Serving Process in Brazil: Nascent Use of the Hague Convention on the Service Abroad of Documents in Civil or Commercial Matters
On March 21, 2019, Brazil, through a presidential decree, perfected accession to the Hague Service Convention for serving process and other documents (HSC),[1] effective June 1, 2019.[2] Due to reservations Brazil formally declared, many of the advantages with serving process pursuant to the HSC will be attenuated.[3] This article, in conjunction with a previous article,[4] explores some of the advantages and disadvantages with some practical and critical tips. In the final analysis, the HSC in Brazil will add value through the reduction in time and resources, especially since the HSC has eliminated the need for an additional layer of processing by the Brazilian Ministry of Foreign Affairs. However, the savings so far have been somewhat marginal. Therefore, there is still considerable risk in perfecting service of targets in Brazil, and plaintiffs[5] should be well-prepared and advised via counsel in initiating any transnational litigation.
The HSC was formulated at the 10th Session of the Hague Conference on Private International Law in 1964.[6] The United States became a member in 1967 when the U.S. Senate ratified the HSC after President Johnson submitted a formal message thereto.[7] Currently, there are 85 contracting states or members to the HSC.[8] Notable members include Australia, Canada, China (People’s Republic of), France, Germany, Israel, Japan, South Korea, and now, Brazil.[9]
Even with the HSC, serving any document, including process in a foreign country, can be a daunting task. To understand why, one must first understand a few of the substantive articles contained in the HSC, whose raison d’être is for effecting service of process or other documents in civil or commercial matters abroad without the need for consular or diplomatic channels.[10] By definition, the HSC covers only civil and commercial matters, not criminal matters. Additionally, the HSC is activated only if an address for a target is known.[11] The HSC does not affect service related to, for example, arbitration proceedings.[12]
The principal, but not exclusive, method of service provided by the HSC is the transmission of documents through a central authority, which every member must designate.[13] Only those individuals authorized, i.e., a competent applicant, to forward a request[14] to a central authority of a receiving member may do so.[15] The request must identify how the documents[16] are served: 1) pursuant to a receiving member’s internal law; 2) a method requested by the applicant (so long as it is not incompatible with a receiving member’s internal law); or 3) acceptance by the target.[17] After submission, service then hopefully and timely occurs.[18] Proof of service (via the certificate submitted with the request) is then made.[19]
Unless a receiving member has opposed, articles 8-10 provide for additional methods of service:
• Art. 8: permitting service using diplomatic or consular agents;
• Art. 9: permitting service indirectly through diplomatic and consular agents rather than through the Central Authority (e.g., via letter rogatory, carta rogatória); and
• Art. 10: permitting service via mail[20] or authorized process servers.
Thus, articles 8 and 10 may be critical in how one attempts service abroad.[21] One only needs to see Figure 1 reviewing a few members’ primary reservations to understand why effecting service of process abroad can be so difficult (even with experienced law firms).[22]
Analysis of Serving Process in Brazil
As can be seen in the table above, Brazil has made numerous reservations and declarations.[23] Importantly, Brazil has opposed articles 8 and 10.[24] Thus, foreign diplomatic and consular agents will not be allowed to effect service in Brazil.[25] Additionally, a litigant cannot be served with documents in Brazil via mail or by process server.[26]
The only ways to serve in Brazil are, thus, through waiver of service or by using Brazil’s Central Authority (BCA) (Autoridade Central Administrativa Federal). Anecdotally, it is uncommon in Brazil for defendants to waive service[27] or for opposing litigants to ask for waiver in the first instance.[28] Therefore, a plaintiff may use the BCA to effect service either via the HSC, or if not available, via the Inter-American Convention on Letters Rogatory and Additional Protocol (Inter-American Service Convention or IASC).[29] Recall that if an address is known, a plaintiff must use only the HSC by serving a request onto the BCA.[30] If an address is unknown, a plaintiff will not use the HSC to apply for service[31] but may resort to the IASC.[32] If serving in the U.S. (through personal or alternative forms of service), such service is outside of the HSC or IASC.[33]
Generally, once a request is submitted to the BCA,[34] it processes the request for compliance[35] and then forwards it to the Superior Court of Justice (Superior Tribunal de Justiça or STJ) for formal approval.[36] Thereafter, the STJ sends the request to a federal judge for execution (of service).[37] After execution, successful or otherwise, the inverse path is followed, including through the STJ.[38] Thereafter, the BCA then informs the applicant, i.e., the requesting or forwarding authority,[39] of the results of the execution and any other relevant detail, including objections.[40]
