Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio
I. Sources of private international law
1. Major legislation
Although Brazil is a federal country, as enshrined in art 22 of the Brazilian Constitution of 1988 (published in the Official Federal Gazette of Brazil (‘Diário Oficial da União’), No 191-A of 5 October 1988, henceforth DOU), the Federal Union has sole prerogative to legislate on most legal subjects, including matters of private international law. Federal legislation prevails over the laws of the various states of Brazil. There are no state laws dealing with private international law and procedural law matters. While legislative provisions with a bearing on private international law can be found in several statutes, the primary norms on the matter are found on a single statute, the ‘Lei de Introdução às Normas do Direito Brasileiro’ (Introductory Act to the Norms of Brazilian Law, DOU of 9 September 1942, henceforth LINDB). This Act has traditionally been p. 1considered a companion Act to the Civil Code, and even bore the name ‘Lei de Introdução ao Código Civil’ (Introductory Act to the Civil Code), before the name was changed in 2010 through Law No 12.376 (DOU of 31 December 2010) so as to more appropriately capture the comprehensive nature of the Act.
The LINDB contains primarily norms on →choice of law, in addition, among others, to general rules on statutory interpretation and the entry into force of legislation. Other Acts also contain important dispositions of private international law, such as the Civil Procedure Code (Código de Processo Civil, DOU of 17 March 2015, henceforth CPC), has been thoroughly revised, and its modified version – on which we have relied for this entry – entered into force in March 2016. The revised version of the CPC goes a long way towards clarifying the procedural rules on private international law in the Brazilian courts, among other things less relevant for our present purposes. Resolution No 9 (2005) of the Superior Court of Justice (Superior Court of Justice Gazette (Diário da Justiça do Superior Tribunal de Justiça), of 10 May 2005, henceforth Resolution 9), to some extent merged into the new CPC, is also significant and deals exclusively with the matter of recognition and enforcement of foreign judgments, conferring exclusive competence on the court (transferred in 2004 through Constitutional Amendment No 45 from the Superior Federal Court, DOU of 31 December 2004, itself equivalent to a constitutional court).
2. International conventions
International instruments play an important role with respect to Brazilian private international law. The tradition of drafting international instruments in private international law for the Americas dates back to the 1910s. As the Second World War erupted in Europe, countries in this hemisphere became increasingly concerned with their legal status as neutral states, which in their view required clear statements on their international duties and obligations with respect to both public and private international law. International law in the region was initially concerned with commercial matters and trading among neutral nations as well as between those and countries at war, but soon expanded to cover the full spectrum of private international matters.
These projects gained momentum and became two separate projects, fully to codify both public and private international law. While the former was eventually downsized and delivered relatively discrete instruments, the codification of private international law project culminated in the Bustamante Code (Convention on Private International Law (Bustamante Code), adopted at Havana on 20 February 1928 at the Sixth International Conference of American States; OAS, Law and Treaty Series, No 34).
Named after its leading drafter, Antonio Sánchez de Bustamante (→Bustamante, Antonio Sánchez de), a Cuban delegate at the conference, the Bustamante Code is to this day the most comprehensive codification of private international law rules in the form of an international treaty. Brazil has been a party to this treaty since 1929, which has profoundly influenced private international law in Brazil. While several parts of the Bustamante Code are now considered obsolete, it is still a valid source of law in Brazil and must be taken into account.
Also in the Pan-American context, Brazil has been an avid supporter of the Inter-American Conferences on Private International Law (→CIDIP). These conferences are convened regularly under the aegis of the Inter-American Juridical Committee, a part of the Organization of American States charged with the progressive development and codification of international law in the Americas.
The CIDIPs are convened in order to examine specific topics pertaining to private international law, with a view to draft regional conventions. At the time of writing, seven of these conferences had been convened, approving 26 instruments (including conventions, model laws, protocols and uniform documents).
The CIDIP process cooperates with several global organizations charged with matters of codification of private international law, including →UNIDROIT, the Hague Conference (→Hague Conference on Private International Law) and →UNCITRAL, but also the Inter-American Development Bank.
