APPROVAL OF FOREIGN SENTENCES
International Sovereignty and the Enforcement of Foreign Judgments
Due to principles of international sovereignty, judicial decisions or rulings issued in one country are not automatically accepted or enforceable in another country. This foundational principle governs the recognition of foreign judgments, which means that a ruling issued by a foreign judiciary does not serve as an enforceable title in a different country without going through a formal approval process. Before it can be executed in another jurisdiction, the foreign judgment must be validated and recognized in the local legal system. This process, known as the recognition and enforcement of foreign judgments, ensures that rulings made outside a country’s borders adhere to its own legal standards and principles.
The practice of approving foreign sentences is crucial for facilitating international legal cooperation. By recognizing judgments across borders, courts promote international trade and civil relations, ensuring the security and efficiency of transnational legal transactions. The importance of this procedure has grown with the globalization of commerce and the increasing number of international disputes involving individuals, corporations, and entities.
The Hague Conference and the 2019 Judgments Convention
A major development in this area is the role of The Hague Conference on Private International Law, an international organization dedicated to harmonizing private international law rules across different legal systems. The Hague Conference has taken significant steps to simplify and standardize the rules governing the recognition and enforcement of foreign judgments.
In July 2019, the Hague Conference adopted the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, commonly known as the 2019 Judgments Convention. This convention provides an international legal framework to reduce the complexity of recognizing foreign judgments in civil and commercial matters. It is designed to facilitate the safe and efficient circulation of judgments across borders, making it easier for individuals and companies involved in international disputes to enforce decisions in participating countries.
For countries that are parties to the convention, the international recognition of foreign judgments becomes a more streamlined process, fostering better international cooperation. The convention also strengthens international trade and civil relations by providing a legal mechanism that ensures fairness and predictability in the enforcement of judgments.
Recognition of Foreign Judgments in Brazil
Brazilian law provides a detailed framework for the recognition and enforcement of foreign judgments, governed by the Federal Constitution of 1988, the Code of Civil Procedure, and the Internal Regulations of the Superior Court of Justice (STJ).
Federal Constitution of 1988 (CF/88)
Under the Brazilian Constitution, the Superior Court of Justice (STJ) is granted the authority to approve foreign judgments and grant the exequatur for letters rogatory, which are requests for judicial assistance made by foreign courts. Article 105 of the Constitution explicitly states:
“Art. 105. The Superior Court of Justice is responsible for:
I – Processing and judging, originally:
i) The approval of foreign judgments and the granting of exequatur to letters rogatory.”
This means that any decision made abroad, whether it is judicial, administrative, or arbitral in nature, must be approved by the STJ before it can be enforced in Brazil. The STJ’s role in this process is to ensure that the foreign judgment complies with the requirements of Brazilian law before granting it recognition.
Code of Civil Procedure (CPC)
The Brazilian Code of Civil Procedure (CPC) further outlines the process and requirements for recognizing foreign judgments. Article 961 of the CPC states:
“Art. 961. A foreign decision will only be effective in Brazil after the approval of a foreign judgment.”
This provision highlights the necessity of formal approval before a foreign decision can take effect in Brazil. Without the STJ’s approval, a foreign judgment holds no legal weight in Brazilian courts.
Requirements for Approval of Foreign Judgments
For a foreign judgment to be validated in Brazil, it must meet specific legal criteria. These requirements are outlined in Article 963 of the CPC:
1. Competent Authority: The foreign judgment must be issued by a competent authority.
2. Due Process: The defendant must have been properly cited, even if they defaulted.
3. Effectiveness Abroad: The foreign judgment must be effective and final in the country where it was issued.
4. Non-Contradiction of Brazilian Law: The judgment must not violate res judicata (i.e., a matter that has been adjudicated by a competent court and may not be pursued further by the same parties) in Brazil.
5. Official Translation: The judgment must be accompanied by an official translation into Portuguese, unless a treaty provides otherwise.
