Originally from World Arbitration And Mediation Review (WAMR)

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RECENT PRECEDENTS IN BRAZIL

REGARDING SERVICE OF PROCESS IN
INTERNATIONAL ARBITRATIONS
By Joaquim de Paiva Muniz
 

The Brazilian rules of civil procedure require that international service
of process on any party located in Brazil be subject to the intricate
formalities of letters rogatory (carta rogatória). Accordingly, the Supreme
Court frequently denied exequatur of foreign awards when the Brazilian
party had not been served through a letter rogatory.1
To avoid the letter rogatory requirement in international arbitrations, the
Brazilian Arbitration Law of 1996 specifically allowed parties to receive
notice according to the rules set forth in the arbitration agreement, in the
applicable arbitration rules, or according to the procedural law of the seat of
arbitration.2 Postal notice is expressly authorized, provided that there is
proof of receipt and the Brazilian party is granted sufficient time to present
its defense.
Regardless of the clear content of this legal provision, it is not unusual
for a party to raise the issue of improper service of the process to challenge
the exequatur to a foreign arbitration award. Brazilian court precedents,
however, have sustained the legality of service by means other than letter
rogatory, if authorized in the arbitration agreement or the applicable
arbitration rules. For instance, in the recent precedent UEG vs. Multipole3
and Bouvery International vs. Irmãos Pereira,4 the Superior Court of Justice
accepted the service of the parties by postal notice and even by facsimile, in
light of evidence that such parties did receive the notices and became aware
of the arbitration. Those decisions acknowledge that the issue of service of
process should not be regarded as just a formality, but rather as a matter
related to the right of full defense.
On the issue of service of process, it is worth mentioning Subway v.
HTP5, which must be distinguished from the precedents above. In that case,