BRAZIL Law and Practice Contributed by: Renata Iezzi, Nicole René Gomes e Cunha and Marcela Correa, Basch & Rameh
Aircraft do not need to be physically located in Brazil for deregistration purposes. If a lessor requires a certificate of airworthiness for export to the next jurisdiction of registration, it must be obtained prior to deregistration. 2.6.2 Lessor Taking Possession of the Aircraft See 2.6.1 Restrictions on Lessors’ Abilities . 2.6.3 Specific Courts for Aviation Disputes No specific specialised courts decide aviation dis - putes and enforcement, which are adjudicated in state courts in Brazil as disputes between private parties. 2.6.4 Summary Judgment or Other Relief A summary judgment is possible but rare in Brazil, and almost unheard of in aircraft repossession cases. It is common to obtain an interim repossession order quickly if the lease default is objectively demonstrat - ed. These orders are not equivalent to summary judg - ments because they are issued before the lessee has had an opportunity to present a defence. According to Brazil’s Cape Town Convention Declarations, lessors are entitled to “speedy relief”, defined as ten working days. In theory, a pre-judgment attachment for a monetary award based on a lease default should be possible, but they have only been sought or obtained by a les - sor in a small number of cases. 2.6.5 Domestic Courts’ Approach to Foreign Laws and Judgments Brazil’s declarations to the Cape Town Convention reinforce the principle of the parties’ contractual free - dom to elect the governing law for lease agreements. Likewise, a submission to a foreign jurisdiction should be binding and upheld by domestic courts. Notwith - standing the Cape Town Convention’s express recog - nition of exclusive jurisdiction for certain disputes, it is not clear whether the Brazilian judiciary would stay a similar action first filed abroad. The procedure to enforce foreign judgments (described in 2.6.6 Domes- tic Courts’ Recognition of Foreign Judgments/ Awards ) is slow and rarely appropriate in aircraft lease disputes.
In June 2024, the Brazilian Code of Civil Procedure was amended to stipulate that courts adjudicating contractual disputes should have a relationship to the parties or the location where the contractual obli - gations are to be performed. This requirement of a contact is contrary to the terms of Article 42 of the Cape Town Convention, which expressly provides that parties’ freedom to elect a jurisdiction is complete regardless of whether the venue has a relationship to the transaction. Most aircraft leases include exclusive or non-exclu - sive elections of courts located in New York or Eng - land to resolve disputes. Under the new drafting of the Brazilian Code of Civil Procedure, it is possible that a Brazilian court might not recognise the validity of such a choice if none of the parties is domiciled or otherwise located in New York or England (as appli - cable), or if none of the contractual obligations, such as payments, are due to be performed in the chosen jurisdiction. Considering that the Cape Town Convention is a spe - cific law intended to apply narrowly to particular types of aircraft contracts, its terms should have primacy over the new law. However, as the change is still very recent, there have not yet been any tests to determine how Brazilian courts might consider the applicability of the new provisions of the Code of Civil Procedure to aircraft agreements. See also 2.6.11 Lessees’ Entitlement to Claim Immu- nity . 2.6.6 Domestic Courts’ Recognition of Foreign Judgments/Awards A foreign judgment will be valid in Brazil only after ratification by the Superior Court of Justice. The pro - cedure does not re-examine a judgment’s merits, pro - vided it meets the following formal requirements: • compliance with formalities under the laws of where it was rendered; • proper service of process on the parties or after sufficient evidence of the parties’ absence, pursu -
ant to applicable law; • not subject to appeal;
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