6. Public Order Considerations: The judgment must not offend Brazilian public order or national sovereignty.
Additionally, Article 964 establishes that a foreign judgment will not be approved if the matter falls within the exclusive competence of the Brazilian judiciary.
Homologation of Arbitration Awards
It is important to note that when homologating foreign arbitral awards or judicial sentences, the STJ does not examine the merit of the case. Instead, the court focuses solely on whether the formal requirements for homologation are satisfied. The STJ only examines the substantive issues of the case if there is a clear violation of public order, national sovereignty, or human dignity.
The Role of the Hague Apostille Convention
Brazil’s participation in the Hague Apostille Convention since 2016 has simplified the process of authenticating foreign documents. Documents issued in countries that are signatories to the convention no longer require consular authentication before they can be submitted for recognition in Brazil. Instead, these documents can be apostilled in their country of origin, reducing administrative hurdles in the homologation process.
Internal Regulations of the Superior Court of Justice
The internal regulations of the STJ provide further details on the process for recognizing foreign judgments. Key provisions include:
•Article 216-A: The STJ president is responsible for approving foreign judgments, except in specific cases outlined by the court.
•Article 216-C: The party seeking homologation must submit an initial petition containing the necessary procedural and substantive documents. These documents must include an official or sworn translation of the foreign judgment and other relevant evidence, such as proof of valid citation and finality of the foreign decision.
•Article 216-F: The court will not approve foreign judgments that violate public order, human dignity, or national sovereignty.
•Article 216-H: The interested party is summoned to contest the homologation request within 15 days, and defense arguments can only challenge compliance with the formal requirements outlined by the STJ.
If the request is contested, the case is distributed for judgment by the STJ’s Special Court, which ensures consistency in jurisprudence on the matter.
Documents and Procedures for Homologation
To initiate the process of homologating a foreign judgment in Brazil, several documents are typically required, including:
•Power of attorney for legal representation.
•The foreign judgment or arbitral award, apostilled or authenticated by the Brazilian consulate if the issuing country is not a signatory to the Hague Apostille Convention.
•Proof of valid citation or default of the opposing party.
•Proof of the finality of the foreign judgment.
•A sworn translation of the foreign documents into Portuguese.
•Identification documents and corporate articles of incorporation (if applicable).
Brazilian Case Law on the Recognition of Foreign Judgments
Brazilian jurisprudence has addressed several important questions regarding the homologation of foreign judgments. One such issue is whether a third party, not involved in the foreign proceeding, may request the recognition of a foreign judgment in Brazil. The STJ has ruled that:
“The party requesting recognition of a foreign judgment does not necessarily need to be the same party that participated in the foreign process. It is enough that it has a demonstrated legal interest.”
(HDE 710 / EX Superior Court of Justice).
Another important point concerns the potential conflict between a foreign judgment and a domestic legal proceeding. The STJ has established that:
“The mere pendency of a legal action in Brazil does not prevent the homologation of the foreign judgment; but the existence of a judicial decision issued in Brazil that is contrary to the content of the foreign judgment prevents its homologation.”
(HDE 1396 / EX, Homologation of Foreign Decision, 2018/0036862-1, Rapporteur Justice Nancy Andrighi).
This jurisprudence underscores the importance of reconciling foreign and domestic legal outcomes to ensure that the homologation process does not contradict existing rulings within Brazil.
The recognition and enforcement of foreign judgments play a critical role in promoting legal cooperation across international borders. Through a well-defined process, Brazil ensures that foreign judgments are recognized in accordance with its legal standards, safeguarding national sovereignty, public order, and the principles of due process. With the evolving global landscape and frameworks such as the 2019 Hague Judgments Convention, the recognition of foreign judgments continues to become a more accessible and streamlined process. Legal practitioners must remain vigilant in navigating this complex field to provide their clients with effective legal representation in transnational disputes.
