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International Law is the body of rules and norms that regulates activities carried on outside the legal boundaries of countries. In particular, it regulates three international relationships between: 1) Nation and Nation; 2) country and persons and 3) persons and persons. Nevertheless, two divisions are being called to distinguish it, which are Public and Private International Laws. Public International Law deals primarily with the rights and duties of Nations and intergovernmental organizations as between themselves. Private International Law deals with the rights and duties of individuals and non governmental organizations in their international affairs. For instance, among Public International Laws are: National territory, State responsibility to aliens, Law of the sea, Law of war, international dispute settlement, etc. Among Private International Law are: 1) noncommercial -- nationality, marriage, divorce and inheritances and 2) commercial -- contracts and sales, transportation, money and baking, financing, security regulations, intellectual property, antitrust, antifraud and taxation.
The principles of Private International Law and jurisdictions are reached
in the Law of Introduction to the Civil Code and the Code of Civil Procedure.
Jurisdiction, as the power of the court to decide a legal issue, defines whenever the country’s law is applicable in a certain case. Particularly, issues between Nations are consequences of their sovereignty. Therefore, Brazilian laws provide that Brazil’s courts have exclusive jurisdiction to decide: 1) actions relating to international agreements involving governmental entities; 2) actions relating to real property located in Brazil; 3) probate proceedings of a deceased person’s Brazilian estate, even though the deceased was a foreign and resided outside the country. Nonexclusive jurisdiction takes place whenever: 1) the defendant is domiciled in Brazil; 2) the obligation is to be performed in Brazil; 3) the actions result from a fact that occurred or an act performed in Brazil.
Choices of Law in contracts are moreover being used to choose a country’s
law and its jurisdiction; however, under Brazil’s law this is not possible,
unless in arbitration settlement. This essay is still an issue among doctrines
(see International Contracts).
The Right of Persons Brazil’s law establishes that the law of the country where a person is domiciled is applicable to its legal identity, capacity and family rights. "Person" here includes individuals, labor organizations, partnerships, associations and corporations. Therefore, the law of the country where a corporation or partnership is from, will determinate: - corporation/partnership entity, name; - corporation/partnership agreement; - personal liability as the power to be a legal representative; - corporation/partnership assets, and - bankruptcy.
Requirements For Individuals To Sue There are no special requirements for a foreign resident to sue in Brazil, but a deposit covering the costs and legal fees of the other party. This is only necessary either if the plaintiff resides abroad or leaves the country during the trial or he/she does not have real property in Brazil that covers the payment. Property The properties are governed by the law of the place where it is situated. Therefore, Brazilian property is ruled by Brazil’s law, either personal or real. On the other hand, those personal assets that the owner carries outside Brazil’s territory will be treated under the country’s law where the owner is located.
By contrast, aircraft and ships will be treated under the law of the
country where the registers were done.
An International Contract will "touch" at least two different legal systems and, therefore, each nation will regulate whenever it has jurisdiction. Our system does not permit the choice of law under contracts, unless it is done under arbitration . Brazil’s law says that the place where the agreement was settled (officially signed) has jurisdiction to judge it. By way of illustration, a situation where two individuals agree choosing the law of Brazil in contract and sign it in Europe, it will not be applicable. Brazilian court will not have jurisdiction in this case. On the other hand, if it is sign under Brazil’s territory, despite the choice of law, Brazil’s laws will be enforced and our courts will have jurisdiction over the issue. However, there are some exceptions, such as: - labor international contracts (will be treated under the law of the territory where the execution takes place); - international technology transfer, and - convention that rules in a different way and which Brazil was part of it. Despite the choice of law it is also possible to import some rules of other systems either writing it down in the contract or by remission (not recommended). Specifically, if an international contract will be executed in Brazil
and the other legal system requests some formal act, it will be respected
by Brazil’s Law. In addiction, it is also necessary to choose the state
or judicial district in which an action may be most appropriately brought,
considering the best for both parties.
Foreign Judgment will be enforced in Brazil for its execution. However, it will depend on confirmations by the Federal Supreme Court (STF). Writ of execution is a formal process evidencing the debt of the defendant which enforce the payment by issuing an authorization to take the property of the defendant, unless the debt is satisfied. Before the judgment is submitted to STF it must be authenticated by the nearest Brazilian consulate and it must be officially translated. The judgment and the foreign law will be verified under Brazilian jurisdiction and if Brazil’s court has it over the issue the judgment will not be recognized. Nevertheless, some requirements shall be verified in order to its confirmation, such as if: - the judgment is final; - the judgment is in proper form for its execution at the place where it was rendered; - the foreign decision has been judged by a competent court; - the process notices of the parties have been done in a proper way; and if - the foreign decision is not against Brazilian sovereignty, public policy or good morals. From here on STF shall issue a notice order to the defendant who may entitle to challenge the request of confirmation. After all this, STF will confirm the foreign decision that shall be enforced by Brazilian process of execution. All payments must be made in Brazilian currency that is called as REAL (R$). On the payment day the amount will be exchanged based on official rate and its remittance will depend upon authorization of the Central Bank of Brazil. Introduction Law of Civil Code, the Internal Statute of STF and the
Civil Procedure Code provide these basic conditions
Foreign arbitration is now ruled by the new issued law nº 9307/96. The approval by our Congress of the model-law developed by ONU - UNCITRAL Commission (with Brazil participation) shows the intention of Brazil, to reach the harmony among other nations in international law issues. According to this new situation, a foreign arbitral award does not need double confirmation (Foreign Court and STF). It is only necessary the confirmation of the Brazilian Federal Supreme Court in order to enforce and execute the award. However, arbitration in Brazil is only allowed in issues over disposable patrimony rights. In other words, this will include business transactions, including some labor and consumer relations. Therefore, a foreign arbitral award shall only be recognized if the issue consists of these rights. Before the award is submitted to STF it must be authenticated by the nearest Brazilian consulate and it must be officially translated. After the STF confirmation the award will have the same power as a domestic award and it can be executed by the judicial power. Under this law is now possible to choose the legal system or the law, which will be based the award. The parties can not only choose the law system, but also international rules (ICC, for instance). Despite the laws or rules it is possible to mix it within an authorization providing the arbitrator the power to decide on equity (fairness), or either according to usage or custom (common practices). Requirements to invoke this law, as well as some information, are listed below: - the parties must agree to submit to arbitration in a written document; - it can be agreed in a contract or later when the conflict was settled; - the number of arbitrator has to be uneven; - attorneys are not necessary, but are recommended; and - the award shall be issue by a deadline of six months. The judicial power works along with arbitration and it can be invoke in some cases. The award has the same power as a judgment and shall be enforced in Brazil for its execution.
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