While the CIDIP conventions are negotiated with the input of all OAS members, in effect they are ratified primarily by Latin American countries, including Brazil. Thus, Brazil has ratified a number of CIDIP conventions, including the Inter-American Private International Law Convention (Inter-American Convention on general rules of private international law p. 1of 8 May 1979, 1457 UNTS 3), the Inter-American Powers of Attorney Convention (Inter-American Convention of 30 January 1975 on the legal regime of powers of attorney to be used abroad, 1438 UNTS 263, OAS, Treaty Series, No 45), the Inter-American Commercial Companies Convention (Inter-American Convention of 8 May 1979 on conflicts of laws concerning commercial companies, 1439 UNTS 26), the Inter-American Checks Convention 1979 (Inter-American Convention of 8 May 1979 on conflicts of laws concerning checks, 1439 UNTS 1986), the Inter-American Juridical Persons Convention (Inter-American Convention on personality and capacity of juridical persons in private international law of 24 May 1984, 1752 UNTS 237; 24 ILM 465), the Inter-American Arbitration Convention (Inter-American Convention of 30 January 1975 on international commercial arbitration, 1438 UNTS 249, OAS, Treaty Series, No 42), the Inter-American Letters Rogatory Convention (Inter-American Convention of 30 January 1975 on letters rogatory, 1438 UNTS 283), with its protocol (Additional Protocol of 8 May 1979 to the Inter-American Convention on letters rogatory, OAS, Treaty Series, No 56; 1438 UNTS 283), and the Inter-American Foreign Law Convention (Inter-American Convention of 8 May 1979 on proof of and information on foreign law, 1439 UNTS 111). It has signed, but not yet ratified, the Inter-American Contracts Convention (Inter-American Convention of 17 March 1994 on the law applicable to international contracts, 33 ILM 732) and the Inter-American Domicile Convention (Inter-American Convention of 8 May 1979 on domicile of natural persons in private international law, 1439 UNTS 44). Even though these latter two instruments have not been ratified, they can arguably be used to interpret Brazilian private international law, because of the principle of good faith contained in the Vienna Convention on the Law of Treaties (Vienna Convention on the Law of Treaties of 23 May 1969, 1155 UNTS 331).
In addition to Inter-American regional instruments, Brazil is also a party to several other international instruments by international specialized bodies and organizations. One of the most prominent is →UNCITRAL and, out of the instruments prepared by their organization, Brazil is also a party to the New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3) and the CISG (United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods, 1489 UNTS 3, ratified in 2013).
Brazil is also an active member of UNIDROIT, another specialized body connected to the UN. Out of their instruments, Brazil is a party to the Cape Town Convention (Convention of 16 November 2001 on international interests in mobile equipment, 2307 UNTS 285) and to its protocol (Protocol of 16 November 2001 to the Convention on international interests in mobile equipment on matters specific to aircraft equipment, 2307 UNTS 615), as well as the UNIDROIT Convention on Stolen Cultural Objects (UNIDROIT Convention on stolen or illegally exported cultural objects of 24 June 1995, 2421 UNTS 457).
The Hague Conference on Private International Law is also a place where Brazil routinely engages with private international lawmaking. Brazil rejoined the Hague Conference in 2001, after having been a member between 1972 and 1978. It is a party to three instruments of the Hague Conference: the Hague Child Abduction Convention (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89), the Hague Access to Justice Convention (Hague Convention of 25 October 1980 on international access to justice, 1510 UNTS 375) and the Hague Adoption Convention (Hague Convention of 29 May 1993 on protection of children and cooperation in respect of inter-country adoption, 1870 UNTS 167; 32 ILM 1134).
Finally, Brazil is also a founding member of MERCOSUR, a regional trade arrangement that since its creation in 1994 has approved a series of instruments on private international law. MERCOSUR law is not by its nature supranational, so instruments need to be ratified by each country before they enter into force there, and in other words have no direct effect. Accordingly, Brazil is a party to the Protocol of Las Leñas (Las Leñas Protocol of 27 June 1992 on judicial cooperation and assistance in civil, commercial, labour and administrative matters, 2145 UNTS 421), the Protocol of Buenos Aires (Buenos Aires Protocol on international jurisdiction in contractual matters (1994), MERCOSUR/CMC/DEC. No 01/94, available at <www.sice.oas.org/trade/mrcsrs/decisions/AN0194_e.asp>), the Ouro Preto Protocol (Additional Protocol to the Asunción Treaty on the Institutional Structure of MERCOSUR p. 1(Ouro Preto Protocol) of 17 December 1994, 2145 UNTS 300, available at <www.mercosur.int/msweb/SM/Normas/PT/CMC_1994_OuroPreto.pdf>) and the Santa Maria Protocol (MERCOSUR Santa Maria Protocol of 17 December 1996 on international jurisdiction in consumer relation matters, MERCOSUR/CMC/DEC. No 10/96, available at <www.mercosur.int/msweb/Normas/normas_web/Decisiones/ES/Dec_010_096_.PDF>).
3. Role of case-law
As a civil law jurisdiction, Brazil accords a somewhat limited role to case-law. Judicial decisions do not form precedent, nor are the judgments of higher courts formally binding on lower courts. Brazil has recently developed the notion of ‘binding enunciates’ (‘súmulas vinculantes’), according to which enunciates (‘súmulas’) of either the Superior Court of Justice (STJ) or the Supreme Federal Court may become binding on those courts themselves and all lower courts if adopted under certain conditions. These enunciates essentially crystallize well-settled case-law and work as useful guides to litigation. Several enunciates from these courts have a bearing on private international law matters.
Case-law plays an important role in elucidating the multiplicity of domestic and international instruments applicable to private international law issues. The scholarly construction of the ‘dialogue of sources’ (‘diálogo das fontes’) has been highly effective in offering guidance to judges in this respect, thereby enhancing the clarity and impact of case-law.
4. Role of doctrinal writing
The above discussion with respect to the dialogue of sources already indicates that scholars play a significant role in Brazil in the application of private international law. Prominent scholars in the area are often called upon to represent litigants in high-profile private international law cases, as well as serving as expert witnesses in leading cases.