Brazil has made a declaration applicable to art. 6, which concerns proof of service. Brazil mandates that the required certificate “must be signed by the judge who has jurisdiction or by the [BCA].”[41] Yet, if a U.S. litigant is not (as) concerned with enforcement of a judgment in Brazil,[42] but only in the U.S., especially at the federal level,[43] complying with art. 6 may be unnecessary.[44] Indeed, the goal of the HSC is to provide actual notice in a timely manner.[45] Importantly, the HSC does not specify a time frame for service.[46]
Another issue that a plaintiff should address deals with forwarding authorities, i.e., who is authorized to serve a request onto a receiving member’s central authority.[47] Article 3 reads in full: “The authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalisation or other equivalent formality.”[48]
Thus, when documents originate from the U.S., for example, it, through any declaration, shall decide who is competent (at least initially).[49] A reader should note that most of the HSC members have declared that only government officials or judges themselves are “competent” authorities and, thus, authorized to request service.[50] Brazil follows that legal paradigm.[51] The U.S. obviously does not.[52] The U.S. has declared that the “persons and entities within the United States competent to forward service requests pursuant to Article 3 include any court official, any attorney, or any other person or entity authorized by the rules of the court.”[53]
The previous reads clearly that “any attorney” can submit a request if authorized by the rules of a particular forum court.[54] Moreover, although art. 3 of the HSC reads clearly that private individuals may not serve a request as they are not “judicial officers,”[55] the declaration of the U.S. appears to follow a different rule by allowing “any other person,” including a private individual or entity, to be authorized by a rule of the court.[56] Therefore, a court can commission, for example, an attorney who is not licensed in a particular jurisdiction to submit a request.[57]
Yet, a document-originating member may not be the final arbiter of interpreting who is competent to be an applicant. Courts from a destination or receiving member, which generally read any treaty together with all declarations and objections, typically also consider any constitution or other instrument of paramount authority in reaching a final interpretation.[58] The U.S. is no different, where its courts consider multiple factors.[59]
In Brazil, like any other country, some of these same considerations may also apply. However, some Brazilian courts have used inappropriate factors in interpreting other international conventions that some commentators have questioned whether Brazil is honoring its commitments thereto.[60] The U.S. government, for example, has officially labeled Brazil as having a pattern of noncompliance to other international conventions with Brazil’s courts showing “widespread patterns of bias” in favor of its citizens.[61] Of course, even when litigants in Brazil lose, it appears a losing party, i.e., a Brazilian, can file multiple appeals and motions, thus, significantly delaying what should be the inevitable.[62]
The following example may help illustrate risk: If a Brazilian defendant is served with a U.S.-based complaint, then the defendant could appeal in a court in Brazil based on the theory that the attorney originally submitting the request to the BCA lacked competence, thus, nullifying valid service. A judicial official in Brazil’s ministry of justice could, sua sponte, raise this objection, too. Moreover, Brazil’s public defender’s unit may similarly object.[63] If the plaintiff wants to appear in the Brazilian court, said plaintiff would have to hire local counsel. Apart from questions concerning any perceived bias for a domestic litigant, especially in certain types of cases (e.g., divorce), Brazil (like some other Latin-American countries) requires that the loser pay a stated percentage of the winner’s costs.[64] Thus, whether to appear vel non and risk an adverse ruling represents a significant consideration.[65]
To be sure, at the time of this writing, with the HSC approximately one year in effect in Brazil, it has not, pre- or post-accession, formally objected to or made any declaration regarding who is authorized to request members sign as applicants. Additionally, as expected, no Brazilian caselaw could possibly exist at this early date from the STJ, which has jurisdiction in Brazil to ultimately answer the question of competence should that issue be contested. Yet, some quanta of risk remains that the STJ (or other body) could issue an adverse opinion or guidance that negates an otherwise valid HSC request based on whether the applicant was incompetent. The BCA has, at least informally, recognized said risk.[66] Similarly, Brazilian attorneys have echoed (at least to this author) said risk.
