This article will provide guidance on How To Serve legal papers in Brazil. The Hague Service Convention for serving process and other papers (HSC), effective June 1, 2019, was finalized on March 21, 2019, by a presidential decree in Brazil. Many of the benefits of the serving process through the Hague Service Convention will see change as a result of Brazil’s officially announced objections. However, this is very unlikely, given the Hague Convention combined the different national laws of over seventy nations into a framework law meant to standardize service of the process regardless of where one resides.
When everything is said and done, the Hague Service Convention in Brazil will save time and money, particularly because it has removed the need for further processing by Brazil’s Ministry of Foreign Affairs. However, this saving also comes with the requirement to comply with Brazil Process Service rules. Essentially, plaintiffs should be sure they are well-prepared and well-advised through counsel before beginning any cross-border case.
WHAT IS THE HAGUE SERVICE CONVENTION
‘Hague Service Convention’ refers to an international convention signed in 1964 and approved in 1967. The convention governs the service of judicial and extrajudicial documents abroad. The goal of the Convention was to simplify the service of process mechanisms and make it easier for individuals to get service no matter where they are located. The United States Constitution must be understood in order to interpret its provisions properly.
Central authorities are established in each country to receive service requests from other contracting countries; three model forms are mandated for transmitting requests abroad and returning executed requests. A broad elimination of involvement in domestic and foreign courts is included in the Convention’s primary advancements. The primary innovations of the Convention are [A.] the Establishment of a Central Authority or Authorities in each country as the receiving agent for service requests from other contracting countries, [B.] mandating the use of three model forms for the transmission of requests abroad, and the return of executed requests and [C.] a broad elimination of the involvement of domestic and foreign courts.
According to the HSC’s website, there are now 85 contracting states or members.
To serve a document in a foreign nation may be difficult, even with the HSC. There are many substantive items in the HSC whose purpose is to serve process or other papers in civil or commercial disputes outside of the United States without the necessity for diplomatic channels. The HSC’s jurisdiction is limited to civil and commercial problems, not criminal ones. If the target’s location can be determined, the HSC is triggered.
HOW TO SERVE PROCESS THROUGH THE HAGUE SERVICE CONVENTION
Although it is not the only option, a central authority designated by each HSC member is the primary mechanism of document transfer. The principal method of transferring documents is via a central authority selected by each member of the HSC.
To transmit a request to the member’s central authority, a competent applicant must be authorized to do so by the receiving member. According to the internal legislation of the receiving member, or as requested by the applicant, the documents must be served (provided that it is not incompatible with the internal law of the receiving member). Service is expected to be expeditious after submission. In the end, a certificate of service is included in the request. If a receiving member does not object, articles 8-10 allow further ways of service:
Diplomatic and consular agents may be used to serve papers, as well as authorized process servers, in accordance with Articles 8 and 9. In order to serve in a foreign country, Articles 8 and 10 may be crucial.
HOW DO LETTERS ROGATORY WORK
In a letter rogatory or letter of request, a court requests judicial help from a foreign court. It is common to utilize a letter rogatory to obtain evidence or serve a summons. It is common for courts to seek the aid of foreign courts to get witness testimony, and they may do so either by requesting that witnesses answer questions essential to the determination of the facts or by requesting the production of relevant documents. Letters rogatory assist courts in subpoenaing witnesses from foreign judicial or legislative bodies.
When there is no convention or agreement to regulate cross-border judicial aid, letters rogatory may be used as a stand-alone tool. This is due to the fact that they are court orders for the execution of an act that, if done without the approval of the foreign court, might violate that country’s sovereignty. Because of this, their job is to serve the process or collect evidence in accordance with the agreement of the parties. However, suppose the countries involved are parties to the Hague Service or Evidence Conventions or the Inter-American Convention on Letters Rogatory and Additional Protocol. In that case, the process is likely under the central authorities designated under the treaties, or other designated alternatives are applicable.
WHY IS SERVING PROCESS IN BRAZIL DIFFERENT
Brazil has issued a slew of reservations and declarations. Articles 8 and 10 have been vehemently rejected by Brazil. As a result, diplomats and consuls from other countries will be unable to carry out their duties in Brazil. A litigant in Brazil cannot be served by mail or a process server with papers.