More generally, Brazilian courts also have no hesitation in referring to scholarly writings, thus enhancing the visibility of the role and impact of doctrinal writings on the everyday application of private international law. Thus, even though they are not binding, scholarly writings are highly influential in Brazilian private international law.
II. History of private international law
As a former Portuguese colony, Brazil had a singular evolution compared to other countries of the Americas, in that it was more open to European doctrine, used to fill gaps and support decisions through the ‘Lei da Boa Razão of 1769’ and the usus modernus pandectarum of the civilized nations, and guided by notably innovative Brazilian jurists, such as Teixeira de Freitas.
Two factors have historically influenced the sparse application of foreign law (→Foreign law, application and ascertainment) in Brazil, in spite of the long-standing Philippines Ordinances, which in 1603 authorized the application of foreign law for wills (locus regit actum) and contracts (lex loci celebrations) signed abroad. The first factor is the Portuguese heritage. ‘Discovered’ in 1500, Brazil only gained independence in 1822, so that Portuguese law, which is notably formalist with unilateral rules, was in force for almost four centuries in the Brazilian territory, until the Civil Code of 1916 (DOU of 5 January 1916) laid down in its introductory articles specific rules on conflicts of laws in time and space. The strong Portuguese heritage which was ‘transplanted’ can be summarized in three words: continuity (of laws), formalism (strong influence of positivism and lex forism) and centralism (of powers and unity of the legal system). The second factor is the continental size of the Brazilian territory, associated with the need to integrate a number of immigrants, which led it to prioritize the application of the →lex fori.
The Commercial Code (published in the Laws Collection of the Empire of Brazil (henceforth CLBR) of 1850, T.11, pp 57–238) and the Regulation 737 (CLBR of 1850), both of 1850, still echoed the Portuguese unilateral rules, but the Consolidation of Laws of 1857, by Teixeira de Freitas, attempted to bilateralize rules, introducing connecting factors. In his ‘Draft of Civil Code’ of 1860, Teixeira de Freitas introduced a section systematizing the subject.
The Civil Code of 1916 opted for →nationality as the main →connecting factor, with an exception being upheld by successive Brazilian Constitutions (1934, DOU of 16 July 1934; 1937, DOU of 10 November 1937; 1946, DOU of 19 September 1946, republished in 25 September 1946 and 15 October 1946; 1967, DOU of 24 January 1967; 1969, DOU of 20 October 1969, republished in 30 October 1969; p. 11988, DOU 191-A of 5 October 1988) in favour of Brazilians in the case of →succession mortis causa (see below). The current LINDB introduced domicile (→Domicile, habitual residence and establishment) as the main connecting factor for private international law issues and excluded the provision allowing parties to choose the law applicable to international commercial contracts (art 9 LINDB). It contains rigid connecting factors and a number of obscure articles which deal with conflict of laws (arts 7–19). As noted above, Brazil is a party to a number of international conventions.
III. Administration of private international law
1. Special courts
There are no courts specialized in private international law in Brazil, except for the recognition and enforcement of foreign judgments (see below). Private international law matters are within the purview of ordinary civil courts, but can also fall under the purview of labour courts.
Typically, federal courts are more likely to be faced with matters of private international law than state courts, particularly with respect to matters of cooperation in judicial affairs.
Certain private international law matters, particularly cooperation in civil judicial matters, are also addressed primarily by non-judicial bodies such as the Public Attorney’s Office (‘Ministério Público’), but also by public notaries and diplomatic and consular officials.
More recently, Small Claim Federal Courts (‘Juizados Especiais Federais’) have also been equipped to deal with certain private international law matters.
2. Application and enforcement of foreign law
The LINDB requires courts and other authorities to make a determination as to whether the case before them involves a matter of private international law, and to apply ex officio the relevant rules on →choice of law contained in the LINDB. However, the parties in a case bear the burden of establishing the content of foreign law, which is somewhat cumbersome in Brazil. The foreign law presented to the court must be an authentic version of the relevant legislation, duly validated by a Brazilian consular authority in the jurisdiction from which the document originates, and if it is in a language other than Portuguese, it must be translated in full by a certified translator. In practice, this approach limits the use of foreign law as well as foreign materials more generally, which are subject to the same rule to the extent they are also evidence adduced in court (→Evidence, procurement of). Recent instruments, most notably the Hague Access to Justice Convention, are attempts at simplifying this procedure.
As far as non-judicial authorities are concerned, proof of foreign law and other foreign documents is made through validation by a Brazilian consular authority in the jurisdiction from which the invoked document originates. Without this validation, such documents cannot be considered valid in Brazil.
IV. Basic principles of private international law: jurisdiction
Articles 21–3 CPC establish the basic principles of jurisdiction under Brazilian law, thereby replacing art 12 LINDB, although this provision has never been officially revoked.
