Enforcement of Judgments 2024 Comparisons

Brazilian courts use several methods to identify the asset position of another party. Below are some examples of the methods typically employed by the courts.

• BacenJud 2.0 system – BacenJud 2.0 is a software that facilitates communication between the judiciary and financial institutions, enabling the immediate freezing of bank accounts upon the court’s order, online garnishments, and requests for information on balances and bank statements.
• InfoJud – InfoJud is a tool that provides access to tax information and income tax returns of the parties, provided by the Federal Revenue Service upon a court’s request. This facilitates the identification of undeclared assets and resources, as well as location of goods and assets if the counterparty fails to disclose them spontaneously.
• RenaJud system – RenaJud is a system that integrates the judiciary with the National Department of Traffic (DENATRAN), allowing the restriction, garnishment and blocking of motor vehicles registered in the name of investigated parties.
• National Centre of Unavailability of Goods (CNIB) – Maintained by the National Justice Council (CNJ), this central system allows for the centralised and efficient communication of asset unavailability, covering all Brazilian states. This measure prevents the debtor from selling assets that are attached through a CNIB order issued by the court.
• Real estate registry systems – Judges can request information and determine the blocking of real estate properties through the real estate registry systems, which are interconnected in various regions of the country, mainly São Paulo and Rio de Janeiro.
• National System for Asset Investigation and Recovery (Sniper) – Sniper is a solution developed by the Justice 4.0 Program from National Justice Council (CNJ) that streamlines and facilitates asset investigation for employees and judges of all Brazilian courts integrated into the Digital Platform of the Judiciary (PDPJ).
• Board of Trade database – The Board of Trade’s database allows for a creditor to identify company shares in the debtor’s name.
• Official notifications – Issued by courts to order banks, finance institutions, credit card companies, and social security entities to search for any possible credit from the debtor and to transfer it to a court bank account.
• International co-operation – Through international agreements and co-operation networks, Brazil can request information on assets and resources located abroad, facilitating the recovery of assets outside the country.

The information obtained through these tools is typically made available within the lawsuit records, whose contents are publicly available to third parties, except when courts use the InfoJud tool, as it provides debtor’s sensitive information (when the records are sealed and can be accessed only by the parties to the proceeding).

Except for Board of Trade and real estate property information, none of the information that is produced with the tools above are available to the public. The creditor can request the real estate registry to search for a debtor’s name in its archives. It is also possible to obtain public information if a debtor is facing another lawsuit or is a creditor in other proceedings (as seen in 2.7 Register of Domestic Judgments).

The Brazilian Civil Procedure Code (BCPC) provides for a variety of domestic judgments:

• default judgment (when a party fails to timely submit its defence);
• interim measures;
• provisional measures;
• anticipated judgments (when (i) there is no need for further production of evidence, the case is ready to be tried with the set of documents that were produced with the parties’ submissions and/or (ii) the judgment that must be rendered by court is a matter of law); and
• final judgments, which can have different natures, such as:
1. monetary judgments (ie, ordering a party to pay an amount);
2. declaratory judgments;
3. judgments for specific performance;
4. judgments confirming the injunctive relief previously granted; and
5. dismissals (when the decision terminates the case without analysing its merits).

Finally, the BCPC provides for an atypical judgment in monition actions (ação monitória), whereby a court may order the immediate enforcement of a certain debt whenever the defendant fails to provide its defence or pay its debt after the plaintiff’s production of a set of evidence that indicates a probable debt.

As detailed in the BCPC, if the debtor fails to pay the debt in due time (ie, within 15 workdays, as established by law) or disclose its assets voluntarily, the creditor can search the location of assets through the measures listed in 1.1 Options to Identify Another Party’s Asset Position and request the attachments of goods/assets through the following means.

• Compulsory conveyance of property – this measure forces the transfer of ownership of a specific property from the judgment debtor to the judgment creditor to set-off the judgment debt (adjudicação). Once the transfer is complete, the creditor becomes the new legal owner of the property.
• Court auction – this is the legal process of selling the debtor’s assets under a court-supervised proceeding, usually through a public auction administered by the enforcement judge. It is normally used if a debtor owns valuable personal property, such as apartments, houses, vehicles, jewellery, or valuable assets (artworks or collector’s pieces), these items can be auctioned off to generate the necessary funds to pay the creditor. Typically, an auction is preceded by a court evaluation process, whereby an expert appointed by the court evaluates the debtor’s asset so the value of the asset may be established in the auction. Several disputes may arise between the parties as to the correct amount to be assigned to a certain asset.
• Appropriations of gains and revenues of a company or of establishments and other assets – this measure is adopted to constrict different types of incomes. The court identifies the debtor’s sources of income, such as profits from a certain business, rental income from leasing activities, dividends paid by shares held in public companies, or other revenue streams.

