Judicial assistance between the United States and Brazil is governed by the Vienna Convention on Consular Relations (VCCR)(Article 5(f)), 21 UST 77, TIAS 6820, 596 U.N.T.S. 261; the to the Inter-American Convention on Letters Rogatory and Additional Protocol to which the United States and Brazil are parties (the provisions on service of process only), and the U.S.- Brazil Treaty on Mutual Legal Assistance in Criminal Matters Treaty Doc. 105-42 105th Cong. 2nd Sess., Exec. Rept 105-22, 105th Cong, 2nd Sess.
Brazil is not a party to the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters. The United States and Brazil are parties to the Inter-American Convention on Letters Rogatory and Additional Protocol. The United States only has a treaty relationship with countries party to both the Convention and the Additional Protocol, which relate to service of process. The United States is not a party to the obtaining evidence provisions of this treaty. The U.S. Central Authority for the treaty is the U.S. Department of Justice, Civil Division, Office of Foreign Litigation, Washington, D.C. Note: Service of process in Brazil pursuant to the Inter-American Convention on Letters Rogatory and Additional Protocol is problematic. Requests can take more than 3 years to complete. According to the U.S. Department of Justice (the U.S. Central Authority) since May 2003, of 100 requests for service under that Convention that were transmitted only 2 from the United States have been successfully executed in Brazil. Service by mail is not recognized in Brazil and therefore may be problematic if the U.S. litigant will eventually seek enforcement of a U.S. judgment in Brazil. The United States continues to approach the Government of Brazil on the diplomatic and consular level and through our mutual central authorities for the Convention about this issue.
Service of Criminal Subpoenas:
U.S. consular officers are permitted to serve criminal subpoenas on U.S. citizens and U.S. Lawful Permanent Residents abroad pursuant to 22 CFR 92.86, when specifically authorized by the Department of State.
Taking Depositions of Willing Witnesses:
Brazil is not a party to the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters. The United States is not a party to the evidence provisions of the Inter-American Convention on Letters Rogatory. Brazilian authorities do not permit persons, such as American attorneys, to take depositions for use in a court in the United States before a U.S. consular officer, with the assistance of a Brazilian attorney, or in any other manner. Brazilian law views the taking of depositions for use in foreign courts as an act that may be undertaken in Brazil only by Brazilian judicial authorities. The Government of Brazil asserts that, under Brazilian Constitutional Law, only Brazilian judicial authorities are competent to perform acts of a judicial nature in Brazil. Brazil has advised it would deem taking depositions in Brazil by foreign persons to be a violation of Brazil’s judicial sovereignty. Such action potentially could result in the arrest, detention, expulsion, or deportation of the American attorney or other American participants. The United States recognizes the right of judicial sovereignty of foreign governments based on customary international law and practice; See , e.g., the Restatement (Third) of Foreign Relations Law (1987). It is the State Department’s understanding that the Brazilian prohibition on taking depositions by foreign persons extends to telephone or video teleconference depositions initiated from the United States of a witness in Brazil. The U.S. Embassy or Consulates in Brazil could in no way participate in, or otherwise sanction, such a proceeding. The State Department advises U.S. citizens contemplating participation in such a proceeding, without Brazil’s concurrence, obtained through diplomatic channels, to consider carefully the possible legal consequences of doing so. Requests for Brazilian judicial assistance in taking a deposition must be addressed to the Ministry of Justice (Ministerio da Justica, Esplanada dos Ministerios – Bloco T, 70064-900 – Brasilia, DF, Brazil and should be made after consultation with a Brazilian attorney. On May 24, 2001 and October 29, 2001, the U.S. Department of State executed two declarations at the request of the U.S. Department of Justice filed in the United States District Court for the District of New Jersey in the civil tax matter of Frank Wheaton, III v. Porreca, et al; Civil No. 00-2205; United States v. Porreca; Civil No. 99-5943 regarding the problems inherent in seeking to obtain evidence in Brazil.
Compulsion of Evidence:
Brazil is not a party to the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters. Compulsion of evidence from an unwilling witness in civil or commercial matters must be taken before a Brazilian court pursuant to a letter rogatory in accordance with Article 5(j) of the VCCR.
Preparation of Letters Rogatory for Use in Brazil:
Letters Rogatory should be submitted in duplicate in English with Portuguese translations and may be transmitted via diplomatic channels from the U.S. Department of State, Bureau of Consular Affairs, Overseas Citizens Services, Office of American Citizens Services and Crisis Management, Inter-American Division, 1-888-407-4747. Letters rogatory for compulsion of evidence should be transmitted to the U.S. Department of State, Bureau of Consular Affairs, Overseas Citizens Services, Office of American Citizens Services and Crisis Management, Western Hemisphere Division, CA/OCS/ACS/WHA. Mailing address: SA-29, 4th Floor, 2201 C Street N.W., Washington, D.C. 20520. Courier service address: 2100 Pennsylvania Avenue N.W., Washington, D.C. 20037. Fees: The consular fee for letters rogatory is set forth in 22 CFR 22.1. The current fee provided in 22 CFR 22.1 Schedule of Fees item 51 is $735.00, which should be furnished in the form of a certified or corporate check payable to the U.S. Embassy. No fees are normally charged for letters rogatory at the request of U.S., state or local government officials or at the request of parties in criminal cases that have been found to be indigent by a court.