Under art 23 CPC, Brazilian courts have exclusive jurisdiction to deal with disputes related to immovable goods located in Brazil and for the succession mortis causa of goods situated in Brazil. Furthermore, the courts shall have exclusive jurisdiction to hear disputes involving the partition of any assets located in Brazil in the context of a divorce, judicial separation or dissolution of a de facto union, regardless of the parties’ domicile or nationality (→Divorce and personal separation). Exclusive jurisdiction prevents the recognition and enforcement of a foreign judgment or the enforcement of a clause indicating the competence of a foreign forum to deal with the subject matter covered by art 23 CPC.
Articles 21 and 22 CPC establish the situations where Brazilian courts may have concurrent jurisdiction with foreign courts. Under art 21 CPC, Brazilian courts shall have concurrent jurisdiction: (i) when the defendant is domiciled in Brazil, regardless of his nationality; (ii) when the obligation has to be performed in Brazil; and (iii) when the claim is based upon a fact or an act that took place in Brazil. As per art 22(3) CPC, parties may also validly submit a dispute to Brazilian courts. Articles 22(1) and 22(2) CPC relate to specific situations in the p. 1context of family law and consumer law, which are dealt with in the corresponding specific sections below. Brazilian courts will be competent to hear cases covered by arts 21–22 CPC, even if the same case is pending before a foreign court. In that sense, art 24 CPC clarifies that international litis pendens is not to be taken into consideration under Brazilian law, unless there is a valid treaty providing otherwise. However, if a final foreign judgment dealing with a case that is covered by arts 21–2 CPC is rendered, it can be recognized and enforced in Brazil, provided that no final judgment has already been rendered by a Brazilian court.
Under art 25 CPC, choice-of-forum clauses establishing the exclusive competence of a foreign court to judge a case will be valid and will prevent Brazilian courts from hearing such disputes, as long as they do not fall under the hypothesis of exclusive jurisdiction indicated in art 23 CPC. In the same sense, according to Enunciate No 335 (Enunciate of the Predominant Case-Law of the Federal Supreme Court – Annex to the Internal Rules of Procedure (‘Súmula da Jurisprudência Predominante do Supremo Tribunal Federal – Anexo ao Regimento Interno’, National Press 1964, p 147) of the Federal Supreme Court: ‘Choice of forum clauses are valid for claims based on contracts.’ Article 63(1) CPC requires the choice-of-a-foreign-forum clause to be in writing. Article 63(3) CPC further allows courts to ex officio disregard a choice-of-forum clause deemed to be abusive. The current art 25 CPC, introduced into Brazilian law through the revised version of the CPC, clarified the validity of choice-of-foreign-forum clauses, which under the previous CPC was uncertain.
Under the new version of the CPC, it is still uncertain whether Brazilian courts will have jurisdiction over cases falling outside the scope of arts 21–3 CPC. Under the previous CPC, there were two different views. According to the first view, arts 21–3 represent the sole basis of jurisdiction for Brazilian courts, so that any case not contemplated under these articles should not be heard (see Rio Grande do Sul Court of Appeals (TJRS) Civil Appeal No 70006888606, under the previous CPC). The second view acknowledges that Brazilian courts may under certain circumstances have competence to hear cases falling outside the scope of arts 21–3 CPC. When examining whether to hear a case, the courts must evaluate the interest of Brazilian judicial authority in judging the case, the enforceability of a resulting award and, in some cases, the agreement of the parties involved in having the case judged by the Brazilian judiciary (Superior Court of Justice (STJ), Ordinary Appeal (RO) No 64, also under the previous CPC). Furthermore, some Brazilian courts have upheld competence to hear the divorce claim of a Brazilian resident against the spouse residing abroad (TJRS Civil Appeal No 70001547918) – a situation outside the scope of art 88 of the previous CPC.
Any claimant not residing in Brazil (Brazilian or foreigner) intending to commence legal proceedings in Brazilian courts must provide security to guarantee the attorney fees and costs of the proceedings (arts 83/84 CPC). An exemption from providing security is found in art 4 of the Protocol of Las Leñas regarding parties resident in MERCOSUR, in art 9 of the UN Maintenance Convention 1956 (United Nations Convention of 20 June 1956 on the recovery abroad of maintenance, 268 UNTS 3 and 649 UNTS 330) and in bilateral treaties signed with France, Italy, Spain, Argentina and Uruguay.
The basic principles of jurisdiction established in arts 21–3 CPC apply in all areas, unless there are special provisions providing different criteria. The following sections address these specific norms.
Article 651 of the Consolidation of Labour Laws (‘Consolidação das Leis de Trabalho’, DOU of 9 August 1943) establishes that labour law disputes must be exclusively judged by the courts of the place where the employee has provided services.
According to art 22(II) CPC, Brazilian courts shall have jurisdiction to hear consumer disputes, provided that the consumer has its domicile or residence in Brazil. Following the same approach, art 101(I) of the Consumer Code (‘Código de Defesa do Consumidor’ – Law No 8.078/1990, DOU of 12 September 1990) determines that the forum of the consumer’s domicile is competent to hear claims against providers for their liability regarding services and goods provided, also in international cases, for instance, when a Brazilian consumer buys a defective good from abroad (see Superior Court of Justice (STJ), Special Appeal (REsp) No 63.981).
