This Country Answer reflects the state of the law as of 31 December 2012. Please refer to the explanations in the chapter entitled 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 institutional arbitration rules or law applicable to the dispute, parties' nationality or residence.

(Sources: Arbitration Law, Art. 34; STJ, RESP no. 1.231.554, DJ, 24 May 2011.)

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)?

A new Brazilian Code of Civil Procedure is being discussed by the Brazilian legislative bodies at the time of writing (PLS no. 166/2010, as amended). In its current form, the project is in line with and codifies the existing domestic legal regime, which is mainly composed of:

(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 ('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 the Brazilian Civil Code ('BCC'), enacted by Federal Law No. 10.406 of 10 Jan. 2002;

(vi) Resolution No. 9 of 4 May 2005 ('STJ Resolution No. 9/2005') of the Brazilian Superior Court of Justice (Superior Tribunal de Justiça, 'STJ');

(vii) Arts. 258, 259 and 263 to 265 of the STJ's by-laws (Regimento Interno, 'RISTJ'); and

(viii) STF Ruling (Súmula) No. 150, issued by the Brazilian Supreme Court (Superior Tribunal de Justiça, 'STF').

Particular attention should be given to STJ Resolution No. 9/2005, which sets out the recognition procedure and formalities. Although the resolution is not worded in terms identical to the Arbitration Law (Arts. 34(40) or the New York Convention, it has historically been the STJ's first point of reference in recognition proceedings. In some instances this has produced undesirable effects, which are noted in this Country Answer where relevant.

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 the commencement of recognition proceedings under Brazilian law. However, applicants should consider that general Brazilian limitation periods may be invoked against recognition. Different limitation periods may apply depending on the subject matter of the dispute.

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 answers are slightly different for recognition and enforcement applications. The BCC establishes a general limitation period of 10 years absent specific provisions, unless otherwise provided by law.

Shorter limitation periods are provided in the BCC for 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).

No specific limitation period is provided by law for the recognition of foreign awards, so interested parties should apply for recognition within 10 years from the date the award was formally notified to the parties to the arbitration.

The limitation period for enforcement is the same as that for the underlying claim. The limitation period commences on the day following the publication of the STJ's decision recognizing the award in the Official Gazette.

(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(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 rules are superseded by the Convention and apply subsidiarily to any issues not covered by the Convention.

(Source: Arbitration Law, Art. 34.)

Brazilian law regulates separately the recognition and enforcement of foreign awards. An application for recognition is made to the STJ. Once recognized, the foreign award may be enforced against assets through an application to a first instance federal civil court. The procedure is the same as that 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 be read as if made to the STJ.

The President of the STJ, sitting alone, is the authority with primary jurisdiction over the recognition of foreign awards. If a party resists recognition, the files will be automatically transferred to the Special Chamber (Corte Especial) of the STJ, which will then rule on the application.

(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 by the STJ.

(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.)?

Acceptance of jurisdiction over the recognition of a foreign award by the President or Special Chamber of the STJ is subject to no legal requirement other than a legitimate interest in the result of recognition.

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

However, in practice Art. 3 of STJ Resolution No. 9/2005 has sometimes been understood as requiring the applicant to be a party to the original contract or arbitration proceedings. This prevented recognition of awards at the request of assignees of the rights resulting therefrom, in which case a new application had to be filed.

(Sources: SEC 968-EX, DJ, 25 Sept. 2006; SEC 3,035(EX, DJ, 31 Aug. 2009.)

The STJ has recognized awards where the applicant's sole interest was to invoke the res judicata effects of the decision for which recognition was being sought as a defence in domestic proceedings concerning the same claim decided in the arbitration. It has also recognized awards in cases where the applicant had succeeded the original party to the contract by way of a corporate merger or acquisition. Applicants that are not the original parties to the contract or arbitration proceedings should provide as much detail as possible on the nature of their interest in the recognition of the award.

There is no requirement for federal civil courts to accept jurisdiction over enforcement of a foreign award that has been recognized, other than a legitimate interest in the result of 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 obtained through inter partes proceedings.

Once notified of an application for recognition, the respondent has 15 days to consent to recognition or to file an objection (impugnação). In the event of objection, jurisdiction over the application is transferred to the Special Chamber of the STJ and a Reporting Judge is appointed.

(Source: STJ Resolution No. 9/2005, Arts. 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 the respondent demonstrates that the debt has been paid, offset 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 an objection is rejected or upheld.

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

There are two ordinary types of appeal 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 the STJ, where 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) A limited appeal (embargos de declaração) that can be filed against decisions of the Special Chamber within five days of the Special Chamber's decision. This appeal can be grounded only on lack of clarity, contradiction, omission, or material error 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).

Parties resisting recognition have recently used the constitutional appeal known as recurso extraordinário to appeal to the STF against a decision of the STJ granting recognition. There is debate in Brazil's legal community over whether a constitutional appeal should be admitted at all, given the limited defences available under the New York Convention. The STF has been rejecting such appeals mainly on the grounds that the constitutional arguments invoked should have been discussed in the original proceedings and not raised only at the enforcement stage. Some parties have gone as far as filing a limited appeal (see (ii) above) against a decision of the STF rejecting the constitutional appeal. In at least one case the STF imposed on the party resisting enforcement a penalty of 5% of the amount in dispute for litigation in bad faith. It remains to be seen whether penalties and future decisions will discourage a practice that may cause additional delay in recognition proceedings.

