1)Summary:

Arbitration is the preferred method for resolving maritime claims, and for good reason.

However, there are situations where there may be no real dispute, but just a credit against a party that failed to pay it. And different legal systems deal differently as to how to allow a creditor in such situation to recoup its credit without unnecessary delays and costs.

For example, the Courts of common law countries can normally give a summary judgment, without a full trial, when it considers that the defendant has no real prospect of succeeding on its defence (eg, when there is no real disagreement or the law clearly favours the claimant)[1].

In the past, summary judgment was available before the English Courts even when parties had an arbitration clause. This possibility was removed by the Arbitration Act 1996, what was criticised by part of the legal community[2]. However, the idea that parties should not have to entertain a full arbitration when there is no real dispute remains, and the recent reform on the English Arbitration Act included express powers for arbitral tribunals to make an “award on summary basis” when “a party has no real prospect of succeeding in the defence of the claim or issue”[3].

Brazil, being a civil law jurisdiction, has a very different approach for the same issue. Its procedural law, for a long time[4], gives to certain types of credit documents a status similar to a judgment in what regards enforcement: they can be enforced directly by the Courts, without the need of a previous judgment ordering debtor to pay. Examples relevant to maritime creditors are ship finance documents, hire or freight in certain circumstances, and invoices for several types of services.

Importantly, a creditor holding such a credit document can apply to the Courts directly even if there is an arbitration clause. On the other hand, if debtor understands that it does have a defence, it has to commence arbitration to raise it, which will normally not stay the enforcement (thus protecting the parties’ interests to have any dispute decided in arbitration, in Brazil or abroad, under its proper law and applicable rules).

Bringing enforcement right away in Brazil may save time especially when the contract provides for arbitration abroad, because foreign arbitral awards have to be firstly recognised by the Superior Court of Justice[5] before they can be enforced[6], and just such recognition proceeding may take more than 1 year.

We intend to 1st explain this powerful tool, giving also an overview of the direct enforcement proceeding of certain credit documents in Brazil; then, in the second part, explain the interplay with arbitration clauses and parallel arbitration in Brazil or abroad; in the third part, give a bit more details as to the requirements for a creditor to be able to obtain direct enforcement; and, finally, give a few examples of maritime credits that can give access to such a tool.

2)Judicial and extrajudicial enforceable titles and overview of enforcement proceedings in Brazil:

Brazilian procedural law provides that the Brazilian Courts can enforce judicial and extrajudicial enforceable titles (títulos executivos judiciais and títulos executivos extrajudiciais).

The most obvious one is a court judgment, which is the 1st item in the list of judicial enforceable titles of article 515 of the Brazilian Civil Procedure Code (CPC)[7]. Other relevant items are arbitral awards, foreign (court or arbitral) judgments recognised by the Superior Court of Justice, and a court order that ratifies a settlement agreement.

Creditors recognised in such titles can apply to the Brazilian Courts for an enforcement order for debtor to pay[8]  the credit within 15 business days, failing which debtor will be also ordered to pay a fine of 10% plus attorneys fees of 10%, and the Court will then enforce the credit by seizing and, when necessary, selling debtor’s assets in order to repay the credit. In case the enforcement title is a court judgment from a Brazilian civil[9] court, such application can be made in the same records of the lawsuit that led to it, and debtor’s appointed lawyers in the case will receive the order[10] (there will be no need to serve debtor personally with it).

The room for challenging such enforcement is very limited: in summary, debtor can only argue that creditor’s calculation of the credit was wrong, or evidence that the obligation was extinguished or modified by an act that occurred after judgment (as payment, settlement, sett-off, application of statute of limitations, etc.), or raise some procedural defences (as lack of jurisdiction of the Court handling the enforcement). Such challenge should be brought in a submission in the same records of the enforcement proceeding within 15 business days from the date that payment should have been made (i.e., after the 15-business-day term mentioned in previous paragraph).

Further to that, Article 784 of the CPC lists extrajudicial enforceable titles, which are out-of-court documents acknowledging a credit that can also be enforced by the Courts, including: (i) bills of exchange, promissory notes, debentures, and cheques; (ii) public deeds or other public documents signed by the debtor; (iii) private documents signed electronically by debtor whose integrity is verified by a signature provider, or physically signed by debtor and two witnesses; (iv) the settlement agreement endorsed by the Public Prosecutor’s Office, the Public Defender’s Office, the Public Attorney’s Office, the lawyers of the transacting parties, or by a conciliator or mediator accredited by a court; (v) the contract secured by mortgage, pledge, or other real right of security; among others.