U.S. federal or state prosecutors should also contact the Office of International Affairs, Criminal Division, Department of Justice at (202) 514-0015 for guidance about the Treaty between the Government of the United States of America and the Government of Brazil on Mutual Legal Assistance in Criminal Matters Treaty Doc. 105-42 105th Cong. 2nd Sess., Exec. Rept 105-22, 105th Cong, 2nd Sess. The treaty entered into force February 21, 2001.
Brazil Process Service
Defense Requests in Criminal Matters:
The U.S. Department of State expects criminal defendants, or their defense counsel, who wish to request judicial assistance in obtaining evidence or in effecting service of documents abroad in connection with criminal matters to make such requests pursuant to letters rogatory in accordance with Article 5(j) of the VCCR. See Preparation of Letters Rogatory for Use in Brazil above.
Authentication of Documents:
Brazil is not a party to the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters. Documents issued in the United States may be authenticated for use in Brazil by (a) contacting the U.S. Department of State Authentications Office and (b) then having the seal of the U.S. Department of State authenticated by the Embassy of Brazil in Washington, D.C. Documents issued in U.S. states must first be authenticated by the designated state authority, generally the state Secretary of State. See the National Association of Secretaries of State, Notary Public Administrators page for information about the official in the U.S. state, territory or outlying possession designated to authenticate state documents. For additional information about authentication of documents see web page notarial and authentication feature. Additional guidance for consular officers about authentication of documents is available at 7 Foreign Affairs Manual 870.
Enforcement of Judgments:
There is no treaty in force between the United States and any country on the reciprocal enforcement of judgments in general.
Lists of Attorneys in Brazil:
The U.S. Embassy is located at The U.S. Embassy is located in Brasilia at Avenida das Nacoes, Lote 3, telephone 011-55-61-3312-7000, after-hours telephone 011-55-61-3312-7400.
There are consulates in the following cities:
Recife: Rua Goncalves Maia 163, telephone 011-55-81-3416-3050, after-hours telephone 011-55-3416-3060; web site at http://www.embaixada-americana.org.br/index.php?itemmenu=161&submenu=14&action=recife.php. Consular Section public hours are 1:00 p.m. – 4:00 p.m. Monday through Friday except Brazilian and U.S. holidays.
Rio De Janeiro: Avenida Presidente Wilson 147, telephone 011-55-21-2292-7117, after-hours 011-55-21-2220-0489; web site at http://www.embaixada-americana.org.br/index.php?itemmenu=83&submenu=107&action=rio.php. Consular Section public hours are 8:30 a.m. – 11:00 a.m. (passports and reports of birth by appointment) and 1:00 p.m. – 3:00 p.m. (notary services), Monday through Friday, except Brazilian and U.S. holidays. Non-emergency passports and reports of appointments should be done by appointment; please request at firstname.lastname@example.org.
Sao Paulo: Rua Henri Dunant, 500 Barrio Chacara Santo Antonio, telephone 011-55-11-5186-7000, after hours telephone 011-55-11-5181-8730; web site at https://br.usembassy.gov/. Consular Section public hours are 8:30 a.m. -11:30 a.m., Monday through Friday and 2:00 p.m. -3:30 p.m., Monday, Wednesday, and Friday except Brazilian and U.S. holidays. Non-emergency services are done by appointments, please request at ACSAPPTSPL@state.gov, by phone: 11-5186-7315 or by fax: 11-5186-7159.
There are Consular Agencies in:
Belem: Edificio Sintese 21, Av. Conselheiro Furtado 2865, Rooms 1104/1106; telephone 011-55-91-3259-4566.
Manaus: Rua Franco de Sa, 230 Sao Francisco, Edificio Atrium, Rm. 306; telephone 011-55-92-3611-3333.
Salvador da Bahia: Av. Tancredo Neves, 1632, Rm. 1401 – Salvador Trade Center – Torre Sul, Caminho da Arvores; telephone 011-55-71-3113-2090/2091/2092.
Fortaleza: Av. Santos Dumont 2828 s.708 – Aldeota; telephone 011-55-85-3486-1306
Porto Alegre: The Instituto Cultural Brasil-Norteamericano, Rua Riachuelo, 1257, Centro; telephone 011-55-51-3226-3344.
U.S. Government Links
Dolinger, Application, Proof, And Interpretation Of Foreign Law: A Comparative Study In Private International Law, 12 Ariz. J. Int’l & Comp. Law 225 (1995).
Dolinger and Tiburcio, The Forum Law Rule in International Litigation–Which Procedural Law Governs Proceedings to be Performed in Foreign Jurisdictions: Lex Fori or Lex Diligentiae?, 33 Tex. Int’l L.J. 425 (1998).
Romano, The 1996 Brazilian Commercial Arbitration Law, 5 Ann. Surv. Int’l & Comp. L. 27 (1999)
The Legal System of Brazil, 40 St. Louis L.J. 1337 (1996)
Ferguson and Pearl, Practicing Law In The Americas: The New Hemispheric Reality: Article: International Litigation in the Hemisphere, 13 Am. U. Int’l L. Rev. 953 (1998).
Kim, The Inter-American Convention and Additional Protocol on Letters Rogatory: The Hague Service Convention’s “Country Cousins”?, 36 Colum. J. Transnat’l L. 687 (1998).
Brazil Process Service