over the debt. In the case of default, the plaintiff must indicate assets for attachment. After attachment, the assets are appraised and sold. The proceeds are used to pay the debt.

With a non-money judgment, the court sets a deadline for the defendant to comply with a specific obligation. If the defendant fails to comply with the order, it will be subject to paying a daily fine set by the court. The court can also order ancillary measures (such as search and seizure) to secure enforcement of the judgment.

Preliminary/provisional proceedings. Where the defeated party files an appeal, the appealed decision can be enforced through a "provisional enforcement" proceeding. The debtor is summoned to deposit the debt before the court or to indicate the assets that can be sold to pay the debt. After the deposit or attachment of the assets, the assets are kept deposited, until the decision becomes res judicata and the creditor is paid or the assets are sold. The creditor can ask the court to withdraw the deposit or sell the attached assets before the decision becomes res judicata, in which case it provides a bond assuring that the corresponding amount will be fully returned to the debtor if the decision is overruled.

Foreign judgments

Final decisions. After the Superior Court of Justice ratifies the decision, the same rules of domestic judgments apply.

Preliminary/provisional proceedings. The Superior Court of Justice only ratifies foreign decisions that became res judicata. Only after ratification does the foreign judgment becomes enforceable. However, the Superior Court of Justice has precedents granting exequatur to rogatory letters issued by foreign authorities based on preliminary decisions (that is, a seek and seizure injunction).

Applicable regulations/conventions

3. What conventions and regulations is your jurisdiction a contracting party to?

There are four treaties in force that consolidate the most important regulations on the recognition and enforcement of arbitration awards:

  • OAS Inter-American Convention on International Commercial Arbitration 1975 (Panama Convention) was approved on 6 June 1995 (Legislative Order No. 90) and ordered to be executed on 9 May 1996 (Decree No. 1.902).

  • OAS Inter-American Convention on the Extraterritorial Validity of Foreign Judgments and Arbitral Awards 1979 approved on 20 June 1995 (Legislative Order No. 93) and ordered to be executed on 2 December 1997 (Decree No. 2.411).

  • UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) was approved on 25 April 2002 (Legislative Order No. 52) and ordered to be executed on 23 June 2002 (Decree No. 4.311).

  • The Mercosur Accord on International Commercial Arbitration-Buenos Aires Convention was signed on 23 July 1998, approved on 29 December 2000 (Legislative Order No. 265) and ordered to be executed on 4 June 2003 (Decree No. 4.719).

 
4. Will enforcement be automatically refused if service of the proceedings did not conform to any applicable requirements of international treaties/regulations?

The Superior Court of Justice does not ratify foreign decisions where the defendant was not properly served. Default judgment is accepted where it is evidenced that the defendant was properly served but failed to present a defence according to the due process of law.

Pending appeals

5. What is the effect of pending appeal proceedings where the decision is granted?

Domestic judgments

The appealed decision can be enforced through a "provisional enforcement" proceeding. The debtor is summoned to deposit the debt before the court or to indicate the assets that can be sold to pay the debt. After the deposit or attachment of the assets, the assets are kept deposited, until the decision becomes res judicata and the creditor is paid or the assets are sold. The creditor can ask the court to withdraw the deposit or sell the attached assets before the decision becomes res judicata, in which case it provides a bond assuring that the corresponding amount is fully returned to the debtor where the decision is overruled.

Foreign judgments

The Superior Court of Justice only ratifies foreign decisions that became res judicata. Only after ratification does the foreign judgment become enforceable. However, the Superior Court of Justice has precedents granting exequatur to rogatory letters issued by foreign authorities based on preliminary decisions (that is, a seek and seizure injunction).

Enforceable judgments

6. What types of judgments in commercial matters are enforceable?

Domestic judgments

Money judgments/awards. These are enforceable.

Judgments ordering or prohibiting the doing of acts/injunctions. These are enforceable.

Declaratory judgments. These are enforceable.

Default judgments. These are enforceable.

Judgments made without notice (ex parte)/awards. Ex parte judgments are only enforceable where the judgment for interim relief was granted before the defendant was served. However, the defendant is served process before enforcement of the judgment takes place.

Foreign decisions granting provisional measures. These are enforceable after ratification by the Superior Court of Justice.

Foreign enforcement orders/(pre-judgment) attachment orders/awards. These are enforceable after ratification by the Superior Court of Justice.

Other judgments. The following decisions are enforceable:

  • Those given by the criminal courts sentencing the defendant to indemnify the victim or its successors.

  • Those ratifying settlement agreements.

  • Those for apportionment documents.

Foreign judgments

Money judgments/awards. These are enforceable after ratification by the Superior Court of Justice.

Judgments ordering or prohibiting the doing of acts/injunctions. These are enforceable after ratification by the Superior Court of Justice.

