Challenging and Enforcing Arbitration Awards: Brazil

1. Must an award take any particular form?

Brazil

In accordance with the Brazilian Arbitration Act, Law No. 9.307 dated 23 September 1996 (BAA), an arbitral award must be submitted in written form (article 24, I) and shall present, under its article 26:

• a report indicating parties’ qualification and summarising the dispute;
• the reasoning of the Arbitral Tribunal’s decision, referring to the legal and factual arguments of the parties and indicating if the decision was rendered in equity or not;
• the relief granted (dispositif) on the matters subject to judgment, with an indication as to the term for complying with the award, if applicable; and
• the indication of the date and place where the award was rendered.

2. Are there provisions governing modification, clarification or correction of an award? Are there provisions governing retractation or revision of an award? Under what circumstances may an award be retracted or revised (for fraud or other reasons)? What are the time limits?

Brazil

As per article 30 of the BAA, an arbitral award may be modified to rectify a material or typographical error or to clarify an obscurity, dubious excerpt or contradiction.

If there are no specific provisions agreed upon by parties and/or by the Arbitral Tribunal regarding the applicable time limits: (i) a request for clarification may be submitted up to five days from the notification or receipt of the award; and (ii) a decision on the request for clarification shall be rendered within 10 days by the Arbitral Tribunal.

Apart from the modifications hereabove indicated (which shall always be requested by the parties), the BAA does not provide for any mechanism as to require a retraction or revision of the arbitral award (on the merits of the decision) by the Arbitral Tribunal, irrespectively of the circumstance.

3. May an award be appealed to or set aside by the courts? What are the differences between appeals and applications to set aside awards?

Brazil

The BAA does not provide for an appeal to an arbitral award. If parties did not consensually agree upon such possibility, an appeal is presumed not possible by the law.

The main difference between appeals and applications to set aside awards is that appeals allow the revision of the merit of the award, which are not allowed under applications to set aside awards.

4. Is there a time limit for applying for the setting aside of an arbitral award?

Brazil

Pursuant to article 33, paragraph 1, of the BAA, a party may apply for the setting aside of an arbitral award up to 90 days from the notification of the award or the notification of the decision regarding a request for clarification submitted under article 30 of the BAA, if such request was made.

5. What kind of arbitral decision can be set aside in your jurisdiction? Can courts set aside partial or interim awards?

Brazil

Both partial and final awards can be set aside under articles 32 and 33 of the BAA, which only make reference to awards, being silent in regard of interim measures.

Nonetheless, some Brazilian legal doctrine and court precedents find that interim awards may also be subject to setting aside applications under the same grounds and procedures applicable to awards.

6. Which court has jurisdiction over an application for the setting aside of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

Brazil

The competent court over the setting aside proceedings is the same that would be competent for the judgment of the underlying dispute had the parties not signed an arbitration clause, as per article 33, paragraph 1, of the BAA. Under article 63 of the Brazilian Civil Procedural Code (BCPC), the court may vary depending on whether parties have agreed upon on a specific forum or relied on the standard competence rules set forth in the BCPC.

The BAA makes no differentiation between domestic and international arbitration. Any award rendered in Brazilian territory is deemed a national award subject to the setting aside proceedings established in articles 32 and 33 of the BAA. Awards rendered outside of Brazil are considered foreign awards and are not subject to the setting aside procedures before Brazilian courts. Rather, they are only subject to the recognition and enforcement procedure set forth in articles 34 to 40 of the BAA, being the Superior Court of Justice, the only court competent for that matter.

7. What documentation is required when applying for the setting aside of an arbitral award?

Brazil

Article 33, paragraph 1, of the BAA, refers the procedure of the setting aside of an arbitral award to the BCPC’s default rules for ordinary disputes (the ones applicable to the procedimento comum). There is no specific rule regarding the documents that shall be submitted when filing the setting aside request. However, it is advisable to present (i) a copy of the arbitration agreement; (ii) a copy of the arbitral award; and (iii) any other document considered relevant by the plaintiff considering the grounds they raise for defending the nullity of the award under article 32 of the BAA.

8. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with the application for the setting aside of an arbitral award? If yes, in what form must the translation be?

Brazil

Under article 192 of the BCPC, the Portuguese language is mandatory in all procedural acts before judicial courts and all documents presented in other languages must be accompanied with a certified translation by a sworn translator. 

9. What are the other practical requirements relating to the setting aside of an arbitral award? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

Brazil

The requesting party shall advance the initial costs of the lawsuit. The fees will vary, considering that each state court establishes its own provisions for fees, but it is usually around 1 per cent of the amount in dispute. The submissions shall be presented in Portuguese (article 192 of the BCPC) and there is no limitation on the length of the submissions or of the documents presented by the parties.

10. What are the different steps of the proceedings?

Brazil

Article 188 of the BCPC states that procedural acts do not rely on a specific form. Nonetheless, the submissions shall be submitted in writing. The parties can present all the documentary evidence deemed relevant considering the grounds they raise for defending the nullity of the award under article 32 of the BAA. Since the grounds for the nullity of an arbitral award are based on formal and/or procedural irregularities, it is unlikely that a cross-examination phase could take place.

11. May an arbitral award be recognised or enforced pending the setting- aside proceedings in your jurisdiction? Do setting aside proceedings have suspensive effect? If not, which court has jurisdiction over an application to stay the enforcement of the award pending the setting aside proceedings, and what are the different steps of the proceedings?

Brazil

Arbitral awards rendered in Brazilian territory need no recognition to be effective in Brazil, as they automatically have the same effects as court decisions (article 18 of the BAA). The setting aside proceedings do not have an automatic suspensive effect over the enforceability of the award. Courts may exceptionally grant this effect as an interim measure under circumstances to be analysed in a case-by-case scenario, and that fall under the general requirements set forth in article 300 of the BCPC (verisimilitude of the alleged claim and demonstration of an imminent risk of irreparable harm). An arbitral award may be enforced while being challenged if no suspension effect was granted.

12. What are the grounds on which an arbitral award may be set aside?

Brazil

The grounds on which an arbitral award may be set aside are established in article 32 of the BAA, which provides that the arbitral award shall be declared null if:

• the arbitration agreement is null and void;
• it was rendered by a person who could not act as an arbitrator;
• it lacks the mandatory requirements provided for in article 26 of the BAA;
• it was rendered disregarding the limits of the arbitration agreement;
• it was rendered by the arbitrator under the characterisation of one of three typified corruption crimes under Brazilian law (prevaricação, concussão or corrupção passiva);
• it was rendered after the time limit established in the arbitration agreement and the arbitrator did not cure the delay after being notified under article 12, III, of the BAA; and
• it disregarded the principles set forth in article 21, paragraph 2, of the BAA; and (i) due process, (ii) equal treatment of the parties, (iii) impartiality of the arbitrators and (iv) freedom of decision of the arbitrators.

13. What is the effect of the decision on the setting-aside application in your jurisdiction? What challenges are available?

Brazil

The decision on the setting aside application will declare that the arbitral award is totally or partially null and may, depending on the circumstances, determine that the same arbitral tribunal render a new decision over the annulled part. If the nullity of the arbitral award is related to the impartiality of arbitrators, the parties can resubmit their dispute to a new arbitral tribunal. If the arbitration agreement or clause is rendered void, the parties can file a lawsuit before the state courts to discuss the underlying dispute.

A judge’s decision on the setting aside application may be appealed following the rules set forth in the BCPC: initially to the state or federal court and, subsequently and, as the case may be, the state court decision may also be subject to revision by the Superior Court of Justice or the Supreme Federal Court, or both.

14. Will courts take into consideration decisions rendered in relation to the same arbitral award in other jurisdictions or give effect to them (eg, in recognition or enforcement proceedings)?