These enforcement measures ensure that judgment creditors have effective means to recover debts from judgment debtors who fail to voluntarily satisfy court judgments. Each measure involves specific legal procedures to protect the rights of both the creditor and the debtor while ensuring compliance with the law.

Typical costs involved in the enforcement of a judgment vary greatly on a case-by-case basis and depend on the state or federal court in which the enforcement action is brought.

In addition to attorney’s fees to file the action, a party enforcing a judgment will need to pay for court fees, which vary depending on the amount in dispute and in which Brazilian state the court is located. Usually, “high-demand” courts, such as the São Paulo or the Rio de Janeiro state courts, are not too expensive, as opposed to remote courts. São Paulo courts, for instance, charge amounts equal to 1% of the amount involved in the dispute. Rio de Janeiro collects 2% of the involved amount. The reimbursement of court fees can be claimed from the debtor as part of the enforcement procedures.

Further, if enforcement requires asset constraint and attachments, the party seeking enforcement will have to pay each time it requests the judge to issue an order to locate assets, as seen in 1.1 Options to Identify Another Party’s Asset Position. Albeit individual orders are not expensive, a lengthy enforcement proceeding with multiple orders can become costly.

In fact, enforcement proceedings can take much longer than the main proceeding in which the judgment was rendered. Current estimates are of three to four years. This is due to the difficulties in locating and swiftly seizing assets from defendants, who usually employ dilatory tactics to hide assets, such as transferring the assets to another person or entity, or by keeping savings overseas. The most efficient form to circumvent this difficulty is by using all available tools to locate assets, as seen in 1.1 Options to Identify Another Party’s Asset Position.

There are no specific post-judgment procedures for determining what assets the defendant owns and where they are located. Such investigation is made by the creditor within the enforcement proceeding phase with the court that rendered the award. To locate the debtor’s assets in the enforcement proceedings, a party may request the judge to issue orders to the Brazilian Central Bank, Real Estate Registry Systems, Federal Revenue Service etc, as seen in 1.1 Options to Identify Another Party’s Asset Position.

Once an award is rendered by the court, the defendant has a narrow set of ways to challenge an enforcement. These are the following.

• Seeking a stay of the enforcement – measure to seek a legal order that temporarily halts the enforcement of a judgment. Pursuant to Article 525 (6) of the BCPC, the stay of the enforcement procedure is contingent on the debtor posting a guarantee to secure the amount pursued by the creditor and that the judge finds the arguments raised by the defendant to be plausible.
• Seeking to set aside the enforcement – setting aside the enforcement means overturning or invalidating the enforcement order due to procedural or substantive issues.
• Filing an appeal with a staying effect order request – generally, enforcement actions are only available once the award is confirmed by the Court of Appeal. There are exceptions where the rendering of an award by the first instance judge may be immediately enforced, regardless of the filling of an appeal by the losing party (eg, tenant disputes, alimony disputes, awards confirming injunction reliefs previously granted, etc). In these exceptional cases, the appealing party must request the second instance judge to grant a staying effect order to the award so it may prevent the creditor (ie, the appealed party) from commencing enforcement action.
• In specific circumstances, filing an action to declare the judgment null and void – this action is typically based on fundamental flaws such as lack of jurisdiction, violation of due process, or the judgment being obtained by fraud. An action to declare a judgment null and void is a specific action filed directly to the court of appeals. This action is only possible if (i) new relevant evidence emerged after the judgment was rendered; (ii) the judgment violated the law; (iii) the judgment was rendered by a partial judge; (iv) the judgment was rendered under fraud; and (v) the judgment was based on a factual error.

If one year has elapsed without the debtor being located or attachable assets being found, the judge will order the case file to be archived.

There are no unenforceable domestic judgments by nature in Brazilian law. However, an enforceable judgment can become unenforceable for a variety of reasons. For instance, if a revision court modifies or annuls a judgment, that judgment can no longer be enforced on its original terms. In other circumstances, a party can file a motion to suspend or dismiss the enforcement proceeding of a judgment. If such motion is granted, the enforceable award will become temporarily (suspension) or definitely (dismissal) unenforceable.