The two methods to serve in Brazil are thus either renunciation of service or using the BCA (Autoridade Central Administrativa Federal). Brazilian courts rarely allow defendants to waive service or litigants to request a waiver at the outset of a case. If the HSC isn’t accessible, service may be carried out by a plaintiff according to BCA or the Inter-American Convention on Letters Rogatory and Additional Protocol, as appropriate (Inter-American Service Convention or IASC). In cases when an address is known, the plaintiff shall only utilize the HSC by submitting the BCA with a written request for assistance. If a plaintiff’s address is unknown, he or she will not utilize the HSC to apply for service but may instead use the Inter-American Service Convention. Personal or alternative service outside of the HSC or Inter-American Service Convention in the United States is not included in the HSC or Inter-American Service Convention definitions.
Requests are typically processed for compliance and then sent to the Superior Court of Justice (Superior Tribunal de Justiça or STJ) after they have been filed to the BCA. Afterward, the STJ files a petition for execution with a federal court (of service). The opposite route, including the STJ, is taken after execution, successful or not. The BCA then notifies the applicant, i.e., the asking or forwarding authority, of the outcomes of the execution and any other relevant data, including objections.
The papers must be translated. Regarding the need for translation, Brazil has not made a statement under Article 5(3). Even if the defendant is fluent in English, the Central Authority will reject the request if users don’t provide all of the documentation in Portuguese. Entering the USM-94 is important. Make certain that it is signed by a court official or an attorney and that it is full and succinct. The individual signing must be a court-appointed official. Portuguese should be included in the Request Form. Only English and French are required for this treaty.
ISSUES WITH ENFORCEMENT OF THE DECISION
Art. 6, which deals with evidence of service, has been declared relevant by Brazil. Brazilian law stipulates that the requisite certificate ‘must be signed by a judge who has jurisdiction or by the [BCA]. It may be unnecessary to comply with art. six if a US plaintiff is primarily interested in having a decision enforced in the US, particularly on a federal level; HSC’s purpose is to offer timely and accurate notification to the general public. Furthermore, the HSC does not prescribe a service period.
Among the issues a plaintiff must answer is who can serve a request to a receiving member’s central authority, i.e., who is authorized to do so. An official or judicial officer in the State where the papers originate is required to send a request adhering to a model attached to the present Convention, without any necessity for legalization or other comparable formality.’
As a result, when papers emanate from the United States, for example, it will determine who is competent via any statement (at least initially). Most HSC members have said that only government officials or judges themselves are ‘competent authorities and, thus, permitted to seek assistance. That is the legal framework of Brazil.
WHO CAN SEND PROCESS SERVICE REQUESTS FROM THE UNITED STATES
There is a list of people and organizations in the United States that may send service requests according to Article 3: a judge, a judge’s aide, a court attorney, or any other person or organization allowed by court regulations. As stated before, ‘any attorney’ may make a request if permitted by the rules of a certain court.
While it is clear in Article 3 of the HSC that private persons are not ‘judicial officials,’ the declaration of the United States seems to adopt a different norm by permitting ‘any other person,’ including a private individual or business, to be authorized by a court ruling. The document’s originator may not be the ultimate arbitrator qualified to apply for membership. All statements and objections to a treaty are usually considered by courts from a destination or receiving member before making a final decision on a treaty’s meaning. The courts in the United States are no different, and they take into account a variety of variables.
Pursuant to the Convention, a plaintiff makes a request for service by completing U.S. Marshall Form USM-272/272A. Three copies of the summons and complaint, as well as an original and two copies of the forms, are included in the request. When serving papers in Brazil using the Form USM 272/272A, the translation into Portuguese must be completed.
It is also crucial to highlight that the Inter-American Service Convention mandates that a Form be stamped and seal-signed by a clerk of the court from which a process is issued, and the signature and seal of a Central Authority of the state where the court is located. As soon as the court has translated and compiled USM272/272A together with all of the related papers, it will then be transmitted by that court to the United States Central Authority (the U.S. Department of Justice). The Central Authority in the United States will forward the request to the Brazilian Central Authority, the Ministry of Justice, which will notarize and consular it.
For exequatur, it will be sent to the Supreme Court of the Federal Republic, and from there, it will be sent to a lower court for service on the defendant. Requests for review are returned to their original court using the reverse process once they have been served.
