Homologation of foreign judgment

The process of homologation of a foreign judgment in Brazil is a process that raises many doubts. In general, the interested party must ratify the foreign judgment for it to take effect in Brazilian territory.

In this article, we will provide complete information on how the process of Homologation of a foreign Judgment works in Brazil. In addition, we will analyze the requirements for homologation to occur and its effects.

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Author: Lucas Velozo de Mello Marchiori

What is the Homologation of a Foreign Judgment?

First, we will analyze the Foreign Judgment Approval process and understand its purpose.

In this context, a foreign sentence is a judicial sentence that was handed down abroad, but which seeks to produce its effects in the Brazilian territory. For this sentence to be able to generate effects in Brazil, it needs to go through this approval process.

The competence to analyze the homologation request currently belongs to the Superior Court of Justice. Therefore, the approval process is not something simple and immediate.

This analysis by the STJ does not analyze the merits but verifies compliance with six main requirements. The Code of Civil Procedure defines these requirements for a foreign judgment to be valid in the country.

We will now analyze what these requirements are.

What are the six requirements for the Homologation of a Foreign Judgment in Brazil?

Brazilian law establishes six essential requirements for a Foreign Judgment to be ratified in Brazil.

The first requirement listed is about the competent authority. The STJ will analyze whether the country in which the sentence was handed down was competent for the case. This analysis intends to verify if the sentence should not have been handed down in Brazil since it will produce effects here.

Article 964 of the CCP expressly provides:

“A foreign decision will not be ratified in the event of exclusive competence of the Brazilian judicial authority”.

The second requirement will be a regular citation. It means to say that the citation is also an essential element for the validation of the foreign sentence.

The foreign decision must be preceded by a regular citation, even if the defendant is absent in the process. That is, it must be demonstrated that the defendant was duly summoned, even if he did not participate directly in the process.

The third requirement is about effectiveness in the home country. The third item of art. 963/CCP determines that it will be essential that the foreign judgment be “effective in the country where it was issued”.

The STJ’s current understanding is that it is not necessary for the decision to become final and unappealable, but for the decision to be effective. That is, the decision must be capable of producing its effects.

The fourth requirement is the non-offense to the Brazilian res judicata. Res judicata means the repetition of an action that has already been decided by a sentence, which cannot be appealed.

It is important to emphasize that the existence of an ongoing lawsuit in Brazil does not prevent the ratification of a foreign judgment on the same situation.

Sworn translator

In turn, the fifth requirement involves the official translation of the foreign judgment. A sworn translator in Brazil must translate the sentence.

The sworn translator must pass a public tender and be registered with the Board of Trade of the state in which he works. If you want more details about sworn translation, access our article. 

Finally, the last requirement is that foreign judgment must not offend national public policy. This is a very subjective requirement, which will be subject to direct interpretation by the Superior Court of Justice.

The general understanding is that public order is related to respect for fundamental rights and guarantees for the good and regular functioning of society. The STJ provides that the foreign judgment to be ratified in the country must be in accordance not only with national public order but necessarily also with the principle of human dignity and with Brazilian sovereignty.

In summary, the requirements for the approval of the foreign judgment are:

• Competent authority;
• Regular citation;
• Effectiveness in the country of origin;
• Do not offend Brazilian res judicata;
• Sworn translation;
• No offense to public order.

What is the Foreign Judgment Approval process like?

As we saw earlier, the competence to analyze the request for approval rests with the Superior Court of Justice. The lawyer, representing the applicant, will petition before the STJ.

It will be necessary to propose an electronic initial petition by the applicant addressed to the current president of the Superior Court of Justice.

The request must contain the original decision, or its certified copy, in addition to other documents considered indispensable. The applicant must arrange for a sworn translation of all documents that are not in Portuguese. In addition, it will be necessary to pay costs when filing the action for admission.

If so, the interested party must present its defense within 15 days of the summons. The Special Court will hear the case after the answer is received.

Once the foreign judgment has been ratified, it will not have enforceable force by itself. That is, the effects of the sentence will not take effect automatically.

The interested party will request compliance with the foreign judgment with the competent federal court. The party will have to comply with the terms of the common procedure for the enforcement of a national decision.

In which cases will the foreign judgment not have to be ratified to produce effects in Brazil?

There are exceptions in which the foreign judgment does not need to be ratified to produce effects in Brazilian territory. These exceptions are mostly related to treaties and international agreements that Brazil makes with other countries.

However, there are exceptions provided for in Brazilian legislation itself. For example, the law provides that the foreign judgment of consensual divorce takes effect in Brazil, regardless of ratification by the STJ.

One of the most relevant exceptions concerns Mercosur. The recognition and enforcement of judgments and arbitral awards between the founding States of Mercosur is simplified.

The founding members of MERCOSUR, Brazil, Argentina, Paraguay, and Uruguay.

There is no complete exemption from the process of homologation of foreign judgments from the founding States of Mercosur. However, there is a more simplified procedure, identical to that applied in the case of rogatory letters.