This Country Answer reflects the state of the law as of 18 July 2008. Please refer to the explanations in the chapter entitled Disclaimer and Preliminary Note.

A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

Federative Republic of Brazil.

2. Date of entry into force of the New York Convention

5 September 2002.

(Source: Decree No. 4.311 of 23 July 2002, published and in force on 24 July 2002.)

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity

No.

(b) commercial relationships

No.

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

No. Pursuant to Brazil's Arbitration Law, foreign awards are those made outside Brazilian territory. Awards made in Brazil are considered domestic, regardless of any other factors such as the parties' nationality or residence.

(Source: Arbitration Law, Art. 34.)

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

(i) The New York Convention of 1958, enacted by Decree No. 4.311 of 23 July 2002; (ii) Arts. 32, V and 34 to 40 of the Brazilian Arbitration Law, enacted by Federal Law No. 9.307 of 23 Sept. 1996; (iii) Arts. 5, LX, 105, I, (i) and 109, X, of the Brazilian Constitution of 1988, as amended by Constitutional Amendment No. 45 of 8 Dec. 2004; (iv) Art. 20, para. 3; Arts. 155, 461, 461-A, 475-I, 475-J, 475-L, 475-M; Art. 475-N, VI and sole para.; Arts. 475-P, III, 483, 484 and 535, all from the Brazilian Code of Civil Procedure ('BCCP'), enacted by Federal Law No. 5,869 of 11 Jan. 1973, as amended; (v) Arts. 205 and 206 of Brazilian Civil Code, enacted by Federal Law No. 10.406 of 10 Jan. 2002; (vi) Resolution No. 9 of 4 May 2005 of the Brazilian Superior Court of Justice (Superior Tribunal de Justiça, 'STJ'); (vii) Arts. 258, 259 and 263 to 265 of STJ's by-laws (Regimento Interno, 'RISTJ'); and (viii) STF Ruling (Súmula) No. 150, issued by the Brazilian Supreme Court (Supremo Tribunal Federal, 'STF').

C. Limitation periods (time limits)

6.

(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

There is no specific limitation period for commencement of proceedings for recognition of foreign awards under Brazilian law. However, it would be prudent to consider that a general Brazilian limitation period may be invoked against recognition. There is a limitation period applicable to the enforcement of awards, once recognized by the competent authority in Brazil.

(Source: BCCP, Art. 484.)

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

The Brazilian Civil Code ('BCC') establishes a general limitation period of 10 years applicable in the absence of other specific provisions. A conservative approach would therefore require that the filing of an application for recognition of a foreign arbitral award be made within 10 years of the date of the award. It is reasonable to say that the limitation period for the filing of enforcement proceedings commences on the date of recognition of the foreign award by the STJ. There are precedents from Brazilian courts, consolidated under STF Ruling No. 150, holding that the term of this limitation period is the same as that applicable for the commencement of proceedings regarding the subject matter of the dispute decided in the award (e.g. insurance claims: 1 year, certain civil and corporate claims: 3 years, recovery of professional legal fees and costs, claims arising out of documentary credits and litigation fees and costs claims: 5 years). STF rulings are not binding on the lower courts but tend to be followed by all courts.

(Sources: STF Ruling No. 150; BCC, Arts. 205 and 206.)

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

Arts. 34 to 40 of the Arbitration Law set out the general rules for recognition and enforcement of foreign awards in Brazil. When an award is enforceable under the New York Convention, these provisions are superseded by the convention and apply subsidiarily with respect to issues not dealt with by the convention.

(Source: Arbitration Law, Art. 34.)

Brazilian law lays down separate proceedings for recognition and enforcement of a foreign award. An application for recognition (homologação) is made to the STJ. Once recognized, the foreign award may be enforced (executado) by a first-instance judge of the federal civil courts, using the same procedure as applicable to domestic awards.

(Sources: Arbitration Law, Art. 36; BCCP, Arts. 483 and 484.)

Some of the statutory and other provisions (e.g. Arbitration Law, Art. 35) still make reference to the STF, which had jurisdiction over the recognition of foreign awards prior to the enactment of Constitutional Amendment No. 45, of 8 December 2004. Such references should now be understood as being to the STJ.

The President of the STJ, sitting alone, is the authority with primary jurisdiction over the recognition of foreign awards, unless a respondent opposes recognition. In the latter case, the Special Chamber (Corte Especial) of the STJ will then have jurisdiction.