Declaratory judgments. These are enforceable after ratification by the Superior Court of Justice.

Default judgments. These are enforceable after ratification by the Superior Court of Justice. The Superior Court of Justice only ratifies default judgments where it is evidenced that the defendant was served process and failed to present according to the due process of law.

Judgments made without notice (ex parte)/awards. These are not enforceable. The Superior Court of Justice will not ratify a foreign judgment that was entered where the defendant was not served.

Foreign decisions granting provisional measures. These are enforceable after ratification by the Superior Court of Justice.

Foreign enforcement orders/(pre-judgment) attachment orders/awards. These are enforceable after ratification by the Superior Court of Justice.

Other judgments. Any document issued by a foreign authority that would be subject to a court decision under the law must be ratified by the Superior Court of Justice and entered as a judgment in Brazil.

 
7. Are any class of judgments excluded from recognition and enforcement?

Domestic judgments

Judgements given by incompetent courts are excluded from recognition and enforcement.

Foreign judgments

Judgements relating to real state property located in Brazil or probation of assets sitting in Brazil are excluded from recognition and enforcement.

Conditions for recognition and enforcement

8. What are the conditions to enforce and recognise a judgment?

Domestic judgments

Court/arbitral court had jurisdiction. Judgements must be issued by the courts holding proper jurisdiction. Arbitral awards must involve parties that have the capacity to enter legal agreements and relate to disposable property rights.

Defendant had proper notice of the proceedings. This is a condition to enforcing and recognising a judgment.

No incompatibility with public policy. This is a condition to enforcing and recognising a judgment.

Reciprocity. Not applicable.

No conflicting domestic or foreign judgment exists. There is no lis pendens between domestic and foreign lawsuits. The first decision to become res judicata (whether the domestic judgment or the foreign judgment is ratified by the Superior Court of Justice) becomes enforceable. The second lawsuit and the judgments given under this must be dismissed and are not enforceable.

Judgment/award is final as to its effects. Not applicable. Non-final judgments can be provisionally enforced.

Limitation period. The limitation period to enforce a judgment is the same as that applicable to file the lawsuit in which the court gave the judgment.

Other conditions. Not applicable.

Foreign judgments

Court/arbitral court had jurisdiction. Judgments must be ratified by the Superior Court of Justice. Only judgments given by competent courts are accepted for ratification.

Defendant had proper notice of the proceedings. This is a condition to enforcing and recognising a judgment.

No incompatibility with public policy. This is a condition to enforcing and recognising a judgment.

Reciprocity. Not applicable.

No conflicting domestic or foreign judgment exists. There is no lis pendens between domestic and foreign lawsuits. The first decision to become res judicata (whether the domestic judgment or the foreign judgment ratified by Superior Court of Justice) becomes enforceable. The second lawsuit and the judgments given under it must be dismissed and are not enforceable.

Judgment/award is final as to its effects. This is a condition to enforcing and recognising a judgment.

Limitation period. The limitation period to enforce a judgment is the same as that applicable to file the lawsuit in which the court gave the judgment.

Other conditions. Foreign judgments must meet formal requirements to be considered valid and lawful in the country where they were issued.

 
9. What are the grounds for refusing recognition and enforcement?

Domestic judgments

A defendant can oppose enforcement, claiming that the:

  • Defendant was not served or service of process was null.

  • Judgment is not enforceable (that is, it was issued by an incompetent court).

  • Court attached or appraised assets incorrectly.

  • Defendant is not the actual debtor or the plaintiff is not the actual creditor.

  • Creditor is demanding amounts in excess of the actual debt.

  • There is any cause that prevents creditors' right to collect the debt that arose after the judgment was issued.

Foreign judgments

The Superior Court of Justice does not ratify foreign judgments:

  • Given by incompetent courts.

  • Where the defendant was not properly served or was denied the right to defend itself under due process of law.

  • That are not final or that fail to meet the formal requirements that are considered valid and lawful in the country where they were issued.

 
10. Does the enforcing court review service of the proceedings? Are there any conditions regarding service of the proceedings that must have been satisfied/complied with?

Domestic judgments

The enforcing court must only review whether there is evidence on the case records that the defendant was properly served. Service of process can occur by mail, office clerk or publication of a notice in the Official Gazette.

Foreign judgments

When ratifying the foreign judgment, the Superior Court of Justice reviews the case records to confirm if the defendant was properly served, according to the rules applicable in the country where the judgment was issued. These rules must not violate public policy.

Public policy

11. Does public policy include matters of substantive law?

Public policy relates to the most fundamental rights that govern the law, such as:

  • Dignity of individuals.

  • Freedom.

  • Private property.

  • Due process of law.

 
12. Can the application of a law that is different to that applicable under the choice of law rules of the enforcing court be attacked on the basis of public policy?