Brazil

According to article 961 of the BCPC, foreign judicial decisions will only be given effect in Brazil after the recognition proceedings under the Superior Court of Justice, which is the only court that has jurisdiction to recognise foreign decisions, as per article 105, I, "i" of the Brazilian Federal Constitution (BFC). Hence, if a foreign decision in relation to the same arbitral award that is under a setting aside application under Brazilian courts is not yet recognised by the Superior Court of Justice, it will not be given any effect by Brazilian courts. However, that fact does not prevent courts to take the decisions rendered in other jurisdictions into account as any other documentary evidence, if presented by one of the parties.

15. What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?

Brazil

A national arbitral award is considered a judicial enforceable instrument under article 515, VII, of BCPC, and needs no recognition to be enforced in Brazil. The recognition of foreign arbitral awards is governed by the BAA, the BCPC and the Internal Rules of the Superior Court of Justice (‘STJ Internal Rules’, articles 216-A to 216-N). All these provisions roughly follow the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards structure (which, moreover, was incorporated as an internal Brazilian legal act by means of Decree 4.311/2002). Article 34 of the BAA determines that the recognition of foreign arbitral awards shall comply with the treaties that are in force in Brazil, which comprises:

• the New York Convention;
• the Inter-American Convention on International Commercial Arbitration (Decree 1.902 of 1996);
• the 1992 Las Leñas Protocol (Decree 6.891 of 2009) within Mercosur economic block;
• the 1998 Mercosur International Commercial Arbitration Agreement (Decree 4.719 of 2003);
• the Olivos Protocol for the Settlement of Disputes in Mercosur (Decree 4.982 of 2004); and
• the 1994 Buenos Aires Protocol on International Jurisdiction in Contractual Matters (Decree 2.095 of 1996).

16. Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under article I(3) of the Convention?

Brazil

Brazil is a party to the 1958 New York Convention, incorporated in Brazilian law by means of Decree 4.311, published and entered in force on 23 July 2002. No reservations were made upon its ratification.

17. Is there a time limit for applying for the recognition and enforcement of an arbitral award?

Brazil

There is no specific time limit for applying for the recognition of a foreign arbitral award. As to the enforcement of a national or foreign arbitral award, the Precedent (Súmula) No. 150 of the Supreme Federal Court establishes as to the enforcement the same statutory limitation period for the filing of the original arbitration or lawsuit.  

18. Which court has jurisdiction over an application for recognition and enforcement of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

Brazil

A domestic arbitral award does not require recognition to be enforced (article 18 of the BAA). Awards rendered outside of Brazil are considered foreign awards and are subject to the recognition and enforcement procedure set forth in articles 34 to 40 of the BAA, being the Superior Court of Justice the only court competent for the recognition.

Both domestic awards and foreign recognised ones shall be enforced before the competent judge (article 516 of the BCPC), to be defined as per standard jurisdictional rules set forth in article 53 of the BCPC – or in the case of domestic awards, as per a specific forum chosen by the parties, if that was the case.

19. What are the requirements for the court to have jurisdiction over an application for recognition and enforcement and for the application to be admissible? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?

Brazil

A domestic arbitral award does not require recognition to be enforced (article 18 of the BAA). As per foreign awards, there are no specific requirements for the court to have jurisdiction over an application for recognition and enforcement. The Superior Court of Justice has jurisdiction over recognition of foreign awards submissions. State and federal judges have jurisdiction over enforcement submissions regarding recognised foreign awards (the latter, mainly for cases involving federal governmental entities and/or companies).

20. Are the recognition proceedings in your jurisdiction adversarial or ex parte? What are the different steps of the proceedings?