In terms of the scope of MERCOSUR, the Protocol of Buenos Aires has special rules on jurisdiction and the choice of competent forum by the parties.
p. 1Article 7 of the San Luis Protocol (MERCOSUR San Luis Protocol of 25 June 1996 in matters of liability in traffic accidents, MERCOSUR/CMC/DEC No 1/96, available at <www.mercosur.int/msweb/Normas/normas_web/Decisiones/ES/Dec_001_096.PDF>) has a special provision on jurisdiction for traffic accidents in MERCOSUR.
Article 23 CPC establishes the exclusive competence of Brazilian courts to deal with claims involving immovable goods located in Brazil.
In regard to insolvency matters, art 3 of the Insolvency Law (Law No 11.101, DOU of 9 February 2005) stipulates that the forum of the principal place of business or, in the case of companies with their seat outside Brazil, the forum of a subsidiary of the company will have jurisdiction to recognize or approve proceedings for both extrajudicial and judicial recovery of the company and to declare insolvency (→Insolvency, applicable law; →Insolvency, cooperation and recognition).
3. Intellectual property
The →territoriality principle applies to intellectual property as an indirect result of the national treatment principle (art 2 of the Paris Industrial Property Convention (Paris Convention for the Protection of Industrial Property, 20 March 1883, with later amendments, 828 UNTS 305), art 5(1) of the Berne Convention (Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, completed at Paris on 4 May 1896, revised at Berlin on 13 November 1908, completed at Berne on 20 March 1914, revised at Rome on 2 June 1928, revised at Brussels on 26 June 1948, revised at Stockholm on 14 July 1967 and revised at Paris on 24 July 1971, 1161 UNTS 3 and amended in 1979 Treaty Doc No 99-27, and 1985, 828 UNTS 221)) and is accepted under Brazilian law as indicating that the jurisdiction regarding intellectual property disputes will be that of the place where protection was originally granted. Furthermore, art 2 of Law No 5.648 (DOU of 14 December 1970) sets out the competence of the National Institute of Intellectual Property (‘Instituto Nacional de Propriedade Intelectual’) to enforce intellectual property rules in Brazil.
4. Family matters
According to art 22(I) CPC, Brazilian courts are competent to decide cases regarding →maintenance obligations provided that the creditor of such obligations is domiciled or resident in Brazil or provided that the debtor has ties with Brazil, such as property or possession of assets in the Brazilian territory, or receives personal income or any economic benefit in the country.
Brazil is a party to the UN Maintenance Convention 1956 and to the Inter-American Support Obligations Convention (Inter-American Convention on Support Obligations of 15 July 1989, 29 ILM 73), establishing a mechanism for cooperation between countries for the enforcement of awards on maintenance support for children and determining the competent courts for that purpose. In the field of →child abduction, Brazil is a party to the Hague Child Abduction Convention and to the Inter-American Return of Children Convention (Inter-American Convention on International Return of Children of 15 July 1989, OAS, Treaty Series, No 70; 19 ILM 63), and in the field of adoption to the Hague Adoption Convention.
Article 18 LINDB authorizes a Brazilian consular agent established abroad to perform the →marriage, the judicial separation and the divorce of Brazilian citizens in another country, subject to certain conditions. Reciprocally, the marriage of foreigners may be validly celebrated in Brazil before a diplomatic or consular official of the country of nationality of both parties pursuant to art 7(2) LINDB.
5. Inheritance matters
Article 23 CPC establishes the exclusive competence of Brazilian courts to hear the proceedings related to →succession causa mortis of assets located in Brazil, even if the deceased person is a foreigner and was resident abroad. Conversely, succession regarding immovable goods located abroad cannot be judged by Brazilian courts (Superior Court of Justice (STJ), Special Appeal (Resp) No 397.769). As a result, it is accepted that a single succession may be judged by different courts regarding distinct assets.
The sole paragraph of art 21 CPC clarifies, for the purpose of determining the applicability to p. 1→companies of the rule of jurisdiction in art 21(I) CPC, that legal persons will be deemed to be domiciled in Brazil if they have an agency, subsidiary or branch in Brazil.
V. Basic principles of private international law: choice of law
Procedural matters are subject to the →lex fori (art 314 Bustamante Code). →Classification of the conflict rules is also made in accordance with the lex fori, according to the majority of commentators and case-law. However, according to the black-letter law and a minority of commentators, property (art 8 LINDB, chapeau) and obligations (art 9 LINDB, chapeau) are to be qualified by the lex causae. Under art 16 LINDB, any reference to a foreign law will relate directly to the substantive law, excluding any form of →renvoi. Under art 17 LINDB, any law, legal act or foreign judgment violating →public policy will be invalid in Brazil. Article 6 of the Inter-American Private International Law Convention contains a general rule on fraus legis (→Evasion of laws (fraus legis)), which is broadly accepted by Brazilian doctrine and case-law. In the case of both a violation of public policy and fraus legis, the lex fori will apply.
