They’ve got a lot of coffee in Brazil, according a certain Mr. F. A. S. of Hoboken. It is a land of wonder and beauty and mystery and a culture all its own, not to mention home to one of the greatest athletes* ever. Not quite like its Spanish-speaking neighbors, Brazil is a former colony of Portugal—and the only country in South America to use Portuguese as its official language. They also throw the most massive pre-Lenten party on the planet (Rio’s Carnival), an event that makes Mardi Gras in New Orleans seem like afternoon tea at Balmoral. And while Brazil’s political environment remains awash in corruption and mired in scandal, its judiciary has become relatively stable and respected. Indeed, over the past several years, Brazil’s courts have undertaken a concerted effort to become more transparent. Serving process in Brazil, while complicated, is neither the labyrinthine undertaking nor lost cause that it may once have been.
Brazil is a civil law jurisdiction, like the lion’s share of the non-English-speaking world. Service is a prerogative of the courts and, as such, cannot be legally performed by a private detective or process server as we know them in the common law (they don’t exist). U.S. and Canadian litigants have three options when serving in Brazil, but unlike most of North America’s other major trading partners, it is not party to the Hague Service Convention. As such, choosing a method is not quite as simple as in the United Kingdom or Italy.
Service of U.S. or Canadian process can be effected (1) by mail, if permissible under forum court rules, (2) by Letter Rogatory, or (3) via local counsel. In all cases, enforcement of a judgment must be kept in mind– and it is in that light that I recommend Door #3 for just about all cases. Addressing each in turn:
- Mail: Most U.S. courts, where service is allowable by mail to begin with, allow mail service on foreign defendants only where it is not prohibited by the rules of the foreign jurisdiction. Brazil’s Rules of Court do not specifically prohibit mail service, but they really don’t authorize it either. As such, it’s all but assured that a later attempt to enforce a judgment there will be rejected. I recommend against mail service except in very limited circumstances anyway– even if it stands on solid legal ground, it’s a bad idea from a factual perspective.
- Letter Rogatory: an official request from the forum court for judicial assistance from a Brazilian court. Costly and time consuming, this instrument really isn’t all it’s cracked up to be (see here for elaboration on what it is). Fortunately, Brazil is party to the Inter-American Convention on Letters Rogatory and Additional Protocol,** so the State Department’s $2,275 fee to convey the thing is avoided. It also doesn’t take the form of a traditional Letter; it amounts to a series of request forms. But the documents involved must still be legalized and translated, the request has to be signed by the judge hearing the case, and it will take the Brazilian courts the better part of a year (not a typo) to return proof of service.
- Local Counsel: Potentially costly, but not dramatically more than a Letter Rogatory, and certainly on a more solid legal footing than mail. A Brazilian advogado (Portuguese for attorney, as one might expect) can ensure that local rules are followed, thus ensuring that the manner of service will not give a court cause to reject an enforcement action later. The advogado petitions a local court to assign the service to a court officer (akin to a common law bailiff or sheriff’s deputy), and then the advogado ensures that the officer gets the job done. Not quickly, but done, if at all possible.
Above all, don’t despair over whether it can be done in Brazil. Yes, it can. It just takes a little forethought (what doesn’t?), a willingness to commit resources, and a bit of patience.
* A hat tip to the only soccer player I ever knew existed in my youth (other than his teammates, Nigel Powers and Judge Dredd). Great enough that just two syllables suffice, I give you… Pelé .
** Sorry, Canada. Brazil is in the treaty, but you’re not, so the standard Letter Rogatory procedure applies.