Brazil

The recognition proceedings in Brazilian jurisdiction are adversarial and must be submitted by the interested party (article 37 of BAA). Defendant may present its answer in 15 days after being notified of the proceedings. A reply and a rejoinder may be filed after the answer in a subsequent five-day term. Additional phases to the proceedings may be defined by the reporting Justice (article 216-K, caput, of the STJ Internal Rules). If the request is consistent with the consolidated case law, the reporting Justice may issue an order without submitting the case to other justices (article 216-K, sole paragraph, of the STJ Internal Rules). If it is not, the request for recognition must be submitted to the full Special Court of the Superior Court of Justice, who will decide accordingly to the majority vote of the justices (article 216-K, caput, of the STJ Internal Rules).

21. What documentation is required to obtain recognition?

Brazil

According to article 37 of the BAA, the original or a certified copy of the arbitral award and of the arbitration clause must be provided, while article 216-C of the STJ Internal Rules mention also “other indispensable documents” without specifying them.

22. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition? If yes, in what form must the translation be?

Brazil

If the required documentation to obtain recognition of a foreign award is drafted in a language other than Portuguese, it will be necessary to submit a certified full translation by a sworn translator together with the original documentation (article 192, sole paragraph, of the BCPC).

23. What are the other practical requirements relating to recognition and enforcement? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

Brazil

The requesting party to recognition and enforcement shall advance the initial costs of the lawsuit (article 82 of the BCPC). The fees will vary, considering that each state court establishes its own provisions for taxes, but it is usually around 1 per cent of the amount in dispute. If the claimant party resides outside Brazil and does not own any real property in the country, it shall provide security for the payment of costs and attorney’s fees of the opposing party (article 83 of the BCPC).

The submissions shall be presented in Portuguese and there is no limitation on the length of the submissions, or the documentations filed by the parties.

24. Do courts recognise and enforce partial or interim awards?

Brazil

Article 216-A, paragraph 1 of the STJ Internal Rules establishes that any judicial or non-judicial foreign decision that, under Brazilian law, bears the same effects than a court judgment may be subject to recognition before the Superior Court of Justice. Since under the BAA partial awards have the same effect as a court judgment, they can be recognised and enforced.

25. What are the grounds on which an arbitral award may be refused recognition? Are the grounds applied by the courts different from those provided under article V of the New York Convention?

Brazil

The grounds under which an award may be refused recognition are the same as the ones provided under article V of the New York Convention. Article 38 of the BAA establishes that recognition of a foreign arbitral award may only be denied if one of the parties can prove that:

• the parties to the arbitration agreement could not legally be parties thereto;
• the arbitration agreement was not valid under its applicable law or under the law of the seat of the arbitration;
• the lack of due notice about the arbitral proceedings, or about the appointing of the arbitrators, or any infringement to due process principles regarding the opportunity of a party to present the case and to fully defend themselves;
• the award was rendered disregarding the scope of the arbitration clause;
• the commencing of the proceedings was not in accordance with the arbitration agreement; and
• the arbitral award has not yet become binding upon the parties, has been annulled, or has been suspended by a court in the country where the award was rendered.

Article 39 of the BAA also provides that the recognition or enforcement will also be denied if the Superior Court of Justice finds that (i) the object of the dispute is not susceptible of being decided by arbitration under Brazilian law; and (ii) the decision offends the national public order.

26. What is the effect of a decision recognising an arbitral award in your jurisdiction?

Brazil

An appeal to the Special Court of the Superior Court of Justice may be filed against the reporting Justice decision. The decision that recognises an arbitral award can also be challenged by means an “extraordinary appeal” to the Supreme Federal Court. After the decision recognising an arbitral award has become final and unappealable, it will become an immediately judicial enforceable instrument under the BCPC definition (article 515, VIII).

27. What challenges are available against a decision refusing recognition in your jurisdiction?

Brazil

An appeal to the Special Court of the Superior Court of Justice may be filed against the reporting Justice order; a motion for clarification may be filed against the decisions of the Chief Justice and of the Special Court. The decision of the Special Court that denies recognition of an arbitral award can also be challenged by means of an extraordinary appeal to the Supreme Federal Court.