There is no central register of all judgments. However, all Brazilian state and federal courts hold records of all ongoing and concluded public legal processes. It is possible to search for entities or an individual’s name before any Brazilian court and the court will issue a certificate of all ongoing or concluded legal processes in which that entity or individual was or is a plaintiff or a defendant, provided that the legal proceeding is public (which is the standard in Brazil).

Usually, this certificate contains (i) the name of the searched entity or individual; (ii) the court number of the legal process; and (iii) the date on which the legal process commenced. Issuing certificates is common practice when conducting a due diligence, for instance.

Moreover, all courts in Brazil provide access to lawsuits through their respective websites. If a lawsuit is electronic, any registered lawyer will be able to access the records of such lawsuit, provided that such process is not under seal.

In Brazil, a judgment debtor who has paid what is owed cannot remove the judgment or the existence of the lawsuit from the court’s records. Upon accessing the lawsuit, one will be able to see whether the process has become res judicata.

On another aspect, if an individual is in debt by not complying with a judgment order, the creditor may request credit companies to publicly mark that individual as a debtor. By doing so, the debtor will face difficulties to raise credit through financial institutions, retain mortgages, insurances and bank guarantees. To lift this mark, the debtor must pay what is owed. Albeit this is not a register of judgments, it is a public register of debts that compels the debtor to comply with the judgment award.

Similarly, if a judge orders the attachment of a property, this attachment will be registered at the relevant Real Estate Public Register. If the debtor pays their debt, they may request the judge to lift the attachment from the public registries.

The Brazilian Superior Court of Justice (Superior Tribunal de Justiça – STJ) is the competent authority for recognising foreign judgments, in accordance with Article 105, I, ‘i’ of the Brazilian Constitution.

Pursuant to Article 961 of the BCPC, a foreign judgment will only have effect in Brazil (and, therefore, will be suitable for enforcement) after recognition by the STJ.

The foreign judgment must meet specific criteria to be recognised and enforced, such as: (i) the judgment must be final; (ii) the court that issued the judgment must have had proper jurisdiction over the case; (iii) the judgment must have been rendered following due process of law, with both parties having been given the opportunity to present their case; (iv) the judgment must not violate Brazilian public policy; and (v) the judgment must be duly authenticated and translated into Portuguese by a sworn translator.

The main treaties relevant for the enforcement of foreign judgments in Brazil are the following.

• The Hague Convention on Choice of Court Agreement – this Convention aims to ensure the effectiveness of choice of court agreements between parties in international civil or commercial cases. It has a positive impact, as it promotes legal certainty and predictability in international business by upholding the parties’ autonomy in choosing a forum for dispute resolution and facilitating cross-border enforcement of judgments.
• New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards – this Convention aims to facilitate the recognition and enforcement of foreign arbitral awards and the referral by a court to arbitration. It is a cornerstone of international arbitration, providing a reliable and widely recognised framework for the enforcement of arbitral awards across borders, thus encouraging international trade and investment.
• Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards – this Convention seeks to establish a framework for the recognition and enforcement of judgments and arbitral awards among member states of the Organization of American States (OAS). The convention enhances legal co-operation and predictability within the Americas by establishing common standards for the recognition and enforcement of judicial decisions and arbitral awards, thus fostering cross-border legal and commercial activities.

Brazilian courts maintain a consistent “friendly” approach to the enforcement of different types of foreign judgments (either judicial or arbitral awards). Regardless of the nature of the foreign judgment, all judgments must adhere to the same legal criteria as outlined by the BCPC and the Internal Rules of the STJ. This uniformity ensures that every foreign judgment undergoes a standardised process for recognition and enforcement, which includes meeting the requirements of jurisdictional competence, finality and conclusiveness, due process, and compatibility with Brazilian public policy. The STJ rigorously applies these criteria to ensure that the enforcement of foreign judgments aligns with Brazilian legal principles and procedural standards. Although the scrutiny is rigorous, in very few cases a foreign award is not recognised by the STJ.

The grounds for refusal of foreign judgments are defined if:

• the foreign body issuing the foreign award lacked proper jurisdiction to do so;
• the judgment is contrary to Brazilian public policy;
• the case records show that the defendant was not given proper notice or the opportunity to defend its case; and
• the debtor proves that the judgment was obtained by fraud, which is against Brazilian public policy.