All the documents listed by Article 784 of the CPC, and also a few others listed in a few other statutes[11], when they document a clear, liquid and due credit[12], can be enforced directly by the Brazilian Courts. As mentioned, there is no need for the credit described in them to have been previously recognised by a Court in a judgment or any other type of order.

A creditor holding such extrajudicial enforceable title can bring a specific proceeding called Execução de Título Extrajudicial, in which debtor is served with an order to pay the credit within 3 days, or the Court will seize its assets.

If the debtor understands it has a defence, it should raise in another lawsuit, called Embargos à Execução, which it can file within 15 business days from service of the payment order mentioned above[13]. This suit will run in the same Court in parallel to the Execução. The room for defence in such suit is wider than in the challenge to an enforcement of a judicial enforceable title: as there is no previous judicial review of the credit or credit document, debtor will be able to raise any defence argument it could have raised in a standard lawsuit[14]. The burden of proof will normally rest with debtor.

The Embargos à Execução will not normally stay enforcement. Only when debtor can evidence fumus boni iuris (that its arguments will probably succeed) and periculum in mora (that irreparable harm is likely to be caused to it if enforcement is not stayed), and only after enough assets are seized in order to secure repayment[15], the Court will be able to stay enforcement until the Embargos suit is tried. In other words, debtor’s assets will continue to be seized by the Court, and sold, and creditor repaid while this suit is pending.

As it can be seen, Brazilian procedural law gives to certain credit documents a similar status to a judgment, thus shifting the scales in favour of a creditor holding one of them. It does not need to wait for a judgment to start enforcement and get repayment. Instead, the debtor is the one that will need to bring suit, and bear the burden of proof, to get a judgment that would prevent enforcement from continuing.

In the normally unlikely scenario that debtor succeeds in the Embargos à Execução, the Execução suit will be dismissed in total or in part, and creditor may be ordered to pay damages to debtor[16].[17]

3)What happens when there is an arbitration clause:

The Brazilian Superior Court of Justice (“STJ”[18]) has steadily held that an arbitration clause does not prevent the creditor from bringing an Execução de Título Extrajudicial against the debtor.

In the leading case that dealt with this matter in 2008[19], the 3rd Panel of the STJ held that the Court of Appeal of São Paulo had been correct in dismissing debtor’s appeal against a decision that had denied its request for an Execução to be dismissed solely because there was an arbitration clause in the contract between the partes. The STJ held that “it is unreasonable to require the creditor to be obliged to commence arbitration to obtain a judgment of certainty on an acknowledgment of debt that, in its view, is already contained in the enforceable title”. It further acknowledged that “the arbitrator does not have direct coercive power, and cannot impose, against the debtor’s will, restrictions on his assets, such as seizure, nor forced enforcement of is property”, citing provisions of the CPC and the Brazilian Arbitration Act (Federal Law 9,307/1996) that “require judicial proceedings for the forced enforcement of the right recognised in the arbitral award and for the implementation of other similar measures”. It also cited the opinion of a few Brazilian legal scholars.

Several other precedents with the same conclusion ensued, many of them making it clear, however, that the Courts have no jurisdiction to try any substantive defence that the debtor raises during enforcement. It means that the debtor will have to commence arbitration in order to have them heard, instead of filing Embargos à Execução before the Court.

On the same token, if Embargos suit is filed by debtor, the Court will have to dismiss it in favour of arbitration. As an example, the STJ dismissed an appeal against a decision that had done so in REsp 2,049,978/TO, holding that “substantive issues raised in the Embargos à Execução suit, which involve a discussion of the merits of the title (validity, interpretation, or nullity of the contract due to simulation), must be resolved before an arbitral tribunal”[20].

The Courts will keep jurisdiction only to try procedural issues related to the enforcement itself (as which assets to seize, how to sell them, etc.[21]).

As a final note, a creditor holding an extrajudicial enforceable title is not obliged to apply for Execução. Article 785 provides that “the existence of an extrajudicial enforceable title does not prevent a party from opting for ordinary proceedings in order to obtain a judicial enforceable title”. This article deals with judicial proceedings, but the same reasoning applies to credits linked to an arbitration clause: creditor can commence arbitration instead of bringing Execução, and await for an award which will be a judicial enforceable title, and then enforce the latter in the manner described in the previous chapter.

