02Jan
By: Tom On: January 2, 2019 In: International Litigation, Litigation Support, Service of Process Comments: 0
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In November 2018, the Hague Conference on Private International Law posted this announcement on its webpage:

On 29 November 2018, Brazil deposited its instruments of accession to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Service Convention). With the accession of Brazil, the Service Convention now has 74 Contracting Parties. The Service Convention will enter into force for Brazil on 1 June 2019.

Brazil’s accession to the Hague Service Convention represents the culmination of years of work by the Convention’s Secretary General, Christophe Bernasconi.

How is Service of Process Currently Effected in Brazil?

Currently service of process in Brazil is effected pursuant to the Inter-American Convention on Letters Rogatory (IAC). Service under the IAC is arduous for a number of reasons; including (but not limited to):

  • The documents to be served must be legalized (e., made to be self-authenticating)
  • The certified translation must be legalized
  • The only valid forwarding authority (i.e., the party authorized to sign the IAC request forms) is the US Central Authority. The clerk of the forum court must sign the IAC requests forms. Many (perhaps most) clerks have never seen an IAC request form. Thus a lot of time is spent educating the clerks on IAC procedure.

Needless to say, the proper preparation of an IAC request for service in Brazil can easily take several months. Once the documents arrive in Brazil, the Brazilian Central Authority will then need 6-12 months to effect service and an additional 6-12 months after that to return the proof of service.

How Will Service be Effected After June 2019?

Based on Brazil’s declarations to the Hague Convention, after 1 June 2019, proper service in Brazil will be effective exclusively through the Brazilian Central authority because Brazil has objected to both mail and agent service. Accordingly, because the Supreme Court has mandated where the Hague Convention is in effect, after 1 June 2019 all service to Brazil must pass through the Brazilian Central Authority (see Volkswagen Aktiengesellschaft v. Schlunk :: 486 U.S. 694 (1988)).

Theoretically, service pursuant to the Hague Convention is much more efficient because the documents to be served do not have to be legalized;[1] and in the US any licensed attorney is considered a forwarding authority who is authorized to sign the Hague Request forms. But will service in Brazil pursuant to the Hague Convention be superior to similar service under the IAC?

Pros & Cons of Service Pursuant to the Hague Convention

On the pro side:

  • Once service in Brazil shifts to the Hague Service Convention, such service will be less expensive because legalization will no longer be required.
  • Preparation of forms will also be more efficient without the need for legalization [2], the Clerk of the Court will not be required to sign a request, and the request for service will not need to be sent to the US Central Authority for review and signature. [3]

On the con side:

  • Brazil’s accession to the Hague Convention will not change how the Brazilian Central Authority operates. Historically, after Colombia and Venezuela shifted from the IAC to Hague Convention, Legal Language Services has not observed that these countries’ Central Authorities effect service or return proofs of service any faster.[4]
  • Under Brazil’s declarations to the Hague Convention, Article 10 service (aka agent service) is prohibited.[5] Agent service was a very efficient way to service process in Brazil if enforcement of a judgement in Brazil was not a concern. Agents would generally effect service within 1-2 weeks of the documents arrival in Brazil rather than the year (or more) it would take the Brazilian Central Authority to effect service.

So, will service in Brazil be better under the Hague Convention? Like most things in life, the answer to this question is: “It depends.” Certainly, Hague service in Brazil offers clear-cut advantages if you only consider the preparation of the request for service. On the other hand, once the documents arrive in Brazil, we can only hope that the Brazilian Central Authority becomes more efficient. If it doesn’t, you probably won’t notice much of a difference.

If you require assisting service process in Brazil, contact the professionals at Legal Language Services today.

Notes

[1] Hague Service Convention, Article 3; available at https://www.hcch.net/en/instruments/conventions/full-text/?cid=17
[2] Whether this proves to be a true statement remains to be seen. When service in Venezuela shifted from the IAC to Hague Service, the Venezuelan Central Authority still required that documents to be served be legalized.
[3] Obtaining the Clerk’s signature is often a very vexing and time-consuming step because many / most clerks have no prior experience with IAC request forms and will often – at first — refuse to sign the form.
[4] Service of process in Colombia and Venezuela is not common; accordingly our data for comparison is drawn from a limited sample size (both before and after these countries adopted the Hague Convention).
[5] As is mail service. See Water Splash, Inc. v. Menon, 137 S. Ct. 1504 – 2017.


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