(Sources: Brazilian Constitution of 1988, Art. 105, I(i); STJ Resolution No. 9/2005, Arts. 2 and 9, para. 1.)

The federal civil courts have jurisdiction over the enforcement of foreign awards, once recognized.

(Sources: Brazilian Constitution of 1988, Art. 109, X; STJ Resolution No. 9/2005, Art. 12.)

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

There is no requirement for the President or Special Chamber of the STJ to accept jurisdiction over recognition of a foreign award other than on grounds of a legitimate interest in the result of the recognition.

(Source: STJ Resolution No. 9/2005, Art. 3.)

There is no requirement for federal civil courts to accept jurisdiction over enforcement of a foreign award once recognized, other than on grounds of a legitimate interest in the result of the enforcement.

(Source: BCCP, Art. 475-N, VI.)

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

The first decision granting recognition is to be obtained through inter partes proceedings.

Once an application for recognition has been received, a respondent has 15 days to consent to recognition or file an objection (impugnação) on the limited grounds set out in the New York Convention and Brazilian law, in which case jurisdiction over recognition is transferred to the Special Chamber of the STJ and a Reporting Minister will be appointed.

(Source: STJ Resolution No. 9/2005, Art. 8 and 9, para. 1.)

The first decision on enforcement is also obtained through inter partes proceedings in the federal civil courts, identical to those applicable to domestic awards.

(Source: BCCP, Arts. 475-P, III and 484.)

The respondent may oppose enforcement proceedings on limited grounds, such as lack or nullity of service of process, unenforceability of the award, undue attachment of assets, enforcement beyond the terms of the award, or if respondent demonstrates that the debt has been paid, compensated or otherwise settled after the award was made.

(Source: BCCP, Art. 475-L.)

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

The decisions on recognition by the President or, if a respondent objects to recognition, the Special Chamber of the STJ are subject to limited appeals.

The decisions on objections to enforcement by the federal civil court judges are subject to different kinds of appeals, depending on whether the objection is rejected or upheld.

(b) How many levels of appeal or recourse are available against this decision?

There are two types of appeals against a decision on the recognition of a foreign award:

(i) an internal appeal (agravo regimental) directed at the President of the STJ, within five days of his decision. The President of the STJ may reconsider his decision or submit the issue to the Special Chamber of that court, in which the President's vote will also be taken into account;

(Sources: STJ Resolution No. 9/2005, Arts. 2 and 11; RISTJ, Arts. 258 and 259.)

(ii) an appeal for clarification (embargos de declaração) may also be filed against decisions of the Special Chamber within five days of the Special Chamber's decision, but only with respect to an omission, contradiction or lack of clarity in the decision. This appeal is lodged with the Special Chamber itself.

(Sources: RISTJ, Arts. 263 to 265; STJ Resolution No. 9/2005, Art. 9.)

There are three types of appeals against a decision on the enforcement of a foreign award:

(i) an appeal for clarification directed at the federal civil judge, within five days of his decision, but only with respect to any omission, contradiction or lack of clarity in the decision. This appeal is lodged with the federal civil court itself;

(Source: BCCP, Art. 535.)

(ii) an ordinary appeal (apelação) directed at the competent federal civil appeals court (Tribunal Regional Federal, 'TRF'), within 15 days of the federal civil judge's decision, when it fully upholds the objection terminating the enforcement proceedings;

(Source: BCCP, Art. 475-M, para. 3.)

(iii) an interlocutory appeal (agravo de instrumento) directed at the relevant federal civil appeals court, within 10 days of the federal civil judge decision in any other case, when the enforcement proceedings continue.

(Source: BCCP, Art. 475-M, para. 3.)

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

The interested party may commence enforcement proceedings in the competent Brazilian federal civil court immediately after the publication of the decision granting recognition of the award by the STJ, including execution against assets.

(Source: BCCP, Art. 484; Arbitration Law, Art. 35.)

A respondent's objection to enforcement shall not suspend or stay execution against assets, unless the respondent demonstrates a risk of serious and irreparable harm (or a harm that is difficult to repair).

(Source: BCCP; Art. 475-M.)

The applicant may proceed with the execution of the award against assets, pending a final determination on the objection to enforcement, by providing adequate security for costs and losses to the respondent.

(Source: BCCP, Arts. 475-M, para. 1.)

E. Evidence required

12.

(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?