Yet, an economically superior and simple way to obviate any issue with applicant authorization in perfecting service exists: Obtain the imprimatur of a U.S. court for one or more attorneys to submit the request.[67] Any court, state or federal, has the power via multiple modes, inter alia, to declare specific attorneys authorized to submit a request.[68] Due to the ease with which a plaintiff can obtain relief and thereby ameliorate, if not entirely eliminate, such discrete risk in the service of process,[69] a plaintiff should seek such relief concerning service in at least Brazil.[70] With the HSC in its infancy in Brazil, until it is settled that any licensed attorney may act as an applicant without court approval, a plaintiff should always seek approval from a requesting member’s court in the identification of an applicant for an HSC request.
Transnational litigation, especially in Brazil, is not for the faint-hearted. The same can be said of service of process thereto. With diligence, patience, and competent counsel, including those connected with a network of lawyers and other professionals in Brazil, a U.S.-based plaintiff or other party can use the HSC to properly effect service. However, the jury is still out on just how effective the HSC will be in Brazil.
[1] HSC is formally known as the “Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters,” originally established November 15, 1965. See generally Hague Conference on Private International Law (hereinafter Hague Conference), Full Text HSC document (HSC), available at https://www.hcch.net/en/instruments/conventions/full-text/?cid=17; see also Brazil’s Presidential Decree No. 9,734 (Mar. 20, 2019), http://www.planalto.gov.br/ccivil_03/_ato2019-2022/2019/decreto/D9734.htm; Hague Conference, Brazil Accedes to the Service Convention (Nov. 29, 2018), https://www.hcch.net/en/news-archive/details/?varevent=650.
[2] Nations may become a part of the HSC through ratification, accession, or succession, neither of which has any bearing once the HSC is effective or in force.
[3] See generally Overheid.nl, Treaty Database, Brazil (Nov. 29, 2018), https://treatydatabase.overheid.nl/en/Verdrag/Details/004235_b#Brazil.
[4] Howard A. Newman, Service of Process in Brasil (Feb. 23, 2018), http://www.newmanlawoffices.com/single-post/2018/01/22/Serving-Process-In-Brazil (reviewing various forms of service and concluding that for Brazil, letters rogatory were, at that time, the only viable option).
[5] Although this article for ease typically refers to plaintiffs who use the HSC, an applicant who uses the HSC could be a civil plaintiff or even a commercial non-litigant.
[6] See Bruno A. Ristau, International Judicial Assistance: Civil and Commercial §4-1-1,145 (2000).
[7] S. Exec. C, 90th Cong., 1st Sess. (1967); see also U.S. Const. art. II, ¶2, Cl. 2 (stating that the president “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur”); The Federalist No. 75, 504-05 (1961). No enabling statute was necessary since the HSC was a self-executing treaty, causing it to become the “law of the land” equal to any act of Congress, e.g., Vorhees v. Fischer & Krecke, 697 F.2d 574, 575 (4th Cir. 1983) (finding that HSC was self-executing). The HSC entered into force in the U.S. on February 10, 1969. 20 U.S.T. 361.
[8] See Hague Conference, Members, https://www.hcch.net/en/states/hcch-members.
[9] See id. China had previously declared that the HSC would apply to Hong Kong and Macao.
[10] See HSC art. 1; Hague Conference, HSC at preamble (reciting that the HSC was intended “to create appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time,” and “to improve the organisation of mutual judicial assistance for that purpose by simplifying and expediting the procedure”).
[11] HSC art. 1. Sometimes, a plaintiff may need to incur considerable resources in tracking a defendant. In one example, prior to being retained, one of the author’s clients spent considerable time (and money) in using an international private investigation service to locate the address of a target in Brazil only to get one of four possibilities. After being retained, in two days, the author, with his agents, located the target at a fraction of the cost.
[12] Service pursuant to arbitration is made according to the applicable rules of the chosen arbitration institution. Notably, an arbitration award will be enforceable in Brazil only if it fulfills certain requirements. See note 42.
[13] See HSC art. 2; see also HSC art. 5 (setting forth service by a central authority in any manner “prescribed by its internal law”). Brazil and the U.S. have respectfully designated as the central authority for each the Ministry of Justice and the Department of Justice. See Hague Conference, Status Table, https://www.hcch.net/en/instruments/conventions/status-table/print/?cid=41 (providing contact information for every member’s central authority).