Only where a law that is different to the applicable law under the choice of law rules of the enforcing court breaches the most fundamental rights that govern the law can they be attacked on the basis of public policy. Choice of law is largely accepted and it is enforced even to the extent that applicable rules differ to the ones applicable under the law.

 
13. In what circumstances and against which judgments has the principle of public policy generally been applied?

The Superior Court of Justice ratifies the great majority of foreign judgments.

The court denied ratification in these cases based on a violation to public policy where the judgment:

  • Provided sole custody over a child to the mother, giving the mother the right to determine when the father visits, breaching the rule that custody and visit rights must be fixed based on the child's best interest.

  • Sentenced the defendant to pay a certain sum, adjusted by inflation and the fx variation rate. By applying both adjustment criteria, the decision was breaching public order.

  • Ordered a party to withdraw a lawsuit due to the existence of an arbitration clause on the agreement under dispute. This decision breached the constitutional right that assures that everyone is entitled to present complaints to the judiciary branch.

  • Authorised the adoption of an adult without altering the individual's documentation to show the adoptive parents as the natural parents. According to the law, any adoption is full and results in alteration of all documents and papers to reflect the new parenthood.

Provisional remedies

14. Is it possible to apply for provisional measures from the enforcing court pending the enforcement proceedings?

Domestic judgments

It is possible to apply for provisional measures from the enforcing court pending the enforcement proceedings.

Foreign judgments

It is possible to apply for provisional measures from the enforcing court pending the enforcement proceedings.

Interest

15. Is the judgment creditor entitled to interest? If so, on what basis is it calculated?

Domestic judgment

The judgment creditor is entitled to 1% interest per month.

Foreign judgment

The judgment creditor is entitled to 1% interest per month.

Actual enforcement

16. What is the enforcement procedure when a declaration of enforceability is granted?

Domestic judgments

The debtor is summoned to pay the debt within 15 days. If the debtor fails to pay within this deadline, it will be subject to a 10% fine. In the case of default, the creditor can indicate assets for attachment. After attachment, the debtor is summoned to present their opposition to enforcement within 15 days. Generally, opposition has no suspending effects. The court appraises the attached assets and sells them. The proceeds are used to pay the debt.

Foreign judgments

After ratification by the Superior Court of Justice, the judgment is enforced before the competent federal court. Enforcement follows the same proceeding applicable to domestic judgments.

 
17. Can defendants oppose the enforcement procedure, and if so, on what grounds/defences?

Domestic judgments

Defendants can oppose enforcement, claiming that the:

  • Defendant was not served or service of process was null.

  • Judgment is not enforceable (that is, it was issued by an incompetent court).

  • Court attached or appraised assets incorrectly.

  • Defendant is not the actual debtor or the plaintiff is not the actual creditor.

  • Creditor is demanding amounts in excess of the actual debt.

  • There is any cause that prevents the creditor's right to collect the debt that arose after the judgment was issued.

Foreign judgments

The Superior Court of Justice does not ratify foreign judgments:

  • That are given by incompetent courts.

  • Where the defendant was not properly served or was denied the right to defend itself under due process of law.

  • That are not final or that fail to meet the formal requirements to be considered valid and lawful in the country where they were issued.

  • That violates public policy, good morals or sovereignty.

 

Enforcing foreign judgments

Jurisdiction

18. Is the enforcing court entitled to consider the grounds on which the foreign court assumed jurisdiction (and if so, on what jurisdictional grounds can enforcement be refused)?

After the Superior Court of Justice ratifies the judgment, the enforcing court cannot refuse enforcement based on jurisdiction grounds. The Superior Court of Justice can only refuse enforcement based on jurisdiction grounds where the foreign judgment relates to real state property located in Brazil or probation of assets sitting in Brazil.

 
19. If the foreign court assumed jurisdiction on the basis of an exorbitant ground of jurisdiction, can the enforcing court review the judgment on that ground?

Exorbitant ground of jurisdiction

The enforcing court must not review the judgment.

Voluntary acknowledgement

The enforcing court must not review the judgment.

Enforcement proceedings

20. Is the enforcement of a foreign judgment subject to formal proceedings or simplified procedures?

Enforcement of a foreign judgment is subject to formal proceedings through ratification before the Superior Court of Justice.

 
21. Are applicants required to institute a new action on the judgment in the form of main proceedings instead of making an application for enforcement based on the judgment?

Applicants must apply for ratification of the judgment before enforcing it. Although this is a new action, its scope is very limited (that is, the parties cannot discuss the merits of the case but only whether the judgment meets all formal requirements for ratification).

 
22. What is the general outline of enforcement proceedings?

Appointing counsel

Applicants must appoint an attorney to file an application for ratification of the judgment. After the judgment is ratified by the Superior Court of Justice, the creditor must be represented by an attorney throughout the whole enforcement proceeding.