The following evidence must be attached to the recognition application: (i) original or certified copy of the award; and (ii) original or certified copy of the arbitration agreement.

(Source: New York Convention, Art. IV.1(a) and (b); Arbitration Law, Art. 37; STJ Resolution No. 9/2005, Art. 3.)

The application shall also provide evidence that: (i) the award was made by arbitrators having jurisdiction to decide the subject matter of the award; (ii) service of the arbitration proceedings was duly effected on the parties or, service having been duly made, the parties failed to participate in the arbitral proceedings and were deemed to be in default under applicable law; (iii) the award is final, binding and not subject to any further appeal (transitado em julgado); (iv) the award has been legalized by a Brazilian consulate and translated into Brazilian Portuguese by an official or sworn translator in Brazil. (Note: The procedure of legalization for purposes of Brazilian law consists of the certification of the signature(s) of the arbitrator(s) by a public notary, followed by the certification of the signature of the public notary by the Brazilian consulate. Legalization is exempted under treaties between Brazil and Argentina, France, Italy, Spain and Uruguay at the time this answer was prepared.)

(Sources: New York Convention, Art. IV.2; Arbitration Law, Art. 37, I; STJ Resolution No. 9/2005, Art. 5.)

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

Complete copies of the award and of the arbitration agreement are required. If the arbitration agreement is inserted in a contract, only the portion of the contract containing the arbitration clause needs to be produced.

(Sources: New York Convention, Arts. II.2 and IV.1(a) and (b); Arbitration Law, Art. 37; STJ Resolution No. 9/2005, Art. 3.)

(c) Are originals or duly certified copies required?

Originals or certified copies of the award and of the arbitration agreement are required.

(Sources: New York Convention, Art. IV.1(a) and (b); Arbitration Law, Art. 37; STJ Resolution No. 9/2005, Art. 3.)

(d) How many originals or duly certified copies are required?

One set of original or certified copies of the award and the arbitration agreement is required. In practice, a second set of non-certified copies of the same documents will be required, to be attached to the notice of proceedings to be served on the respondent.

(Sources: New York Convention, Art. IV.1(a) and (b); Arbitration Act, Art. 37; STJ Resolution No. 9/2005, Art. 3.)

(e) Does the authority or court keep the originals that are filed?

Yes.

13.

(a) Is it necessary to provide a translation of the documents supplied?

Yes.

(Sources: New York Convention, Art. IV.2; Arbitration Law, Art. 37; STJ Resolution No. 9/2005, Art. 3.)

(b) If yes, into what language?

Brazilian Portuguese.

(Sources: New York Convention, Art. IV.2; Arbitration Law, Art. 37; STJ Resolution No. 9/2005, Arts. 3 and 5, IV.)

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?

Yes. The translations have to be made by an official or publicly sworn translator in Brazil.

(Sources: New York Convention, Art. IV.2; Arbitration Act, Art. 37; STJ Resolution No. 9/2005, Arts. 3 and 5, IV.)

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

It is necessary to provide a full translation of the award and the arbitration clause. There is no need to provide a translation of the entire contract containing the arbitration clause.

(Sources: New York Convention, Arts. II and IV.2; Arbitration Law, Art. 37; STJ Resolution No. 9/2005, Arts. 3 and 5, IV.)

F. Stay of enforcement

14.

(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

Under Brazilian law the recognition of a foreign award may be denied on grounds that the award is not yet enforceable against the parties under the law of the seat of the arbitration. Recognition may also be refused if the award was set aside or suspended by the competent authority.

On that basis, under both the New York Convention and Brazilian law, the respondent may apply for a stay of the recognition proceedings pending a decision abroad that may lead to a denial of enforcement.

(Sources: New York Convention, Arts. V.1(e) and VI; Arbitration Act, Art. 38, VI; STJ Resolution No. 9/2005, Art. 4, para. 3.)

A respondent opposing enforcement of the award because it is not enforceable or there is a request to set aside or suspended the award in the country where it was made may request a stay of the execution against assets if it can be can established that enforcement will cause irreparable harm. The stay may be lifted if the applicant offers adequate security as determined by the courts.

(Sources: New York Convention, Art. VI; BCCP, Art. 475-M, para. 1.)

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

There are no other grounds under Brazilian law for staying legal proceedings for recognition and enforcement.

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

No such condition is imposed by Brazilian laws or regulations for granting a stay in proceedings for recognition or enforcement of foreign awards in Brazil.