[14] A request or service request is formally known as a “Request for Service Abroad of Judicial or Extrajudicial Documents.” An appropriate submission includes, in duplicate along with an original of at least 1) a summary of the documents to be served, 2) the documents themselves, 3) a request (form) itself that also contains, inter alia, a certificate (for service), and translations for at least parts 1-2. See HSC art. 3; see also HSC art. 5 (imposing additional language and translation requirements).
[15] HSC art. 3. A request need not be legalized or authenticated by an apostille; see also Apostille, Black’s Law Dictionary 112 (9th ed. 2009) (defined as “a standard certification provided under the Hague Convention for authenticating documents used in foreign countries”). The purpose of an apostille is to “abolish the requirement of diplomatic or consular legalization for foreign public documents.” Texas Secretary of State Ruth R. Hughs, Authentication of Documents FAQs, http://www.sos.state.tx.us/authfaqs.shtml. A completed apostille certifies the authenticity of a signature, the capacity in which the person signing the document has acted, and identifies the seal/stamp that the document bears. See id.
[16] Similar to a request, the documents to be served need not be legalized or authenticated by an apostille. HSC art. 3.
[17] HSC art. 5.
[18] One of the chief reasons to use experienced counsel, including those that can navigate Brazil and its language, is especially at the pre- and post-submission stages of the process. Donald C. Dowling, Jr., Forum Shopping and Other Reflections on Litigation Involving U.S. and European Businesses, 7 Pace Int’l L. Rev. 465, 473 (1995) (concluding that “[m]any U.S. judgments against foreign defendants have been rendered unenforceable due to service of process defects established in foreign courts at the enforcement stage”).
[19] HSC art. 6.
[20] The literature is replete with litigation and commentary on the intent and reading of art. 10(a) that also elicited a special commission attempting to respond to what the commission concluded were interpretations contrary to the meaning and original intent of art. 10(a). See generally Hague Conference, Conclusions and Recommendations of the Special Commission of October–November 2003, https://www.hcch.net/en/publications-and-studies/details4/?pid=3121. Simply, a plain reading of art. 10(a) in light of the rest of the HSC dictates that service by mail should be allowed to every person residing in a contracting state. However, although the U.S. will allow such service as part of a unitary approach as a function of its liberally construed federal rules of civil procedure (and specifically FRCP 4), other members of the HSC, including Brazil, will not allow such service (even though, as a matter of legal interpretation, the HSC itself appears to not even provide a member with such authority to oppose). See Water Splash, Inc. v. Menon, 137 S. Ct. 1504, 1513 (2017) (allowing service by mail so long as a receiving member does not object).
[21] See HSC art. 11 (allowing service by any method by which two members may agree); HSC art. 19 (clarifying that the HSC does not preempt any internal laws of its signatories that permit service from abroad via methods not otherwise allowed by the HSC).
[22] See generally Hague Conference, Table Reflecting Applicability of Articles (contrasting positions for all members as of Feb. 2019), available at https://assets.hcch.net/docs/6365f76b-22b3-4bac-82ea-395bf75b2254.pdf.
[23] See note 3.
[24] HSC arts. 8, 10.
[25] HSC art. 8.
[26] HSC art. 10.
[27] Waiver is unnecessary in Brazil since purely domestic litigants therein can now easily be served by post. See note 51; see Fed. R. Civ. P. 4(d) (allowing waiver of service, which the rules incentivize by allowing 90 days (and not 20) to answer a complaint and summons). Yet, the HSC contemplates waiver of service. Since Brazil is a party to the Hague Legalization Convention, a local foreign notary may authenticate a defendant’s signature either in front of a U.S. consular official or preferably with an apostille, which is a certification under the terms of said convention and, thus, supplements a local notarization of a document, e.g., proof of service.
[28] Though a litigant would normally consider proceeding by Rule 4(d) waiver to avoid the costs associated in translating and serving documents under the HSC’s formal rules, such should not be employed for Brazilian targets. See Fed. R. Civ. P. 4(d).
[29] See, e.g., Fed. R. Civ. P. 4(f)(1) (authorizing service on a foreign corporation or individual “by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the H[SC]”).