28. What are the effects of annulment proceedings at the seat of the arbitration on recognition or enforcement proceedings in your jurisdiction?

Brazil

Under article 38, VI, of the BAA, the recognition or enforcement of a foreign arbitral award may be denied if one of the parties demonstrates that the award has not yet become binding, has been annulled or has been suspended by a court in the seat of the arbitration. Under Brazilian statutory law, pending annulment proceedings at the seat of the arbitration could mean that the award has not yet become binding to parties and therefore, would not be recognised or enforced in Brazil.

29. If the courts adjourn the recognition or enforcement proceedings pending annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security?

Brazil

There is no need for a court bond or security in recognition or enforcement proceedings. If the requesting party to the recognition and enforcement proceedings resides outside of Brazil and does not own any real property in the country, it shall only provide security for the payment of costs and attorney's fees of the opposing party (article 83 of BCPC).

30. Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an arbitral award is set aside after the decision recognising the award has been issued, what challenges are available?

Brazil

Under article 38, VI, of the BAA, the recognition or enforcement of a foreign arbitral award may be denied if one of the parties demonstrates that the award has not yet become binding, has been annulled or has been suspended by a court in the seat of the arbitration. Therefore, an award that is still not binding (ie, that could be challenged or annulled by the parties) would not be recognised or enforced in Brazil.  

31. What is the procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction? If the extrajudicial and judicial documents are drafted in a language other than the official language of your jurisdiction, is it necessary to serve these documents with a translation?

Brazil

Under article 247 of the BCPC, the procedure for service of judicial documents to a defendant in Brazilian jurisdiction shall be made by electronic means or by mail to any district in the country, except when: (i) the defendant is incapable; (ii) the defendant is a person governed by public law; (iii) the defendant resides in a place not served by mail. Article 249 of BCPC also provides that when service by mail is frustrated, it shall be done by means of a bailiff (oficial de justiça). Finally, article 256 of BCPC states that service by edict (edital) shall be made when the defendant or the place where the defendant is found is unknown, uncertain or inaccessible. Translation of documents into Portuguese is mandatory (article 192, sole paragraph, of the BCCP).

There are no rules regarding service of extrajudicial documents outside court proceedings.

32. What is the procedure for service of extrajudicial and judicial documents to a defendant outside your jurisdiction? Is it necessary to serve these documents with a translation in the language of this jurisdiction? Is your jurisdiction a party to the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention)? Is your jurisdiction a party to other treaties on the same subject matter?

Brazil

The procedure for service of extrajudicial and judicial documents to a defendant in Brazilian jurisdiction is established in the Decree No. 9,734, dated 20 March 2019, which ratified the 1965 Hague Service Convention. If the defendant is located in a state that has not ratified the Hague Service Convention, service will be done by means of a letter rogatory, presented in the language of the foreign state, with a Portuguese translation.

33. Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction? Are there any databases or publicly available registers providing information on award debtors’ interests in other companies?

Brazil

Using the debtor’s national register number (CPF or CNPJ), it is possible to identify and locate debtor's real estate property in the local registry offices database and debtor’s interests in other companies in the commercial registry (Junta Comercial).

Other information may be requested to courts before or in the course of enforcement proceedings.

34. Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?

Brazil

The main judicial databases are the SisbaJud (Judicial Branch’s Assets Searching System), which even allows judges to order the freezing of bank accounts); the RenaJud (Judicial Restrictions over Vehicles System) an electronic tool that interconnects Courts and the National Traffic Department, which allows judges to order restrictions over debtor’s vehicles; and InfoJud (Judicial Branch Informational System), a platform that allows judges to have access to parties income tax declarations to the Brazilian Revenue Services.

The plaintiff may request the judge of the enforcement procedure to disclose such information if they fail to locate and provide information regarding debtor’s assets on their own.

