Cost orders arising from anti-suit injunction proceedings are recognised for the first time by the Brazilian courts

Olympio Carvalho
Castro Barros Advogados, Rio de Janeiro
olympio.carvalho@castrobarros.com.br

Camilla Werneck
Castro Barros Advogados, Rio de Janeiro
camilla.werneck@castrobarros.com.br

Ian Thomaz
Castro Barros Advogados, Rio de Janeiro
ian.thomaz@castrobarros.com.br

Background of the case

The underlying dispute arose from a maritime collision within Singaporean waters. Chubb Seguros Brasil SA brought a claim against Mizuho Sangyo Co Ltd and Fair Wind Navigation SA, among others, before the courts of the state of São Paulo, Brazil, despite the arbitration clause contained in the bill of lading. For that purpose, Chubb argued that, as subrogated cargo insurers, it was not bound by the arbitration clause.

As a result, Mizuho and Fair Wind applied for an anti-suit injunction before the High Court in London, seeking to have Chubb compelled to discontinue the Brazilian proceedings.

The High Court in London granted the anti-suit injunction (two sets of them). Chubb then complied with the order: it withdrew its claim before the Brazilian courts and so the Brazilian lawsuit was dismissed. Chubb, however, did not abide by the cost orders issued by the English court, for reimbursement of part of legal expenses incurred by Mizuho and Fair Wind in the proceedings before the High Court in London.

The recognition proceeding in Brazil

In light of Chubb’s failure to pay, Mizuho and Fair Wind applied for the Brazilian Superior Court of Justice to have the two relevant foreign judgments (cost orders) issued against Chubb by the High Court in London, recognised in Brazil.

The application did not concern the injunctions themselves – which Chubb had already complied with – but only the payment orders granted by the English courts.

In its defence, Chubb argued, among other things, that the recognition violates Brazilian sovereignty by privileging English sovereignty, and that the anti-suit injunction would be a way of forcing all claims relating to the maritime transport company’s civil liability to be brought exclusively in the English courts. It also argued that recognising the judgments would violate the San José Pact of Costa Rica, which prohibits the arrest of individuals for failure to pay financial debts.

These arguments, however, were all dismissed by the Brazilian Superior Court of Justice.

Following a favourable opinion issued by the Public Prosecutor’s Office, acknowledging that all relevant formal requirements were met, the Brazilian Superior Court of Justice recognised the foreign judgments on the grounds that, in this type of proceedings, the courts cannot re-examine their merits. Consequently, as the English court’s judgements met the formal requirements set forth in the Brazilian Code of Civil Procedure, such as having been issued by a competent foreign authority and not offending public order, there is no obstacle to their recognition and enforcement in Brazil.

All appeals subsequently filed by Chubb have been dismissed by the Superior Court of Justice and, more recently, by the Supreme Court, and this proceeding came to an end in March 2025. Mizuho and Fair Wind are now enforcing the decision before a federal court of first instance, which is the one with jurisdiction to do so after the foreign judgment has been recognised.

Conclusion

This decision is a landmark in Brazilian private international law. It signals in particular its courts’ growing openness to international judicial cooperation, particularly in cases involving transnational disputes. It must be noted that Brazil has no judicial cooperation treaty with the United Kingdom concerning civil and commercial cases.

Furthermore, the recognition of these cost orders may encourage foreign parties to pursue enforcement in Brazil, reducing the risks associated with international litigation.