[30] For requests made to Brazil, an electronic request moots the duplicate requirement. See HSC art. 3. Although the responses or answers to a request form technically need not be translated, best practices, especially for Brazil, warrant translation as well (where the author also uses forms in trilingual that he has drafted). See HSC art. 5; Brazil Ministry of Justice and Public Security, The Hague Citation Convention, https://www.justica.gov.br/sua-protecao/cooperacao-internacional/cooperacao-juridica-internacional-em-materia-civil/acordos-internacionais/citacao (requiring requests from outside Brazil to the same rule as requests originating from within, i.e., requiring trilingual forms); see U.S. Marshals Service, Request for Service Abroad of Judicial or Extrajudicial Documents, available at https://www.usmarshals.gov/forms/usm94.pdf (having only a bilingual requirement for requests to the U.S.).
[31] As if navigating the procedural rules was not complex enough, even the words themselves can cause headaches: There is no one word in Portuguese (Brazilian or classical) that formally means service (or service of process for that matter). Rather, a different word is used as a function of the document being served (e.g., summons (citação), subpoena (intimação), and notice (notificação)). See, e.g., Maria Chaves de Mello, Dicionário Jurídico 125-26, 339, 407 (10th ed. 2018). It follows, then, that the official Brazilian translation for a request for service would incorporate all three words: “Solicitação de Citação, Intimação e Notificação no Estrangeiro de Documentos Judiciais ou Extrajudiciais.” See note 14. Notwithstanding, informally, citação will generally mean service.
[32] A reader should understand that once the BCA has a substantive request, either through the HSC or the ISAC, the procedure is the same. This is why the STJ formally subsumes a HSC request under the rubric “Carta Rogatória,” thereby assigning a case number that begins with “CR.” See also note 51. This author surmises that using the same systems and nomenclature may reflect the immaturity of the HSC within Brazil.
[33] See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 707-08 (1988) (distinguishing domestic service from “service abroad,” as the HSC makes clear in its title and preamble).
[34] This author has found anecdotally that good practice dictates that demographic information not required in an HSC request — including a CPF (Cadastro de Pessoas Físicas, a number associated with an individual but not akin to a Social Security number) and other information (work, cell, and home numbers) — should be submitted at the time of the request or later. To be sure, an applicant (or his or her agents) would need to know how to obtain such information, which is not readily available.
[35] If the BCA (or any central authority) concludes a request does not comply, said authority must promptly inform the applicant. HSC art. 4.
[36] See Brazil Ministry of Justice and Public Security, Brazilian Central Authority for International Legal Cooperation, https://www.justica.gov.br/sua-protecao/cooperacao-internacional/autoridade-central-1; see also Brazilian Code Civil P. art. 105 (2015), available at http://www.planalto.gov.br/ccivil_03/_Ato2015-2018/2015/Lei/L13105.htm. Although the data set is currently limited, the BCA takes about 30 days to forward the request to the STJ.
[37] See Brazil Superior Court of Justice: Int’l Legal Cooperation, https://international.stj.jus.br/pt/Cooperacao-Internacional/Cooperacao-Juridica-Internacional (explaining process).
[38] Notably, there are many steps (fases) that occur in this stage including decisions and orders from the STJ. An analogous public defender (Defensoria Pública da União) in Brazil’s Federal Prosecution Service (Ministério Público Federal), which is constitutionally guaranteed independent from Brazil’s executive, legislative, and judicial branches, represents the interests of justice (and not any target). The public defender may object to proper service (e.g., objecting to whether substituted service is valid). However, if the STJ issues an order granting exequatur, then without more, Brazil has formally permitted the exercise or enforcement by the applicant and his client of any rights therein.
[39] The HSC refers to a “forwarding authority,” e.g., HSC art. 3, while the model forms authorized by the HSC refer to a “requesting authority.” See Hague Conference, Model Form Annexed to the Convention, available at https://www.hcch.net/en/publications-and-studies/details4/?pid=6560&dtid=65. These terms are also synonymous with the term, “applicant.”
[40] Brazil now allows an applicant, albeit one that can read Portuguese and digest its legal terms, the ability to follow the status of a case in real time. See Brazil Superior Court of Justice, http://www.stj.jus.br/sites/portalp/Inicio. Conversely, an applicant (if he or she has his or her own CPF, which non-Brazilians may obtain) may sign up to receive real-time updates.
[41] See Brazil’s Decl. art. 6.
[42] Foreign judgments (and arbitral awards) in Brazil would first get recognized via a request/petition and then enforced in the STJ after certain formalities are realized (e.g., sworn translations, consular authentication, etc.).