(Sources: RE 595276, DJ, 5 February 2009; RE 595276 AgR, DJ, 16 April 2010; SEC 1, decision of Reporting Judge Eliana Calmon, 3 Dec. 2012, DJ, 4 Feb. 2013.)

There are three types of appeals against a decision on the enforcement of a foreign award, which are the same as for domestic awards:

(i) A limited appeal based on lack of clarity, contradiction, omission, or material error 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 that denies enforcement and terminates 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, which can be filed within 10 days of any decision during the enforcement proceedings.

(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 (including execution against assets) immediately after the publication of the STJ's decision granting recognition of the award.

(Sources: 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 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 decision 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.)?

Recognition applications must include the following evidence: (i) original or certified copy of the award and (ii) original or certified copy of the arbitration agreement.

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

The party applying for recognition must provide evidence that: (i) the award was made by arbitrators having jurisdiction to decide the subject matter of the award; (ii) the party against which enforcement is sought was duly notified and/or defaulted on appearance 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.

Legalization under 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. At the time of writing, legalization was exempted under treaties between Brazil and Argentina, France, Italy, Spain and Uruguay.

(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)?

The applicant must provide complete copies of the award and of the arbitration agreement. If the arbitration agreement is in a contract, only the portion of the contract containing the arbitration clause need be provided.

(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?

The applicant shall provide originals or certified copies of the award and of the arbitration agreement.

(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?

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

(Sources: New York Convention, Art. IV.1(a) and (b); Arbitration Law, 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.

(Source: 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 applicant must provide translations made by an official or publicly sworn translator in Brazil.

(Source: New York Convention, Art. IV.2; Arbitration Law, 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)?

The applicant must 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?

The STJ may deny recognition of a foreign award on the ground that the award is not yet enforceable against the parties under the law at the seat of the arbitration. It may also refuse recognition if the award has been set aside or suspended by the competent authority. Hence, 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 Law, Art. 38, VI; STJ Resolution No. 9/2005, Art. 4, para. 3.)

Also, the party resisting enforcement of the award may request a stay of enforcement against assets if it establishes 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. It is worth noting that the STJ has consistently rejected requests to stay recognition proceedings when based on the fact that proceedings have been brought in the Brazilian courts to annul the arbitration clause upon which the award was made (although an annulment decision that has the force of res judicata would be a bar to recognition altogether).

(Source: STJ, AgRg SEC 853, DJ, 30 June 2011.)

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

There are no laws or regulations subjecting a stay of proceedings for recognition or enforcement of foreign awards in Brazil to any such condition. The STJ may nevertheless require security at the recognition stage from (i) the applicant, before granting an interim measure to protect the enforcement of the award, or (ii) the respondent, before staying the proceedings.

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

At the enforcement stage, a stay may be lifted at the request of the applicant (as opposed to being granted), allowing execution against assets to proceed, if the applicant provides 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 the federal civil courts. However, the parties may apply for a confidentiality order in order to protect public interest or a party's legitimate interest 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?

Brazilian law requires that the award for which recognition is sought be final and binding (res judicata). Accordingly, the traditional view of Brazilian scholars is that interim awards cannot be recognized by the STJ because they are not considered final decisions.

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

However, the draft of the new BCCP contains a provision authorizing the recognition of interim decisions, so Brazilian law may in time change. The prevailing view among Brazilian scholars is that there are no legal obstacles to the recognition of partial awards provided that the issues decided therein have been finally determined (e.g. when the arbitral tribunal issues an award on jurisdiction or on some of the claims, leaving other claims to be decided in a final award). A final award that does not decide all the claims may be declared null and void under Brazilian law, in which case the courts will require the arbitral tribunal to make a new award.

(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 orders the respondent to do or refrain from doing something to the benefit of the applicant, or otherwise to deliver goods to the applicant, the enforcement judge will make the appropriate order, including setting a time limit for compliance and penalties for failing to comply.

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

If the award requires the payment of a precise amount in cash, the respondent has 15 days from being served with notice of commencement of the enforcement proceedings to pay that amount. Failure to do so will 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?

Brazilian law allows an application to be made for recognition of only part of a foreign award.

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

Also, the STJ may grant partial recognition of an award, for instance, when that part of the award has been the subject of a decision in Brazil that is res judicata.

(Source: STJ SEC 1 - EX, DJ, 1 Feb. 2012)

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 may constitute a ground for refusing recognition under Brazilian law, but there have been no court decisions on this issue to date. However, at the time of writing, a leading case is pending in the STJ concerning an Argentine award set aside by the Argentine courts. The Deputy Attorney General issued an opinion against enforcement arguing, among other things, that the annulled award ceased to have res judicata effect, while a former STF judge has advocated enforcement, in particular given the legal and political context of the annulment.

(Source: New York Convention, Art. V(1)(e); Arbitration Law, Art. 38, VI; SEC 5782, opinion of Deputy Attorney General of the Republic No. 432166, 28 Nov. 2012; opinion of former STF judge Ellen Gracie Northfleet, Revista de Arbitragem e Mediação No. 35, Oct.(Dec. 2012, pp. 279(295.)

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 levied for the 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, Ana Gerdau de Borja, 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