Security for costs

Is it not necessary for the applicant to provide security for the costs of the proceedings in case the application is denied.

Jurisdiction and venue

The Superior Court of Justice must ratify the judgment. After ratification, the federal court sitting at the defendant's residence enforces the judgment.

Adversarial or without notice (ex parte)

Enforcement proceedings are adversarial.

Timing

Ratification usually takes between six to 24 months.

Fees

Court fees amount to R$139.20.

Appeals

For enforcement of foreign awards, the initial decision given by the President of the Superior Court of Justice to grant or deny enforcement can be challenged through a special appeal based on the court's Rules of Procedure (agravo regimental), which will remand the matter to the court's Special Court. The final decision given by the Special Court in theory is not appealable, but can be the subject of a request for clarification (embargos de declaração). If constitutional arguments are made, some argue the final decision given by the Special Court can still be appealed before the Brazilian Federal Supreme Court, which is the highest court in the country for constitutional matters.

 
23. Can the enforcing court review the foreign judgment as to its substance if all formalities were complied with and if the judgment meets all requirements?

The enforcing court cannot review the foreign judgment as to its substance if all formalities were complied with and the judgment meets all requirements.

Formalities

24. What are the documentary requirements for enforcement?

Documentary requirements

Applicants must present a:

  • Copy of the judgment, authenticated by a notary public and legalised at a Brazilian consulate.

  • Sworn translation of the judgment.

  • Certification that the judgment is final (res judicata).

  • Certification that the defendant was served process in the proceeding where the judgment was given.

  • Power of attorney and bye-laws of the company.

Authentication

Applicants must authenticate copies before a notary public and legalise it at a Brazilian consulate.

 
25. Is it required to translate the judgments into the language of the State where enforcement is requested?

Translations

Applicants must present a sworn translation of the judgment.

Other languages

In some cases, documents written in Spanish can be accepted by the court without the need for translation, although it is prudent to provide the proper translations.

Certification

A sworn translation is required.

 
26. What is the format of the application for a declaration of enforceability?

The format of the application for a declaration of enforceability is as a petition.

 
27. What information must be included in the application regarding the judgment, the claim as awarded in the judgment, the facts and legal grounds of the case, and that the judgment is no longer appealable?

Judgment

An application must only provide evidence that the request meets all formal requirements, which are that the:

  • Judgment was given by a competent court.

  • Defendant was properly served and had the right to defend himself under due process of law.

  • Judgment is final and meets the formal requirements to be considered valid and lawful in the country where it was issued.

  • Judgment does not breach public policy, goods morals and sovereignty.

Claim as awarded

It is only necessary to the extent that applicants are required to evidence that the judgment does not breach public policy, good morals and sovereignty.

Facts and legal grounds

It is not necessary to ascertain facts and legal grounds for the original claim.

Appeals

Decisions given by the Superior Court of Justice's President are subject to special appeal based on the court's rules of procedure (agravo regimental) that will send the matter to the court's Special Court. The final decision given by the Special Court in theory cannot be appealed, but can be the subject of a request for clarification (embargos de declaração). If constitutional arguments are made, it can be argued that the final decision given by the Special Court can still be appealed before the Brazilian Federal Supreme Court, which is the highest court in the country for constitutional matters.

 
28. Is it required to convert the value of the judgment into the local currency?

Payments must be in local currency. When enforcing the judgment, the court orders the debtor to convert the value on the date of actual payment.

 

Proposals for reform

29. Are any changes to the law currently under consideration or being proposed?

Brazil enacted a new Civil Procedure Code that will enter into force in March 2016. This new Code does not have any material alterations concerning the enforcement of judgments (domestic or foreign) or ratification of foreign judgments.

 

Online resources

Palácio do Planalto – Presidência da República

W www.planalto.gov.br

Description. Official website maintained by the federal government, which provides updated versions of the laws that are in force.

Superior Tribunal de Justiça

W www.stj.jus.br

Description. Official website maintained by the Superior Court of Justice, which provides access to all decisions given by the court, including decisions on ratification of foreign judgments, as well as Procedural Rules issued by the court.


Contributor profiles

Rodrigo Persone P. Camargo

Pinheiro Neto Advogados

T +55 11 3247 8475
E rcamargo@pn.com.br
W www.pinheironeto.com.br/

Pedro Paulo Barradas Barata

Pinheiro Neto Advogados

T +55 11 3247 8637
E pbarata@pn.com.br
W www.pinheironeto.com.br/

Ricardo Dalmaso Marques

Pinheiro Neto Advogados

T+ 55 11 3247 6251
E rdalmaso@pn.com.br
W www.pinheironeto.com.br/


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