Obligations in general, comprising both →torts and contracts, are subject to art 9 LINDB, which states that they are governed by the law of the country in which they are constituted. Regarding torts, the application of the law of where the alleged tort was committed (lex loci delicti) is widely accepted, with flexibility assured in certain areas by international conventions (eg the Vienna Nuclear Liability Convention (Vienna Convention on civil liability for nuclear damage of 21 May 1963, 1063 UNTS 265) and the San Luis Protocol (MERCOSUR San Luis Protocol of 25 June 1996 in matters of liability for traffic accidents, MERCOSUR/CMC/DEC No 1/96, available at <www.mercosur.int/msweb/Normas/normas_web/Decisiones/ES/Dec_001_096.PDF>)).
Regarding international contracts, the chapeau of art 9 indicates application of the law of the place of contracting or where the contract was concluded (locus contractus). While a minority of scholars consider that the chapeau of art 9 indicates application of the ‘law where the contract was performed’, the majority view is that the loci contractus is the place where the contract was concluded.
Article 9(2) LINDB applies to contracts inter absentes, clarifying that the ‘law of the constitution of the contract’ is the law of the offeror’s residence. The offeror of an international contract is determined by arts 431 and 435 of the Brazilian Civil Code (Código Civil, henceforth CC, DOU of 11 January 2002), with lawyers certifying the date of signature of the contract or including a statement in the preamble clarifying who is the offeror of the final accepted version. Residence is regulated in arts 71 CC et seq.
Article 9(1) LINDB deals with the law applicable to the form of the contract, prescribing the rule locus regit actum, but only for contracts to be performed in Brazil.
Article 9 LINDB imposes a rigid connecting factor (loci contractus) to →contractual obligations, interpreted in case-law as preventing the parties from making a valid choice of the applicable law (Federal Supreme Court (STF), Extraordinary Appeal (RE) No 93.131). The exception is when such choice is contained in an arbitration clause (see below). For international consumer contracts, the Consumer Code is applied as a mandatory norm. The CISG entered into force in Brazil in 2014.
According to art 8 LINDB, property rights are governed by the law of the place where the property is located (lex rei sitae). This rule applies both to movable and immovable goods. The law of the situs governs possession, what can be considered a property right, the transfer and loss of ownership, as well as related proprietary rights and restrictions to them (→Property and proprietary rights). However, art 8 provides for two exceptions to this general principle.
First, art 8(1) determines that movable goods in transit are governed by the law of the domicile of the owner of the goods, irrespective of the place where the goods are located. Second, art 8(2) establishes that a pledge will be governed by the law of the domicile of the person holding direct possession over the secured goods. While in most situations the creditor holds direct custody of the pledged goods, as the transfer of possession is a general requirement for the pledge to be valid, there are exceptional cases where the debtor might remain in possession of p. 1the pledged goods (see non-possessory pledges in art 1431 CC). A further exception to the general rule refers to planes and vessels, which are considered special goods and are governed by the law of their →flag or matriculation (arts 274–84 Bustamante Code). Regarding cultural objects, Brazil is a party to the UNIDROIT Convention on Stolen Cultural Objects.
3. Intellectual property
As a general principle, lex loci protectionis governs both industrial property rights and copyrights. According to art 5 of the Industrial Property Law (Law No 9.279, DOU of 15 May 1996), industrial property rights are considered movable goods. As a result, art 8 LINDB applies and subjects industrial property rights to the law of the place where they are located. According to art 108 of the Bustamante Code, industrial property rights are deemed to be located at the place where they were officially registered, resulting in the application of lex loci protectionis. Furthermore, it is important to note that Brazil has statutes both on copyright (Law No 9610, DOU of 20 February 1998) and software (Law No 9069, DOU of 30 June 1995), which are also subject to the general rules on copyright (see Superior Court of Justice (STJ), Special Appeal (Resp) No 443.119/RJ). The applicable law for copyrights is determined in art 5(2) of the Berne Convention, ratified by Brazil, ie that of ‘the country where protection is claimed’, a guideline mirrored in art 115 of the Bustamante Code, except for cases where there are special international conventions regulating the subject differently.
4. Family matters
Family matters are broadly regulated by art 7 LINDB, which in its chapeau states that the law of domicile (→Domicile, habitual residence and establishment) will govern personal statute and family rights. Filiation and →adoption fall under the scope of the chapeau of art 7 LINDB and are subject to the law of the child’s domicile. Under art 7(7) LINDB, the child’s domicile is presumed to be that of the legal guardian.
The various sub-sections of art 7 LINDB provide specific rules for various aspects of family law that may deviate from its chapeau, especially regarding →marriage and de facto unions.
Article 7(1) LINDB presents a unilateral rule determining that a marriage performed in Brazil will be governed by Brazilian law, which is normally bilateralized (locus regit actum). Formalities, issues of capacity to marry and impediments to the marriage performed in Brazil are subject to Brazilian law, irrespective of whether the spouses have domicile in Brazil. If one of the spouses has previously obtained a divorce abroad, the foreign award granting the divorce must be recognized in Brazil as a precondition for the performance of the new marriage (→Divorce and personal separation).
