O estado brasileiro como parte em litígios judiciais transnacionais em matéria civil e comercial: a submissão da República Federativa do Brasil às jurisdições estrangeiras

Abstract

The performance of Brazil in foreign jurisdictions is a matter of growing importance in the contemporaneity. It is wrong to say that the interests of Federative Republic of Brazil only can be discussed inside of its own Judiciary. The intensification of brazilian state acting as a private actor led to the increase of judicial claims against it which, considering the rules of international civil procedure, can be filled in the courts of other states rather than in brazilian Judiciary. Therefore, an overturn in the classical understanding that a sovereign state cannot be subjected to the courts of other sovereign country – jurisdictional immunity of states – is perceived nowadays, especially because of the fundamental right of access to justice. Nevertheless, many obstacles and peculiarities still resists when a state is a part in a judicial claim noteworthy the distinction of the acts of states in jure imperri and jure gestionis. Bearing this in mind, this essay aims to investigate, considering the existence of the Department of International Affairs from Attorney General’s Office, in which situations Brazil can participated as author or defendant in judicial claims on foreign courts. First of all, an analysis of domestic laws is made to demonstrate that brazilian state is authorized to fill actions abroad or explicitly waiver its jurisdictional immunity to defend its interests in other courts. After that, an investigation caseby-case is made to understand the treatment conferred by foreign courts to the brazilian state and what was their comprehension of brazilian jurisdictional immunities. In the second part of this dissertation, an analysis of enforcement of decisions against the state is made. Some attempts of expropriate the brazilian state abroad is presented and an examination of the circumstances shows how Brazil dealt with the situation. In the last part, is demonstrated the possibilities of recognition and enforcement of foreign decisions against the Federative Republic of Brazil in the domesctic courts, taking in mind the prospects criated by the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgements in Civil or Commercial Matters.