Brazilian Superior Court of Justice Recognizes the Validity of the Service of Process by Mailing for the Purpose of Judgment Enforcement in Brazil

PThe Superior Court Justice, highest Brazilian court for infra-constitutional matters,  held an emblematic decision disregarding, for the recognition and enforcement of a foreign decision in Brazil, the requirement of service of process by rogatory letter upon Brazilian defendant. In such case, it was recognized that service of process could be effected by mailing, exactly how agreed by the parties.

In its defense, the Brazilian company alleged that have not been served by rogatory letter in the action heard before the City of New York, in which the default judgment was granted, presenting many precedents from the Special Court on this matter.

At the trial, the superior court recognized that, distinctly from the other cases and despite the previous comprehension of the Court, in this specific case, the Jurisdiction clause, freely agreed between the parties, that stipulated that service of process in any actions arising from the agreement could be effected by mailing, should be binding.

In this sense, considering the national company was served by Federal Express with return receipt, the Court recognized that the requirement of “regularity of the service of process” was fulfilled, either the under the Brazilian laws or the laws of The State of New York (elected by the parties to govern the agreement). Therefore, the New York’s Court decision was made enforceable.

It was a case of distinguishing, in which the adjustment between the parties regarding the service process was honored, relativizing the Court’s understanding until then.

In its decision, the Reporting Judged Maria Thereza de Assis Moura pointed out that “the relativization of the writ of summons by mail is in harmony with the law in force in the State where the decision was issued and also in accordance with agreement. Thus, the service of process cannot be considered invalid on the pretext of disregarding the Brazilian rule. Reasonable, so, the flexibilization, in this case, of the requirement of a rogatory letter”.

The decision is relevant and values the autonomy of the will in international relationships, reflected in agreements between national and foreigners.