To STJ summoning by process agent is valid
On May 21st, the Brazilian Superior Court of Justice (“Superior Tribunal de Justiça” or “STJ”) understood that the service of a process made by a process agent in an agreement governed by foreign laws and entered into by a Brazilian party is valid. The decision is of fundamental importance for international agreements and will be detailed below!
The court decision occurred on an Internal Appeal in the Motion for Clarification in the Ratification of Foreign Court Decision No. 3384 (“Appeal”), in which two companies from the same economic group, one Brazilian company and one foreign company (“Appellants”) and, on the other side, a foreign bank and foreign company and a Brazilian bank (collectively “Appellee”), acted as parties, being such Appeal against the decision that granted the request for ratification of the foreign court decision.
The Appellants’ argument was based on two pillars: (i) the lack of a valid service of process; and (ii) the violation of Brazilian public order.
However, dismissing the Appeal, Minister Ricardo Villas Bôas Cueva, understood that:
i) Although the ratification of the foreign court decision is STJ’s jurisdiction, such jurisdiction is merely deliberative, that is, to verify whether the request meets the requirements of the governing legislation and whether there is no offense to national sovereignty, to human dignity, and the public order;
ii) In this sense, the decision was issued by a competent authority and did not fall within the scope of the exclusivity of Brazilian jurisdiction;
iii) The foreign court decision contained elements that proved the parties’ adequate service of process.
Regarding the service of process, the Minister clarifies that facility agreements, which are the subject of the lawsuit, were governed by English law, including that the service of process would occur through a process agent, with the parties having agreed that such service of process would be valid. Thus, according to STJ’s precedents, the service of process that occurred abroad must follow the laws of the country where the service of process occurred – which was the case, since it happened under the laws of England and with the terms agreed in the agreement.
Thus, the foreign court decision was ratified, giving validity to the service of process by process agent in an agreement governed by foreign laws.
