Assisting Parties in U.S. Disputes
When a U.S. case has a Brazilian connection, the procedural steps that follow are governed by treaty mechanisms that reward careful preparation. Deffenti Lawyers has acted on some of the first requests sent to Brazil under the Hague Evidence Convention, including matters before the U.S. District Court for the Southern District of New York.
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When your U.S. case touches Brazil, you need someone who understands both systems.
U.S. litigation increasingly intersects with Brazilian parties, witnesses, documents and assets. Securities class actions, antitrust matters, international fraud, trade disputes and enforcement proceedings all generate procedural needs in Brazil that U.S. counsel cannot address through domestic process alone. Serving a Brazilian defendant, obtaining documentary evidence from a Brazilian company or government body, deposing a Brazilian witness, or enforcing a U.S. judgment in Brazil each requires navigating a distinct legal framework with specific formal requirements.
The treaty framework has improved significantly in recent years. Brazil joined the Hague Evidence Convention in 2017 and the Hague Service Convention in 2019. Both replaced the former diplomatic channels route, which could take several years to yield results. Under the Conventions, targeted requests processed through the Superior Court of Justice (STJ) now move considerably faster, though “faster” in the Brazilian context still means months, not weeks.
Deffenti Lawyers is uniquely positioned to assist U.S. counsel with these needs. Fabiano Deffenti, the firm’s Senior Partner, is licensed as an attorney-at-law in New York in addition to his Brazilian and Australasian admissions. He has acted for U.S. clients in class actions with a Brazilian nexus, including on some of the first Letters of Request sent to Brazil under the Hague Evidence Convention following the Convention’s entry into force.
This guide addresses the specific procedural mechanisms available to U.S. counsel when a dispute has a Brazilian connection: evidence gathering under the Hague Evidence Convention, service of process under the Hague Service Convention, enforcement of U.S. judgments and awards, and the practical realities of each.
Three qualifications that matter when the procedural steps cross jurisdictions
U.S. class actions with a Brazilian party or Brazilian-held evidence
Shortly after the Hague Evidence Convention entered into force in Brazil in April 2017, Deffenti Lawyers was retained to act as Brazilian counsel for the U.S. requesting party, aiding the lead plaintiff in In re Bradesco Securities Litigation before the U.S. District Court for the Southern District of New York against one of Brazil’s largest banks. Deffenti Lawyers successfully obtained the orders sought. The STJ moved relatively quickly and did not apply Brazil’s Article 23 pre-trial discovery limitation broadly, instead reading it as a restriction on abusive or overly broad collection of evidence rather than a bar on targeted, specific requests.
The STJ’s decision in this matter is the leading Brazilian precedent on the scope of discovery under the Hague Evidence Convention. Fabiano Deffenti and Vanessa Borges appeared for the U.S. requesting party in the Brazilian proceedings.
In the Bradesco matter, specific requests targeted evidence held by the Ministério Público Federal (Federal Prosecutor’s Office). The STJ ruled that there was no objection to sharing specified evidence held by the Federal Prosecutor where relevant to a foreign court trial, confirming that Hague Convention requests in Brazil can reach government-held materials.
U.S. securities class actions, antitrust cases, FCPA matters and fraud litigation increasingly involve Brazilian entities as defendants, witnesses or document custodians. Deffenti Lawyers assists U.S. lead counsel from the initial assessment of what is obtainable through Brazilian process to the execution and delivery of results.
- ,Securities litigation: Class actions involving Brazilian companies listed on U.S. exchanges, including ADR programs, often require evidence of corporate decisions, financial records and communications held entirely in Brazil.
- ,FCPA and anti-corruption matters: Enforcement actions under the Foreign Corrupt Practices Act frequently involve Brazilian counterparties, with relevant evidence held by Brazilian entities or government agencies.
- ,Antitrust and competition: Cartel investigations and follow-on civil litigation involving Brazilian market participants may require evidence of commercial communications and pricing discussions.
- ,Fraud and asset recovery: Tracing fraudulently transferred assets to Brazilian accounts or entities requires both evidentiary process and, ultimately, enforcement proceedings in Brazilian courts.
- ,Product liability: Class actions against manufacturers with Brazilian production operations may require factory records, quality control documentation and regulatory correspondence.
- ,Environmental and human rights litigation: Matters arising from mining, energy and agriculture operations often involve government agency records, environmental assessments and regulatory correspondence.
Obtaining evidence in Brazil for U.S. proceedings
The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters has been in force in Brazil since April 27, 2017 (via Decree 9,039/2017). It provides the principal mechanism for U.S. counsel to obtain evidence located in Brazil for use in U.S. proceedings.