35. What kinds of assets can be attached within your jurisdiction?

Brazil

Articles 789 and 790 of the BCPC provide that the totality of the debtor’s assets is subject to the fulfilment of their obligations (and consequently, can be attached in enforcement procedures), except for the restrictions provided by the Law. Article 833 of the BCPC establishes those exceptions, ruling certain types of assets that cannot be attached.

36. Are interim measures against assets available in your jurisdiction?

Brazil

Article 301 of BCCP provides for interim measures to enforce attachment, sequestration, listing of assets, registration of a “protest” to prevent the disposal of immovable property, and any other suitable measure to secure the right under discussion.

37. What is the procedure to apply interim measures against assets in your jurisdiction?

Brazil

As per article 300 of the BCPC, to obtain an interim measure against assets, the party must file a formal request to the judge, presenting evidence of the verisimilitude of the alleged claim (fumus boni iuris) and the risk of suffering serious and irreparable damage (periculum in mora – “danger in delay”).

As per articles 303 to 311 of the BCPC, interim measures may be submitted either prior or in the course of an enforcement procedure. There is no need to obtain previous court authorisation. Under urgent and justifiable circumstances, the proceedings can be ex parte, when the court can grant an interlocutory relief inaudita altera pars (after which the other party will be heard and the relief may be reassessed the court). If that is not the case, the court will service the other party for an answer before any decision is made.

38. What is the procedure for interim measures against immovable property within your jurisdiction?

Brazil

The procedure for interim measures is the standard one provided in article 300 of the BCPC – the party must file a formal request to the judge, presenting evidence of the verisimilitude of the alleged claim (fumus boni iuris) and the risk of suffering serious and irreparable damage (periculum in mora). Regarding immovable property, the court can determine provisional measures such as applying a ‘protest’, registered in the real state registry, on the referred property. By recording the award creditor’s claim, the ‘protest’ prevents the transfer of the immovable property and protects the claimants right.

39. What is the procedure for interim measures against movable property within your jurisdiction?

Brazil

The procedure for interim measures is the standard one provided in article 300 of the BCPC – the party must file a formal request to the judge, presenting evidence of the verisimilitude of the alleged claim (fumus boni iuris) and the risk of suffering serious and irreparable damage (periculum in mora). Regarding movable property, the court may temporarily seize the asset, appointing an administrator to guard the claimants right until the end of the procedure.

40. What is the procedure for interim measures against intangible property within your jurisdiction?

Brazil

The procedure for interim measures is the standard one provided in article 300 of the BCPC – the party must file a formal request to the judge, presenting evidence of the verisimilitude of the alleged claim (fumus boni iuris) and the risk of suffering serious and irreparable damage (periculum in mora).

41. What is the procedure to attach assets in your jurisdiction?

Brazil

The attachment of assets is a subsequent stage of the enforcement proceedings. After such procedure being filed, the judge shall service notice to the debtor, requiring them to provide payment of the debt within 15 days, pursuant to article 523 of the BCCP. If payment does not occur in due time, the judge shall grant an order to attach as many assets as necessary to enforce the payment of the debt.

42. What is the procedure for enforcement measures against immovable property within your jurisdiction?

Brazil

The attachment of assets is a subsequent stage of the enforcement proceedings. After such procedure being filed, the court shall service notice to the debtor, requiring them to provide payment of the debt within 15 days, pursuant to article 523 of the BCPC. If payment does not occur in due time, the judge shall grant an order to attach as many assets as necessary to enforce the payment of the debt.

Article 835 of the BCCP defines an order of priority regarding the attachment of assets. Immovable property can only be seized after cash, bonds, and vehicles.

43. What is the procedure for enforcement measures against movable property within your jurisdiction?

Brazil

The attachment of assets is a subsequent stage of the enforcement proceedings. After such procedure being filed, the court shall serve notice to the debtor, requiring them to provide payment of the debt within 15 days, pursuant to article 523 of the BCPC. If payment does not occur in due time, the judge shall grant an order to attach as many assets as necessary to enforce the payment of the debt.