The time required to serve papers to fulfill Brazil’s stringent legality and procedural standards might take several months.
Suppose a U.S. complaint is served on a Brazilian defendant. In that case, the defendant may file an appeal in a Brazilian court on the premise that the lawyer who initially submitted the request to the BCA lacked competence, thereby nullifying legitimate service. This objection might also be raised by a judicial officer in Brazil’s Ministry of Justice. Additional concerns may be raised by Brazil’s public defense agency, as well. To appear in a Brazilian court, a plaintiff would need to engage a local lawyer.
To avoid any issues with applicant authorization in perfecting service, one may get the approval of a U.S. court for one or more lawyers to make the request. Any court, federal or state, can declare select lawyers to be able to file a request, among other things. Plaintiffs need to take advantage of the simplicity with which they may get relief and therefore alleviate or even completely remove the danger of process service in at least Brazil. Unless it is established that any licensed attorney may serve as an applicant without court consent, a plaintiff should always obtain court clearance before making an HSC request.
Documents can be faxed at (800) 296-0115, emailed email@example.com, mailed, or dropped off at any of our locations. We do require pre-payment and accept all major credit and debit cards. Once payment is processed, your sales receipt is immediately emailed for your records.
Drop-offs must call and make an appointment first to be added to building security to permit access to our office. Documents for service must be in a sealed envelope with payment in the form of a money order or attorney check (WE DO NOT ACCEPT CASH) payable to UNDISPUTED LEGAL INC.; All documents are received by our receptionist.
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1. The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, more commonly called the Hague Service Convention, is a multilateral treaty that was adopted in The Hague, The Netherlands, on 15 November 1965 by member states of the Hague Conference on Private International Law. It came into existence to give litigants a reliable and efficient means of serving the documents on parties living, operating, or based in another country. The provisions of the convention apply to the service of process in civil and commercial matters but not criminal matters.
2. Australia, Canada, China (People’s Republic), France, Germany, Israel, Japan, South Korea, and currently Brazil are all members of the Organization for Security and Co-operation in Europe.
3. Hague Conference on Private International Law 10th session, 1964, developed the HSC. In 1967, the Senate of the United States approved the HSC after a formal statement from President Johnson.
4. Article 8: Each Contracting State shall be free to effect service of judicial documents upon persons abroad, without application of any compulsion, directly through its diplomatic or consular agents.
Any State may declare that it is opposed to such service within its territory unless the document is to be served upon a national of the State in which the documents originate.
5. Article 10: Provided the State of destination does not object, the present Convention shall not interfere with –
a) the freedom to send judicial documents, by postal channels, directly to persons abroad,
b) the freedom of judicial officers, officials, or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials, or other competent persons of the State of destination,
c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials, or other competent persons of the State of destination
6. The Federal Central Administrative Authority (ACAF) is the body in Brazil responsible for adopting measures for the proper fulfillment of the obligations imposed by the 1980 Hague Convention on Civil Aspects of International Child Abduction by the 1989 Inter-American Convention on the International Restitution of Minors and the 1993 Hague Convention Concerning the Protection of Children and Cooperation in Respect of Intercountry Adoption.
With the publication of Decree No. 9,360 of May 7, 2018, the attributions of ACAF are now carried out within the scope of the Department of Asset Recovery and International Legal Cooperation of the National Secretariat of Justice of the Ministry of Justice and Security.
7.Article 5: The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either –
a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or
b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.
Subject to subparagraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily.
Suppose the document is to be served under the first paragraph above. In that case, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.
That part of the request, in the form attached to the present Convention, which contains a summary of the document to be served, shall be served with the document.
8. The Central Authority of the State addressed or any authority it may have designated for that purpose shall complete a certificate in the form of the model annexed to the present Convention.
The certificate shall state that the document has been served and shall include the method, the place and the date of service, and the person to whom the document was delivered. If the document has not been served, the certificate shall set out the reasons which have prevented service.
The applicant may require that a certificate not completed by a Central Authority or by a judicial authority shall be countersigned by one of these authorities.
The certificate shall be forwarded directly to the applicant.
9. USM-272-272A is enough as the formal request for purposes of the Inter-American Convention’s Letters Rogatory form.