The STJ may nevertheless require security at the recognition stage (i) from the applicant, before granting an interim measure to protect the enforcement of the award or (ii) from the respondent, before staying the proceedings.

(Sources: New York Convention, Art. VI; STJ Resolution No. 9/2005, Art. 4, para. 3.)

Also, at the enforcement stage, a stay may be lifted at the request of the applicant (as opposed to granted), allowing the execution against assets to proceed, should the applicant provide the court with adequate security.

(Source: BCCP, Art. 475-M, para. 1.)

G. Confidentiality

15.

(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

The award and the arbitration clause form part of public records. The parties may nevertheless request that the confidentiality of certain documents be maintained in order to preserve public interest or the legitimate interests of a party in such confidentiality (e.g. information regarding commercially sensitive data and the legal status of individuals).

(Sources: BCCP, Art. 155; Brazilian Constitution of 1988, Art. 5, LX.)

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

Brazilian law does not provide for a hearing in proceedings for either recognition or enforcement of awards.

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?

Judgments on recognition and enforcement are publicly available in the relevant court dockets and on the websites of the STJ and of the federal civil courts. However, the parties may apply for a confidentiality order in order to protect public interest or the legitimate interests of a party in such confidentiality (e.g. information regarding commercially sensitive data and the legal status of individuals).

(Sources: BCCP, Art. 155; Brazilian Constitution of 1988, Art. 5, LX.)

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

There is no legal provision specifically authorizing the recognition of interim or partial foreign awards in Brazil and there have been no court decisions on these matters at the time this Country Answer was prepared.

The predominant view of Brazilian scholars so far is that interim awards could not be recognized by the STJ, on the ground that they are not final decisions. It may be possible, however, to obtain the recognition of interim decisions, when sought in the form of a rogatory letter (as opposed to an interim award).

(Source: STJ Resolution No. 9/2005, Arts. 5, III and 7.)

With respect to partial awards, the prevailing view among Brazilian scholars is that there would be no legal obstacle to their recognition.

(Source: Arbitration Law, Art. 32, V.)

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

Brazilian law does not distinguish between awards granting monetary relief and other kinds of relief for purposes of recognition. At the enforcement stage, the award will be subject to the enforcement rules set out by Brazilian law for domestic monetary or non-monetary awards, as the case may be.

If the award determines that the respondent shall do or refrain from doing something to the benefit of the applicant or otherwise deliver goods to the applicant, the enforcement judge will make the appropriate order, including the time period for compliance and penalties for failing to comply.

(Source: BCCP, Arts. 461 and 461-A.)

If the award requires the payment of an exact amount in cash, the respondent has 15 days to pay such amount following the service of notice of commencement of the enforcement proceedings. Failure to do so shall entitle the applicant to a 10% penalty. An applicant may seek an order requiring security to be provided for the amount due, which may take the form of an escrow payment to the court or attachment of the respondent's assets.

(Source: BCCP, Art. 461, 461-A and 475-J.)

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

Under Brazilian law, an application for recognition of a foreign award can be made in relation to only a part of the award.

(Source: STJ Resolution No. 9/2005, Art. 4, para. 1.)

Similarly, Brazilian law also allows applications for partial enforcement of an award.

(Source: BCCP, Art. 475-I, para. 2.)

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

The setting aside of an award by the courts of the country where it was made constitutes a ground under Brazilian law for refusing recognition and, consequently, enforcement. There have been no court decisions on this issue at the time this Country Answer was prepared.

(Source: New York Convention, Art. V(1)(e); Arbitration Law, Art. 38, VI.)

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

Under Brazilian law, attorneys' fees in legal proceedings may vary from 10% to 20% of the total amount of the award, and are generally borne by the losing party.

(Source: BCCP, Art. 20, para. 3.)

Currently, pending amendment of the internal rules of the STJ, no fees are required for recognition of foreign awards.

(Source: STJ Resolution No. 9/2005, Art. 1, sole para.)

Country Rapporteur: Luiz Claudio Aboim.

Other contributors: Brazilian members of the Task Force-Arnoldo Wald, Ana Carolina Beneti, Fabiane Verçosa, Gustavo Fernandes de Andrade, João Afonso de Assis, João Bosco Lee, Joaquim Tavares de Paiva Muniz, José Gabriel Assis de Almeida-and the Arbitration Committee of ICC Brazil.