Brazil: Hague Service Convention Now in Force

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The HCCH’s Convention of 15 November 1965 on theService Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (commonly known as the “Hague Service Convention”) is in already in force in Brazil for internal law purposes.

Brazil deposited its instruments of accession on 29 November 2018 and on 21 March 2019 the Presidential Decree (Decree 9,734/2019) was published in the Federal Gazette, making the Convention binding on Brazil. This was a very quick process for Brazil’s standards. Foreign parties will be able to serve Brazilian parties under the terms of the Convention from 1 June 2019.

This is the eighth HCCH Convention that Brazil has joined (with the most important for the purposes of international civil litigation and arbitrations being the Hague Evidence Convention – see my comments here).

Members of the Convention include Australia, Canada, China, Denmark, Germany, Greece, Ireland, Italy, Japan, South Korea, the Netherlands, Norway, Sweden, Switzerland, the United Kingdom and the United States.

Unfortunately, Brazil has made declarations and reservations that take away many of the advantages contained in the Hague Services Convention. Specifically:

• Article 5, third paragraph and article 7, second paragraph: the documents sent to Brazil must be translated into Portuguese (except for the standard terms contained in the request form annexed to the Convention);
• Article 6: the request form must be signed either by the Central Authority or by the Judge in charge;
• Article 8: foreign diplomatic and consular agents will not be allowed to effect service in Brazil; and
• Article 10: service by post from abroad will not be allowed, as will not requests made directly to Brazil’s judicial officers – requests will need to be made to Brazil’s Central Authority.

The usual procedures for effecting service in Brazil by foreign litigants will remain as explained here. Requests for service made under the Hague Services Convention will follow the procedures set out in the Convention.

Note that the Hague Services Convention does not affect service of process for arbitration matters. Service for arbitration proceedings can be effected in accordance with the applicable arbitration body’s rules and the ensuing arbitral award will be enforceable in Brazil if it meets the requirements of the New York Convention.

I have acted for many foreign clients looking to effect service in Brazil in the last decade and a half. The courts have been consistently been in favor of granting exequatur and attempting to effect service expeditiously.

However, due to the overload of court cases – together with Brazil’s various avenues for appeals and procedural challenges – service of the process often takes over a year to be affected. It is hoped that the service of process under the Hague Services Convention will be affected more quickly and cheaply.

Source: FABIANO DEFFENTI

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