Article 835 of the BCCP defines an order of priority regarding the attachment of assets. Movable property can only be seized after cash, bonds, vehicles and real state property.

44. What is the procedure for enforcement measures against intangible property within your jurisdiction?

Brazil

The attachment of assets is a subsequent stage of the enforcement proceedings. After such procedure being filed, the court shall serve notice to the debtor, requiring them to provide payment of the debt within 15 days, pursuant to article 523 of the BCPC. If payment does not occur in due time, the judge shall grant an order to attach as many assets as necessary to enforce the payment of the debt.

45. Are there specific rules applicable to the attachment of assets held by banks? Is it possible to attach in your jurisdiction sums deposited in bank accounts opened in a branch or subsidiary of a foreign bank located in your jurisdiction or abroad? Is it possible to attach in your jurisdiction the bank accounts opened in a branch or subsidiary of a domestic bank located abroad?

Brazil

Article 835 of the BCPC defines an order of priority regarding the attachment of assets. Financial assets deposited or held in back accounts shall be seized first, according to the list of the referred article. The attachment of such assets is implemented by the courts electronically, by means of a system called SisbaJud (Judicial Branch’s Assets Searching System).

The attachment of financial assets in foreign jurisdictions requires international legal cooperation, pursuant to article 27 of the BCPC. The court must authorise the attachment and issue a letter rogatory addressed to the foreign jurisdiction where the bank account is located requesting the seizing of the assets.

46. Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?

Brazil

There aren’t any rules in Brazilian jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states.

47. What is the procedure for service of extrajudicial and judicial documents to a foreign state? Is it necessary to serve extrajudicial and judicial documents with a translation in the language of the foreign state?

Brazil

The procedure for service of extrajudicial and judicial documents to a foreign state consists in issuing a court-ordered letter rogatory, which should be submitted in the language of the foreign country, accompanied by an official Portuguese translation, pursuant to article IV, ‘2’, of the New York Convention.

48. May a foreign state invoke sovereign immunity (immunity from jurisdiction) to object to the recognition or enforcement of arbitral awards?

Brazil

The Supreme Federal Court considers that foreign states have immunity from enforcement, unless there is an express waiver. This immunity is relative, depending on the nature of the acts practised by the state: acta jure imperii (acts of authority) or acta jure gestionis (acts of business). Based on such difference, any business transaction, participation in foreign companies or ownership of immovable or movable assets would fall within the category of acta jure gestionis and the foreign state would not be able to invoke sovereign immunity to avoid the recognition of an arbitral award.

49. May award creditors apply interim measures against assets owned by a sovereign state?

Brazil

The Supreme Federal Court considers that foreign states have immunity from enforcement, unless there is an express waiver. Therefore, a creditor can’t apply for interim measures against assets owned by a foreign state.

50. Are assets belonging to a foreign state immune from enforcement in your jurisdiction? Are there exceptions to immunity?

Brazil

The Supreme Federal Court considers that foreign states have immunity from enforcement, unless there is an express waiver. This immunity is relative, depending on the nature of the acts practised by the state: acta jure imperii or acta jure gestionis. Based on such difference, any business transaction, participation in foreign companies or ownership of immovable or movable assets would fall within the category of acta jure gestionis and the foreign state wouldn’t be able to invoke sovereign immunity to avoid the recognition of an arbitral award.

51. Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? What are the requirements of waiver?

Brazil

There is no legal obstacle for a foreign state to waive immunity from enforcement in Brazilian jurisdiction. However, under Brazilian law and principles, any type of waiver must be done expressly and should be interpreted restrictively.

52. Is it possible for a creditor of an award rendered against a foreign state to attach the assets held by an alter ego of the foreign state within your jurisdiction?

Brazil

There are no rules in Brazilian jurisdiction on this matter.