The personal effects of marriage, such as the right to the family name, the establishment of the domicile of the married couple and the qualification of the spouse as an heir fall under the chapeau of art 7 LINDB and thus are governed by the law of the domicile of the married couple.
Marital regimes of property, as established in art 7(4) LINDB, are regulated by the law of domicile of the spouses before their marriage or, if they had different domiciles, by the law of their first common domicile. Traditionally under Brazilian law, the regime of property once set was unchangeable. Article 7(5) LINDB was the sole exception, allowing the married foreigner who becomes a naturalized Brazilian to adopt, with the express consent of the spouse, the standard legal regime of partial community of property under Brazilian law (‘comunhão parcial de bens’). However, the 2002 Civil Code introduced provisions allowing the parties expressly to agree on the change of the regime of property, even if the applicable foreign law stipulated the immutability of the regime. This opened up the possibility for the applicable law to change. Where the property regime is established through a pre-marital agreement, the law of the domicile of the married couple also applies to the substance of the act of marriage, while the principle of locus regit actum governs the form of the agreement.
Assets located in Brazil and acquired through common effort of the spouses should be shared between them, irrespective of the applicable property regime. If there is evidence that there was a common effort to acquire the patrimony located in Brazil, its division between the spouses should be observed so as to avoid →unjust enrichment (Enunciate 377 of the Federal Supreme Court (STF), Gazette of the Federal Supreme Court (Diário da Justiça do Supremo Tribunal Federal) of 12 May 1964, p p. 11277; Superior Court of Justice (STJ), Special Appeal (Resp) No 123.633).
Regarding the determination of the domicile of the married couple, art 7(7) LINDB requiring extension of the husband’s personal law to his wife should be disregarded. This provision contravenes art 226 §5 of the Brazilian Constitution enshrining equality of rights and duties between spouses. Rather, the first criterion to ascertain domicile of the married couple is the spouses’ declaration on the location of their domicile as expressed in their marriage certificate. Where they have declared to be domiciled in different places, they may later make a joint declaration as to their first marital domicile, which will be considered for the purposes of private international law (ie art 7(4) LINDB). Children and other persons without a domicile are deemed to be domiciled in their place of residence or in the place where they are located (art 7(8) LINDB).
Article 7(3) LINDB establishes that the dissolution of marriage by annulment is governed by the law of the spouses’ domicile. This rule has been widely criticized by commentators, and the Federal Supreme Court ruled in an ancient case that the annulment of marriage should be examined by the same law governing its performance (Federal Supreme Court (STF) Foreign Sentence (SE) No 2085). The recognition of a foreign divorce on Brazil is conditional upon recognition by the STJ, whereas if one or both of the spouses are Brazilian, recognition is granted only after expiration of the term of one year (art 7(6) LINDB).
With no specific rules extant, maintenance obligations are considered subject to the law of the claimant’s domicile under the chapeau of art 7 LINDB. The Inter-American Support Obligations Convention applies at the Inter-American level and determines the application of the law most favourable to the claimant between the law either of the creditor’s or of the debtor’s domicile or habitual residence (→Domicile, habitual residence and establishment).
5. Inheritance matters
The →succession mortis causa is subject to the law of the domicile of the deceased party at the time of death, irrespective of the nature and location of the property involved, as established by art 10 LINDB. Article 10(1) LINDB creates an exception to this rule, mirrored in art V, XXXI of the Brazilian Constitution, under which if the deceased foreign person had property in Brazil and his spouse and/or children are Brazilian, then Brazilian law applies regarding succession of these assets, unless the foreign law is more beneficial to the Brazilian spouse and children, in which case that law applies. This favourable rule only benefits a Brazilian legitimate spouse, not an unmarried partner. This protective rule extends to couples who live under de facto heterosexual unions (‘união estável’) as well as to same-sex unions, which are both equated to traditional marriage under art 226 of the Brazilian Constitution (see Federal Supreme Court (STF) Extraordinary Appeal (RE) No 477.554). The principle of equality among children (art 227 §6 Brazilian Constitution) prevents discrimination regarding their names or rights and requires the favor brasiliens rule to benefit all children equally. Article 10(2) LINDB determines that the capacity of the heir or legatee to succeed will be governed according to the law of their domicile. Article 10(2) LINDB does not conflict with the law applicable to the succession, as while the latter determines the identity of the heir in a succession, the former regulates the issue of capacity to receive the inheritance. Regarding foreign wills, the Federal Supreme Court considered that locus regit actum governs their formalities (Federal Supreme Court (STF), Extraordinary Appeal (RE) No 68.157). Under Brazilian law, connective wills are forbidden (art 1863 CC) and a will executed by a testator without awareness of the existence of other necessary heirs, such as additional children, will be nullified (art 1974 CC).