The STJ’s flexible approach to Brazil’s Article 23 declaration means that a well-drafted Letter of Request can succeed where a broad one will fail. If the request is too wide, it will be rejected as abusive. If it is too narrow, critical documents may not be captured. Deffenti Lawyers has experience calibrating the scope and specificity of Letters of Request for Brazilian proceedings and drafting both the Portuguese and English versions for filing.
What a Letter of Request to Brazil must contain
A Letter of Request must include: the identity of the requesting authority; the parties and representatives; the nature of the proceedings and facts; a precise description of the evidence sought; and the names, addresses and questions for any persons to be examined.
The Letter must attach the issuing court’s authorization, typically the judge’s signature and court seal. Deffenti Lawyers advises on the precise form required by current STJ practice.
The STJ’s interpretation of Article 23 turns on whether the request is targeted or an abusive collection of evidence, mirroring the difference between a 28 U.S.C. §1782 application and a broad discovery demand.
Requests specifying documents by type, date range, author or subject with particularity are far more likely to be approved. Deffenti Lawyers reviews draft requests before submission.
All materials must be in Portuguese or accompanied by a tradução juramentada: a sworn translation by a translator registered with the Commercial Registry in the relevant Brazilian state. Standard or notarized translations do not satisfy this.
Deffenti Lawyers coordinates certified translation for all Letters of Request. For complex matters, the translation process alone can take two to four weeks.
Section 1782 authorizes U.S. courts to order persons in the U.S. to produce discovery for foreign proceedings. Where the custodian is a U.S. person, this may complement a Hague Evidence Convention request.
Where the custodian is located in Brazil, the Hague Evidence Convention route is typically the only available mechanism. In some cases, parallel requests offer the best coverage.
Serving process on Brazilian defendants and witnesses
The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters has been in force in Brazil since June 1, 2019 (Decree 9,734/2019). It replaced the letters rogatory route for service on Brazilian defendants in most civil and commercial matters.
Brazil’s significant declarations and reservations under the Hague Service Convention mean that the service options available to U.S. counsel are more constrained than with many other Convention countries. There is no postal shortcut and no consular service. Every service request must go through the STJ as Central Authority, with full Portuguese translation. Factoring this into case scheduling from the outset is essential.
Enforcing U.S. judgments and arbitral awards in Brazil
A U.S. judgment cannot be enforced directly in Brazil. It must first be recognized through homologação de sentença estrangeira before the STJ, which reviews only procedural validity, not the merits.
Once recognized, the judgment is executed by the competent federal court, with tools including the penhora online electronic seizure of accounts through SISBAJUD.
A U.S. arbitral award is enforceable in Brazil under the New York Convention through the same STJ recognition process, applying without the reciprocity reservation.
The grounds for refusal are those of Article V. Recognition of foreign arbitral awards is generally faster and more predictable than recognition of court judgments.
A certified copy of the judgment or award; proof of finality; proof of proper service on the Brazilian defendant; a certified Portuguese translation; and a power of attorney for Brazilian counsel.
For U.S. judgments, a Certificate of Finality and the Hague Convention service record are the critical supporting documents.
The penhora online mechanism lets the executing court freeze funds across all Brazilian financial institutions via SISBAJUD, operated by the Central Bank of Brazil, within minutes of the court order.
Other attachable assets include real estate, vehicles and shares in Brazilian companies, searchable through the relevant registries.
Recognition proceedings before the STJ typically take 12 to 18 months for uncontested matters. Where the Brazilian defendant actively contests recognition, proceedings can take considerably longer. U.S. counsel should commence the recognition process as early as possible after the judgment or award becomes final, rather than waiting until U.S. enforcement options are exhausted.
Six mistakes U.S. counsel make when dealing with Brazil
Admitted in New York, Brazil, Australia and New Zealand
Fabiano Deffenti is Senior Partner at Deffenti Lawyers. He is licensed as an attorney-at-law in New York, admitted to practice in Brazil and Australia, and enrolled as a barrister and solicitor in New Zealand. He is co-editor of Introduction to Brazilian Law (Wolters Kluwer) and editor of LawsofBrazil.com.
Fabiano has acted for U.S. clients in cross-border matters before Brazilian courts for over two decades, including on some of the first Letters of Request submitted to Brazil under the Hague Evidence Convention. His New York admission means he understands U.S. federal civil procedure and can work directly with U.S. lead counsel without the translation layer that characterizes most cross-border correspondent relationships.
Deffenti Lawyers advises on Letters of Request under the Hague Evidence Convention, service of process under the Hague Service Convention, STJ recognition of U.S. judgments and arbitral awards, asset location and attachment, and the broader Brazilian legal context that affects U.S. litigation with a Brazilian connection.
Working on a case with a Brazilian connection?
Whether you need to serve a Brazilian defendant, obtain evidence in Brazil, or enforce a U.S. judgment, Deffenti Lawyers can assist from the first assessment through to execution.
This page is a summary only and does not constitute legal advice.
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