Where should a foreign company or foreign individual apply to initiate enforcement proceedings in Brazil?
The party who wins the case with a court judgment has the right to commence enforcement based on the final judgment.
Brazil has 26 states with independent legislative authority, so practices may vary by state. To mitigate this, Regional Courts develop case law.
Enforcement must be initiated by petitioning the court that issued the judgment.
Foreign court judgments may also be enforced in Brazil provided they have been recognized (exequatur) and are enforceable.
As a rule, the legal enforcement process in Brazil is carried out by filing a lawsuit, because enforcement cannot proceed without a court order.
On what documents can enforcement proceedings be based?
In principle, the party seeking enforcement must have a final court judgment.
If there is no judgment, the party may initiate enforcement only if the contract bears the signatures of at least two witnesses.
A contract lacking two witness signatures cannot be enforced directly; in such cases, a lawsuit must be filed to prove the claim before it can be enforced.
What is the average length of proceedings in a contract dispute in Brazil?
In the São Paulo courts, the average duration is between 700 and 800 days.
What is the average litigation cost in Brazil?
In contract law cases, total litigation costs amount to approximately 20% of the claim value.
What is the contract enforcement rate?
In São Paulo, Brazil, the contract enforcement rate is 65.4%.
How long does filing, enforcement, and collection take?
Filing and service: approximately 40–45 days
Trial and adjudication: approximately 480–500 days
Enforcement of the judgment: approximately 210–240 days
Are there special courts that handle only commercial cases?
No.
Are there courts that provide expedited proceedings based on the amount in dispute?
Yes. Cases with low claim values are heard by courts that conduct expedited proceedings.
May parties appear in person?
Yes. Parties may represent themselves.
Is there a “pre-hearing” practice?
Yes. Pre-hearings are used in Brazilian courts.
How are judges assigned to cases?
Judges are assigned automatically to newly filed cases.
Is there any difference in evidentiary weight between male and female witnesses?
No. Testimony by men and women has the same probative value.
Are limitation periods and other key time limits applied?
Yes. There are rules that set general time standards for civil cases and matters.
Are electronic litigation tools used?
Yes. Electronic case-management tools are used by lawyers and courts, and cases can be filed electronically.
Can court fees be paid electronically?
Yes. Court fees can be paid electronically.
Are court and Supreme Court decisions published electronically?
Yes. Court decisions are accessible to the public via electronic publications.
Is pre-litigation mediation applied?
Yes. There is separate legislation for pre-litigation mediation. If the parties successfully complete mediation, fee and tax exemptions apply.
Is arbitration recognized for local commercial disputes?
Yes. Arbitration procedures are regulated in the procedural laws.
Must a foreign person provide security to initiate enforcement?
As a rule, foreigners are not required to post security to commence enforcement, but they must pay court fees. If the foreigner has no residence or presence in Brazil, the court may require an advance to cover costs in the event the case is lost.
What are the limitation periods for legal proceedings in Brazil?
According to Súmula 150 of the Supreme Federal Court (Brazil’s highest judicial body), the limitation period for initiating enforcement is the same as the limitation period for filing the underlying action.
Unless a shorter period applies under the Brazilian Civil Code, the general limitation period is 10 years.
There are also specific limitation periods of 1, 2, 3, 4, and 5 years.
If the creditor has only an invoice, which legal path is available to collect the debt?
The creditor must file a declaratory action to establish that the invoice constitutes an enforceable instrument.
If the creditor holds a negotiable instrument, how is collection effected?
The creditor files suit against the debtor. Before the preliminary hearing, the debtor is notified to pay or provide sufficient security, failing which the debtor’s assets may be seized.
If the creditor holds only a contract, how should collection proceed?
If the contract bears at least two witness signatures, enforcement may be initiated directly without filing a lawsuit.
If the contract lacks two witness signatures, the creditor must file suit and prove the claim.
If the debtor fraudulently dissipates assets, can the transactions be set aside?
A Paulian action may be filed to set aside acts carried out in bad faith that diminish the debtor’s estate; the assets are restored to the debtor’s patrimony and may then be levied upon by the creditor.
The burden of proof lies with the creditor, who must prove the debtor’s intent to cause harm.
If the debtor has used a false address, invoice, or any sham commercial act, can the creditor initiate criminal proceedings?
Under Brazilian criminal law, company officers may be personally liable for fraudulent acts committed in the name of the company.
How soon after filing will notice be served on the debtor? Is electronic service used?
Notice may be served within a maximum of 60 days, and sometimes sooner. Judicial proceedings in Brazil are electronic, and in some instances service is considered merely a procedural act within the system; however, in certain cases service by mail or by an officer of the court (bailiff/probation officer) is mandatory.
What happens if the debtor cannot be found at the address?
Authorities will search public databases for alternative addresses; if unsuccessful, service may be effected by publication.
On what grounds can the debtor halt enforcement proceedings?
Typical defenses include proof of payment and similar objections; the court will examine these defenses.
What documents must a foreign creditor provide to initiate enforcement in Brazil?
For a corporate creditor: company documents, a power of attorney, and supporting evidence must be attached.
For an individual creditor: passport, power of attorney, and supporting evidence must be attached.
All documents must be submitted with a sworn (certified) translation into Portuguese.
What is the procedure for a foreign person to grant a power of attorney to a Brazilian lawyer?
The power of attorney must be notarized. The method for granting the power in the foreigner’s country is relevant and governed by the Inter-American Convention on the Legal Regime of Powers of Attorney to be Used Abroad. In principle, the procedure of the grantor’s country applies; however, if the country where the power will be used requires additional formalities, those must also be observed.
Key Distinction in Brazilian Debt Collection
The basic distinction is whether the claim is supported by a judgment (enforceable title) or not.
Brazil’s general enforcement system is built on the enforcement of judgments.
If you hold an enforceable judgment from a Brazilian court, you may commence judgment enforcement to collect the amount awarded.
If your claim is not based on a court decision but on a valid contract, the presence of witness signatures is crucial.
If the contract bears the signatures of at least two witnesses, you may initiate enforcement without filing a lawsuit.
If not, you must file suit to prove the claim before enforcement can proceed.