There is also a dispute on the possibility of enforcing foreign provisional measures.

The recognition procedure is regulated by Articles 216-A to 216-X of the Internal Rules of the STJ (RISTJ). The requirements for the recognition of a foreign judgment are provided for in Article 963 of the BCPC and Articles 216-C and 216-D of the Internal Rules of the STJ. The analysis of the foreign judgment by the STJ must not address the merits of the case, since STJ adopts the juízo de delibação (the “Deliberative Review”) as an interpretation criteria. The Deliberative Review is a procedural mechanism used by the STJ in Brazil during the recognition of foreign judgments. This review is characterised by its limited scope feature, focusing primarily on formal and procedural aspects rather than the merits of the case. The STJ does not re-examine the factual or legal findings of the foreign court; instead it ensures compliance with specific requirements and principles. The process shall be conducted as follows.

• The creditor must file a submission for recognition of the foreign judgment before STJ, which must include the original or a certified copy of the foreign judgment, proof that it is a final judgment (ie, with res judicata effects), and an official translation into Portuguese.
• The debtor must be notified and given the opportunity to present a defence against the recognition.
• The STJ may hold a hearing to assess the compliance of the foreign judgment with the legal requirements. Then, the case is judged before the Special Court of the STJ.

In addition to legal fees for hiring an attorney, the party must pay BRL247,14 in judicial costs (as per Resolution STJ n. 2/2017, updated by Normative Instruction STJ/GP n. 1, from 15 January 2024). According to the Brazilian Ministry of International Affairs, if all procedural documents are included and there is no objection, the average processing time will be two months, which can vary in accordance with the complexity of the case. However, in practice, the process takes at least six months even if the recognition is not challenged by the debtor. If the recognition is challenged by the debtor, then the process will take approximately 12 to 18 months.

The final decision in this process will be a ruling, either approving or rejecting the foreign judgment. If approved, the attorney must proceed with its enforcement, which involves issuing the Letter of Judgment. The creditor will be informed of the availability of the Letter of Judgment and the amount to be paid.

Afterwards, under Article 965 of BCPC, the creditor must enforce the award before federal courts of first degree. In this moment, the recognised award is considered to be an enforcement title, as set forth by Articles 771 to 782 of BCPC. Therefore, it must follow BCPC rules concerning enforcement, as a new lawsuit will be triggered to enforce the credit against the debtor. The time and cost of this new procedure will follow that stated in 2.3 Costs and Time Taken to Enforce Domestic Judgments and 2.4 Post-judgment Procedures for Determining Defendants’ Assets.

Challenging the enforcement of a foreign judgment in Brazil involves various legal options and grounds. The following are the primary ways in which enforcement can be challenged:

• if the debtor proves that the foreign judgment is not yet final, by showing – eg, that an appeal is still taking place before the foreign jurisdiction;
• if the foreign court that issued the award did not have proper jurisdiction according to Brazilian conflict of law rules;
• if the debtor proves that it was not properly served in accordance with the laws of the foreign jurisdiction;
• if the debtor proves that it was not granted an opportunity to fully and fairly present its case before the foreign court;
• if the foreign judgment contravenes Brazilian public policy; and
• if the foreign judgment was based on a process that fundamentally violates principles of justice recognised by Brazilian courts.

A notorious Brazilian case concerning the enforcement of foreign judgments – a foreign arbitral award, more specifically – and breach of public policy is the Abengoa v Ometto Case.

In 2009, Abengoa filed for arbitrations before the ICC in New York. After Abengoa had won a favourable award against Ometto, it sought to enforce it in Brazil and, thus, filed for the recognition of the foreign arbitral award before the STJ following the procedure described in 3.4 Process of Enforcing Foreign Judgments. In response, Ometto challenged the recognition of the foreign arbitral award on the grounds that the presiding arbitrator had not been impartial during the conduct of the arbitration. In fact, the presiding arbitrator was a partner at a global firm who represented companies from the same group of companies of one of the parties in the arbitration. This fact had not been disclosed during the arbitration.

When assessing the case, the STJ ruled that the presiding arbitrator had not acted impartially by failing to disclose that his firm had interest in one of the parties and, thus, denied recognition of the foreign arbitral award on the grounds that the award violated Brazilian public policy. This is because it is Brazilian public policy to ensure due process, which entails an impartial judge. In this sense, the STJ found that the foreign arbitral award violated a fundamental principle of Brazilian law.

