By: Felipe Hermanny
Campos Mello Advogados is an independent law firm
The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention) will enter into force for Brazil on 1 June 1, 2019. With the accession of Brazil, the Hague Service Convention now has 74 contracting parties.
Very recently, on March 21, 2019, Presidential Decree no. 9,734/2019) was published in the Official Gazette, making the Convention binding and in force in Brazil for internal law purposes.
The purpose of the Hague Service Convention is to facilitate and standardize international service in civil and commercial matters.
Before the Service Convention, foreign service in Brazil had to be done either via Letters Rogatory or by specific procedures established in bilateral agreements of international cooperation.
Usually, service of process in Brazil is effected pursuant to the Inter-American Convention on Letters Rogatory (IAC).
With the enactment of Decree no. 9.734/2019, the form used for international service is now the same for all members of the Service Convention, accelerating and giving efficiency to the service process.
Unfortunately, Brazil has made some reservations and rejected some forms of service, taking away many advantages of the Convention. Among the changes:
- The documents sent to Brazil must be translated into Portuguese
- The request form must be signed either by the Central Authority or by the responsible judge
- Foreign diplomatic and consular agents will not be allowed to effect service in Brazil and
- Service by post from abroad will not be allowed, as will not any request made directly to Brazil’s judicial authorities – requests will need to be made to Brazil’s Central Authority.
Please note that the Hague Service 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 arbitral award will be enforceable in Brazil if it meets certain requirements.
So, will service in Brazil be better under the Hague Service Convention? It surely offers certain clear advantages if you consider the preparation of the request itself, but only time will tell if the Brazilian Central Authority will be efficient once documents arrive in Brazil.
Among members of the Hague Service Convention are Australia, Canada, China, Denmark, Germany, Greece, Ireland, Italy, Japan, South Korea, the Netherlands, Norway, Sweden, Switzerland, the United Kingdom and the United States.
Brazil has been a member of the Hague Conference on Private International Law – HCCH since February 2001 and is now a contracting party to eight HCCH conventions.