[43] A prime example of when proof of service may not entirely matter is where the target is not really the defendant but his/her/its insurance carrier or indemnitor (with assets in the U.S.) that covers the insured/indemnitee.
[44] See, e.g., Fox v. Regie Nationale des Usines Renault, 103 F.R.D. 453, 455 (W.D. Tenn. 1984) (holding that since a failure to make proof of service does not affect the validity of service under FRCP 4, mandatory provisions need not be strictly construed where a defendant has received actual notice of a suit). To understand this holding, one must understand two legal precepts: first, the HSC was drafted and, thus, intended to safeguard the due process rights of a defendant and the sovereignty of a nation-state, i.e., member; and second, proof of service is a safeguard for a plaintiff, since proof of service appraises a plaintiff and a court of effected service, typically within mandated time periods. Nonetheless, though a Brazilian court should reach the same result should proof of service not comply, if enforcing a judgment in Brazil, a litigant should always demand that said proof be in compliance with Brazil’s declaration under the HSC or incur serious and unnecessary risk thereof.
[45] Volkswagenwerk, 486 U.S. at 698.
[46] See HSC art. 15 (providing for the use of alternative methods of service if a central authority does not respond within six months of an appropriate request for service); Fed. R. Civ. P. 4(m) (exempting service in a foreign country from the normal requirements that a summons and complaint be served within 90 days of filing).
[47] See note 37.
[48] HSC art. 3 (emphasis added).
[49] See id.
[50] In some countries (e.g., China, France, Japan, and Israel), attorneys must seek the assistance of their local courts (judges or ministers, as they are sometimes called) to submit a request, e.g., Hague Conference, Japan Central Authority & Practical Information, https://www.hcch.net/en/states/authorities/details3/?aid=261.
[51] Keith S. Rosenn, Civil Pro. in Brazil, 34 Am. J. Comp. L. 487, 492-93 (1986) (showing that the Brazilian Code of Civil Procedure, which governs service, allows it only by 1) personal service (only via judicial officers — similar to how the U.S. marshals were previously only allowed to serve); 2) registered mail (previously limited, unwisely, only to commercial or industrial entities); and 3) publication (limited to when the whereabouts of the defendant are unknown, or if the defendant is inaccessible or unidentified)); see also Brazilian Code Civ. P. art. 246 (2015) (showing current code on service substantively changed to allow service via post to individuals as well). It should be apparent, then, that if an applicant does not have an address for a target, the applicant must use letters rogatory for service (whereby a Brazilian judicial official will presumably use publication, which consists of two notices in a local newspaper with one notice in the official gazette (diário oficial)).
[52] See generally 20 U.S.T. 362, art. 3(1).
[53] Id.
[54] See id.
[55] See HSC art. 3.
[56] See note 51; see Fed. R. Civ. P. 4(c)(2) (defining that any nonparty over the age of 18 is authorized to serve documents but failing to mention forwarding authorities under the HSC).
[57] See 20 U.S.T. 362, art. 10(b) (declaring that “[a]ttorneys in the United States are authorized to perform legal functions in the State to which they are admitted to the bar”).
[58] While both the U.S. and Brazil are parties to the Vienna Convention on the Law of Treaties, only the U.S. has yet to ratify the treaty, which establishes the rules and procedures for how treaties are defined, drafted, enforced, amended, interpreted, and generally operate. See generally 1155 U.N.T.S. 331.
[59] American courts interpret treaties “in the nature of a contract between nations.” Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 253 (1984). Like other contracts, treaties “are to be read in the light of the conditions and circumstances existing at the time they were entered into, with a view to effecting the objects and purposes of the [s]tates thereby contracting.” Rocca v. Thompson, 223 U.S. 317, 331-32 (1912); see also Marks v. Hochhauser, 876 F.3d 416, 420 (2d Cir. 2017) (citing the Vienna Convention on the Law of Treaties for the same principles). The shared expectations of the contracting parties govern giving the specific words of a treaty a meaning consistent thereto. Air France v. Saks, 470 U.S. 392, 399 (1985). Applying these principles necessarily “begins with [the] text” of a treaty. Medellin v. Texas, 552 U.S. 491, 506 (2008). However, as the U.S. Supreme Court has emphasized, courts have latitude to examine “the negotiation and drafting history of the treaty” as well as “‘the post[-]ratification understanding’ of signatory nations.” Id. at 507; see also Factor v. Laubenheimer, 290 U.S. 276, 294-95 (1933) (holding that “[i]n considerations which should govern the diplomatic relations between nations, and the good faith of treaties,” court may “look beyond its written words to the negotiations and diplomatic correspondence of the contracting parties relating to the subject-matter, and to their own practical construction of it”). Therefore, U.S. courts have wide latitude in interpreting treaties so long as they do not “alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial.” See Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 135 (1989).