Pursuant to Article 31 of the Brazilian Arbitration Act, domestic arbitral awards are equivalent in legal effect to any judgment rendered by a judge, and, consequently, can be enforced before any state court of the seat of arbitration accordingly.

In this sense, all measures available to the enforcement of judgments, such as the ones mentioned in 1.1 Options to Identify Another Party’s Asset Position, are also available for the enforcement of arbitral awards. The same holds true for the options to challenge a domestic arbitral award, as highlighted in 2.5 Challenging Environment of Domestic Judgments.

The enforcement of a domestic arbitral award is contingent upon the fulfilment of the requirements set out by Article 26 of the Brazilian Arbitration Act. That is, the arbitral award must contain (i) a report of the proceedings; (ii) the legal grounds and reasoning of the decision; (iii) the reliefs being granted; (iv) the date and seat where it was rendered; and (v) the signature of all arbitrators. Moreover, the arbitral award cannot be null, pursuant to Article 32 of the same Act. See 3. Foreign Judgments for detail on the enforcement of foreign arbitral awards.

Brazilian courts do not vary their approach to the enforcement of different types of arbitral awards. However, while domestic arbitral awards can be enforced before any judge of the seat of arbitration, foreign arbitral awards must be first recognised by the STJ before being enforced before first instance federal judges, as seen in 3. Foreign Judgments.

A domestic arbitral award will not be enforced if it fails to meet the requirements set out by Article 26 of the Brazilian Arbitration Act (see 4.1 Legal Issues Concerning Enforcement of Arbitral Awards), or if the arbitral award is null and void, pursuant to the criteria of Article 32 of the Brazilian Arbitration Act.

An arbitral award will be considered null and void if:

• the arbitration agreement is null and void;
• it was rendered by someone who could not have acted as an arbitrator;
• it was rendered outside the limits of the arbitration agreement;
• it was rendered for prevarication, concussion or corruption; and
• it was rendered outside the time limit determined by the parties or applicable rules.

Scholars also understand that a domestic arbitral award may be considered null and void if it is against public policy. Public policy is a broad term and due to this feature, it is frequently used as grounds over which an action to set aside an arbitral award is brought. In Brazil, there is no immutable concept of public policy. In general, an arbitral award which breaches due process and equality of arms is an award that violates public policy, as it would go against the Brazilian Federal Constitution.

That is, violation of public policy means violation of fundamental principles in Brazil. More than due process and equality of arms, other fundamental principles are free enterprise, dignity, healthcare, party autonomy, and so on.

For the non-enforcement of foreign arbitral awards, see 3.6 Challenging Environment of Foreign Judgments.

Enforcing a domestic arbitral award in Brazil takes roughly the same steps as enforcing any judgment rendered by a judge. In this sense, a party seeking enforcement of a domestic arbitral award will have to:

• file for enforcement proceedings before the state court of the seat of arbitration (ie, if the seat of arbitration was São Paulo, the enforcement must be brought before the São Paulo State Courts);
• pay for the applicable court and service fees; and
• seek orders to locate and seize assets from the defendant, if so required, as detailed in 1.1 Options to Identify Another Party’s Asset Position.

There is no need to seek the recognition of a domestic arbitral award prior to its enforcement in Brazil. See 3. Foreign Judgments for the enforcement steps for foreign arbitral awards.

Costs and time taken to enforce a domestic arbitral award follow the same rationale for regular state court judgments, pursuant to 2.3 Costs and Time Taken to Enforce Domestic Judgments. For foreign arbitral awards, please refer to 3.5 Costs and Time Taken to Enforce Foreign Judgments.

In Brazil, arbitral awards are final and unappealable. However, a party may challenge the enforcement of a domestic arbitral award pursuant to Article 32 of the Brazilian Arbitration Act, as detailed in 4.3 Categories of Arbitral Awards Not Enforced. This challenge can be made by the party resisting enforcement upon being served process by the party seeking enforcement.

Further, under the same circumstances of Article 32 highlighted in 4.3 Categories of Arbitral Awards Not Enforced, a party may file an action seeking to set aside a domestic arbitral award. The action to set aside an arbitral award must be brought within 90 calendar days as of the date on which the parties were notified of the arbitral award.

For challenges to foreign arbitral awards, see 3.6 Challenging Environment of Foreign Judgments.