Legal entities are governed by the law of their place of incorporation (art 11 LINDB). The law of incorporation regulates the creation, termination, representation, capacity and operation of →companies. The sole fact that an entity was incorporated outside Brazil suffices to classify it as a foreign legal entity. However, in order to be considered a Brazilian legal entity, it must both have been incorporated and have the seat of its administration in Brazil (art 1.126 CC). The legal personality of foreign legal entities is automatically recognized in Brazil, provided they are properly constituted companies in their place of incorporation. However, according to art 11(1) LINDB, a subsidiary, branch or agency of a foreign legal entity requires a p. 1previous governmental authorization to operate in Brazil and will be subject to Brazilian laws (see arts 1.134 and 1.137 CC). Brazilian legislation further establishes restrictions for the participation of foreign capital in corporations operating in strategic areas in Brazil (such as media companies – see the Annex of the Normative Instruction DNRC 81, DOU of 7 January 1999). Foreign governments or organizations with public powers cannot acquire immovable goods in Brazil or goods that are subject to →expropriation (art 11(2) LINDB), except regarding buildings acquired for diplomatic or consular representatives (art 11(3) LINDB; Law No 4.331, DOU of 4 June 1964). The subject is also regulated by the Inter-American Juridical Persons Convention and by the Inter-American Commercial Companies Convention, to which Brazil is a party.
VI. Basic principles of private international law: recognition and enforcement
The recognition and enforcement of foreign judgments and arbitral awards is the prerogative of the STJ. The requirements for recognition and enforcement of foreign judgments under Brazilian law are set out in art 963 CPC, art 15 LINDB and arts 5 and 9 of Resolution 9. For a foreign judgment to produce any effect in Brazil, including the effects of declaratory awards, it must undergo a recognition and enforcement procedure before the STJ. The exception, enshrined in art 961(5) CPC, is the foreign decision of consensual divorce, which does not depend upon recognition and enforcement by the STJ to produce effects in Brazil. The STJ can rely on limited grounds to deny exequatur to a foreign judgment: (i) it must have been rendered by a competent judge; (ii) the defendant must have been properly served or his default of appearance must have been declared; (iii) the judgment must be final and effective in the country of origin; (iv) the judgment must be authenticated by the Brazilian Consulate in the place where the judgment was rendered, as well as officially translated; and (v) the judgment may not contravene public policy or res judicata. Articles 26 and 27 CPC contain specific rules on international cooperation. Articles 28–34 CPC contain rules on mutual legal assistance. Within the scope of MERCOSUR, the Protocol of Las Leñas contains rules establishing an expedited mechanism of international cooperation for the recognition and enforcement of awards. Foreign interim measures are also enforceable in Brazil under art 962 CPC and art 7 of Resolution 9. Their enforcement must be requested before the STJ in the form of a letter rogatory and will be granted provided they fulfil the formal requirements (→Formal requirements and validity) and do not contravene public policy. In recent years, the STJ granted exequatur to several foreign interim measures, particularly for the freezing of assets (Superior Court of Justice (STJ) Rogatory letter (CR) No 2260). Rogatory letters are governed by the Inter-American Rogatory Letters Convention and its Additional Protocol, and the Protocol of Las Leñas (MERCOSUR).
Although arbitration has long been known in Brazil, it was not until the modernization of the arbitration system with the enactment of the Brazilian Arbitration Act (Law No 9307, DOU of 24 September 1996) that it started to spread in the country as a means for both national and international dispute resolution. In 2001, the Federal Supreme Court dismissed challenges as to the validity of the statute and affirmed the constitutionality of the Arbitration Act (see STF SE 5206). The New York Convention was ratified in 2002. Brazil is also a party to regional conventions containing rules on international arbitration, such as the Inter-American Arbitration Convention and the MERCOSUR Protocol of Las Leñas. In recent years, the STJ recognized and enforced several foreign arbitral awards, in accordance with the spirit of the New York Convention, thereby consolidating the use of arbitration in Brazil.
Article 4(2) of the Arbitration Act establishes a formal validity requirement for arbitration clauses inserted into adhesion contracts. According to this requirement, the arbitral clause must be typed in boldface or initialled, there must be a separate arbitration agreement signed by the parties or the adherent must initiate the arbitration. However, at the time of writing, judicial interpretation of this provision indicates that the lack of these requirements would not prevent the recognition of foreign arbitral awards and that the requirements apply only to domestic arbitration.
Article 2 of the Arbitration Act allows the parties to select the applicable law (law, equity, general principles of law or uses of commerce) p. 1to the substance of the dispute to be arbitrated, which contrasts with the impossibility of choosing the applicable law to disputes to be solved by the Brazilian judiciary.
According to art 102(I)(h) of the Brazilian Constitution, proceedings for the recognition and enforcement of foreign arbitral awards in Brazil must be initiated before the STJ. Under the sole paragraph of art 34 of the Arbitration Act, an arbitral award will be considered as foreign if it is ‘made outside of the national territory’ (Superior Court of Justice (STJ), Special Appeal (REsp) No 1.231.554). Thus, arbitral awards issued in Brazil will be considered Brazilian, even if the parties and the applicable law are foreign. Brazilian arbitral awards are considered as equivalent to judicial decisions and require no additional proceedings for recognition and enforcement.
Articles 38 and 39 of the Arbitration Act reflect art V(I) and art V(II) of the New York Convention, establishing limited grounds on which the recognition and enforcement of foreign arbitral awards can be denied.
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