[60] Amanda Michelle Waide, To Comply or Not Comply? Brazil’s Relationship with the Hague Convention on the Civil Aspects of International Child Abduction, 39 Ga. J. Int’l & Comp. L. 271 (2011); Karen Mazurkewich, Brazil’s Compliance with the Hague Convention Is Questioned, https://www.international-divorce.com/brazils-compliance-hague.htm.
[61] U.S. Dept. of State, Report on Compliance with the Hague Convention on the Civil Aspects of Int’l Child Abduction 13-14 (2009) (identifying Brazil as one of only a few non-conforming nations); see U.S. Dept. of State, Int’l Parental Child Abduction, Report on Compliance with the Hague Convention on the Civil Aspects of Int’l Child Abduction 4 (Apr. 2014), available at https://travel.state.gov/content/dam/childabduction/complianceReports/2014.pdf (finding continuing pattern of noncompliance due to, inter alia, lengthy reviews and numerous appeals).
[62] Accord Declaratory Action on Constitutionality, Supremo Tribunal Federal (2019) (disallowing by Brazil’s Supreme Court execution of judgment until any process or appeal, special or otherwise, is final), available at http://www.stf.jus.br/arquivo/cms/noticiaNoticiaStf/anexo/ADCvotoRelator.pdf; cf. Brazil’n Const. at art. 5, Item LVII (delaying final judgment until all appeals exhausted).
[63] See note 36.
[64] See, e.g., Mathias Reimann, Cost and Fee Allocation in Civil Procedure: A Synthesis 3, 5-6 (2012) (showing that many civil systems require that the loser pay all of the costs whereas some have a fixed schedule).
[65] See generally Brazilian Code Civ. P. arts. 82-85 (2015) (mandating fee-shifting and taxing of costs to the losing party). It should be obvious that a litigious target wanting to avoid a mandate incurs no risk of shifting fees should a non-Brazilian based plaintiff not enter an appearance. Cf. note 38 (concerning exequatur).
[66] This author has had informal communications with the BCA.
[67] This would be accomplished through motion’s practice with necessary exhibits, including any affidavit or declaration.
[68] U.S. Const. Supremacy Clause (requiring court rules, both state and federal, to yield to ratified treaties); HSC art. 15 (empowering that a “judge may order…any provisional or protective measures”); see also Fed. R. Civ. P. 4(f)(3) (allowing specifically the court to order service by any “means not prohibited by international agreement”).
[69] Courts routinely issue orders and make declarations whose sole purpose is to mitigate or eliminate risk for a movant, e.g., Grede v. FCstone, LLC, 746 F.3d 244, 255 (7th Cir. 2014) (approving of a “comfort order” in authorizing the disbursement of funds); see also In re Hill, 364 B.R. 826, 827, n.1 (Bankr. M.D. Fla. 2007) (tracing power for comfort orders at least in the bankruptcy context to 11 U.S.C. §105(a), which supplies those courts with the authority to “issue any order, process, or judgment that is necessary or appropriate to carry out [statutory] provisions”) (citing Marrama v. Citizens Bank of Mass., 127 S. Ct. 1105 (2007)). Similarly, state and federal courts have the power to issue any order that is necessary to execute the provisions of the HSC, e.g., HSC art. 15.
[70] This author has already had multiple U.S. courts grant such requested relief. Additionally, this author has testified in court concerning his expertise about the HSC in Brazil.
Howard A. Newman (MBA), at his eponymous firm with offices in Washington, D.C., and Oregon, works at the intersection of litigation, business, and intellectual property with a niche practice in Brazil. He thanks his friend and colleague, Dr. Milton Lucídio Leão Barcellos, partner at Leão Intellectual Property, for proofreading this article.
This column is submitted on behalf of the International Law Section, Robert J. Becerra, chair, and Laura M. Reich, editor.
