Brazil enacts new rules for confirmation of foreign arbitral awards

On 17 December 2014, the Brazilian Superior Tribunal of Justice (“STJ”) enacted Amendment No. 18 to its Internal Regulations, establishing new rules for the confirmation (homologação) of foreign decisions, including court judgments and arbitral awards. The STJ has exclusive jurisdiction over all requests for the confirmation of foreign arbitral awards since 2005, after the passage of Constitutional Amendment No. 45/2004. Pursuant to Article 35 of the Brazilian Arbitration Act (“BAA”), all foreign awards –defined as awards made outside the Brazilian territory– must go through the process of confirmation before they can be enforced by the Brazilian courts. The defenses to confirmation contained in the BAA and STJ Amendment No. 18 are similar to those provided for in Article V of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

STJ Amendment No. 18 establishes the requirements of a request for confirmation of a foreign decision. For its most part, it restates the previous regulations contained in STJ Resolution No. 9 of 4 May 2005, which is now no longer in effect, with a few textual adjustments. The following are some of the most significant changes implemented by Amendment No. 18 to the STJ Internal Regulations.

• The requirement that the request for confirmation be accompanied by a copy of the award and of the arbitration agreement certified by the Brazilian consulate of the place where it was rendered and translated into Portuguese by a translator sworn in Brazil has been softened. It is no longer an “indispensable requisite.” According to Article 216-C of the amended STJ Internal Regulations, such requirement can be dispensed with in certain circumstances. Article 216-C, however, does not explain what those circumstances are.
• Article 216-J of the amended STJ Internal Regulations now provides for a reply and a rejoinder within five days from the answer to the request for confirmation.
• The amended STJ Internal Regulations now also establish in Article 216-F that if the confirmation request concerns an issue with respect to which the case law of the court is stable and consistent, the reporting Justice may decide the confirmation request alone. As the case law of the court develops, this provision will hopefully speed up the confirmation process by allowing a single Justice to decide the confirmation request.
• Finally, some commentators have taken note of the addition of “human dignity” to the grounds for refusal of confirmation. Article 216-F of the amended STJ Internal Regulations now provides that “Foreign decisions that are against national sovereignty, human dignity and/or public policy shall not be confirmed.” Some have argued that the addition of “human dignity” does not change anything because protection of human dignity is comprised in Brazil’s public policy, while others have argued that because of the principle of effective interpretation, the words “human dignity” must be given a meaning different from “public policy.” It is possible that “human dignity” was added to the text of the STJ Internal Regulations to address the confirmation of family law court decisions, rather than arbitral awards. Given that the STJ Internal Regulations cannot change the text of a law enacted by Congress and that the BAA does not contain a reference to human dignity, the best understanding seems to be that as far as foreign arbitration awards are concerned, the words “human dignity” have no special meaning beyond that which is already comprised in the concept of public policy.