Is service by letter rogatory still required?

Written by | Dispute Resolution

Special Court of the Superior Court of Justice allows recognition of foreign judgment where service was effected by post.

On 31 October 2017, the special court of the Superior Court of Justice handed down its decision in HDE No. 89 – US (Shutterstock Inc v Latin Stock Brasil Produções Ltda).

The case involved the request for the recognition of a foreign judgment obtained by Shutterstock (the judgment creditor) in the Supreme Court of New York against Latin Stock Brasil Produções Ltda, a Brazilian company.

The parties had entered into a written contract that contained provisions electing the courts of New York and New York law to govern the parties’ disputes. Importantly, the agreement was cleverly drafted so as to specifically provide for service by certified or registered post. Service was affected by FedEx and the defendant accepted the delivery and its employees signed the FedEx delivery receipt.

Writing for the special court, Assis Moura J concluded:

“Thus, service cannot be considered invalid under the pretext that a Brazilian rule has not been followed, it being certain, furthermore, that service by post is not strange to Brazilian law. It is reasonable, therefore, to apply flexibly the requirement of [service by] letter rogatory in the specific case. Especially, here the service was effected by post, in accordance with the contract and the rules of the country where the judgment was issued, with the judgment providing that the defendant did not appear, reply or offer any type of response [and] with the plaintiff having requested the issuing of the judgment by default, which was granted and published […]. In this context, there is no nullity in the service of the foreign proceedings to prevent the recognition of the judgment.” (Emphasis added.)

The decision in Shuttershock is another example demonstrating that Brazilian courts (especially the Superior Court of Justice) are leaning towards making international service of process more flexible. This is welcome news for those who may need to litigate with Brazilian companies. However, as these views are not yet consolidated in Brazil’s jurisprudence, the safer approach continues to be to follow the procedures for effecting services via a letter rogatory.

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Last modified: November 5, 2019