4)Other requirements:

As mentioned, creditor must hold a credit document listed in article 784 of the CPC (see part of the list in chapter 2 above) or in another statute, and such document should describe a clear, liquid and due debt. It comprises, for example, monthly/daily payments, fines, instalments, balance after acceleration, and so forth. It does not comprise, also as an example, compensation for damages that need to be evidenced and assessed.

And they can be electronic documents. In fact, all judicial proceedings in Brazil are now fully electronic, which means that the originals of physical documents are very unlikely to be needed (only PDF copies will suffice).

In case debtor is not obliged to pay until creditor performs its obligation, the creditor must evidence that it has fulfilled its obligation when requesting enforcement (article 787 of the CPC). This is common in service agreements, and it can also be the case of freight or hire. Such evidence has to be made by documents, as there is no room for hearing witnesses or any other type of evidence production in this type of proceeding.

Creditor does not need, for obvious reasons, to prove that debtor failed to pay. It will only argue how much it failed to pay, and debtor will have the burden to prove that payment was made, if it was the case.

When the extrajudicial enforceable title is a foreign document (i.e., signed outside of Brazil), the formation requirements set by the law of the place of origin must be met and Brazil be indicated as the place of performance of the obligation (the obligation to pay, which will be enforced by the Court). As to this last legal requirement, however, there is a precedent from STJ that mitigated it by holding that nowadays the place of performance of the obligation to pay is a fiction, because payments are almost always done via bank transfer. Taking this into consideration, it held that Brazil was the place of performance for the purpose of processing an Execução de Título Extrajudicial in a case involving a Brazilian-domiciled debtor who undertook the obligation to make a payment via wire transfer to a German bank account belonging to the foreign creditor (REsp 1,080,046/SP, tried on 23 September 2008 by the 3rd Chamber of the STJ).

Further to that, Brazilian citizens and companies increasingly sign documents using electronic systems, and when they do so there is good reason to say that they have signed the title in Brazil, even if creditor signed it abroad.

Whenever it is possible to get legal assistance, as it is common in finance deals for assets that will stay in Brazil (as vessels and platforms), the advice of Brazilian counsel is likely to be to include a clause giving creditor option to bring Execução de Título Extrajudicial in Brazil, normally with a choice of a more experienced Court in a big business centre for such and for any proceeding in support to the arbitration clause, to provide that Brazil is the place of payment (or that creditor can declare that it is at any time) and/or that debtor signed in Brazil, among other suggestions. All of this in parallel with the arbitration clause, which can provide for a seat abroad and choice of a foreign law.

5)Examples of maritime credits that can normally be enforced directly in Brazil, via Execução de Título Extrajudicial:

The most obvious example is ship finance documents, which almost always qualify as extrajudicial enforcement titles.

We have also seen cases of enforcement of English-law settlement agreements for unpaid hire/freight and that provide for arbitration in London in case debtor fails to pay the instalments, but that were signed electronically by the Brazilian debtor.

Another example is enforcement of unpaid electronic invoices issued in Brazil for crew management services connected to an agreement providing for English law and LMAA arbitration in London. These invoices (the credit that arises out from them) had been previously submitted to a Registrar of Protests (Cartório de Protesto de Títulos), which had then sent a letter to debtor demanding payment, failing which the credits were registered (in a system that made them public in Brazil). Such registration is requirement set forth by Federal Law 5,474/1968, which allows for Execução of invoices for services or delivery of goods.

In fact, there is no limit. Any type of maritime credit documented in an extrajudicial enforceable title can be enforced through Execução de Título Extrajudicial in Brazil.

6)Conclusion:

Creditors who hold maritime claims against Brazilian debtors, or who wish to seek enforcement on Brazilian assets of foreign debtors, should be aware that they may be able to apply for direct enforcement of their credit documents, without the need to commence arbitration and have to await for an award.

Apart from saving costs and time, since debtor has assets seized by the Court in an early stage, the prospects of a serious settlement normally are higher than when arbitration is pending.

This article detailed which credit documents normally give access to such expedited enforcement proceeding, the requirements that they need to fulfil, and gave an overview of the proceeding.

As shown in the article, bringing the direct enforcement proceeding will not give jurisdiction to the Brazilian Courts to hear the defences that debtor may have, which may be of concern for creditor. If debtor understand that it has any defence, it will need to commence arbitration (in Brazil or abroad, as provided in the clause) and it will be heard by the arbitral tribunal. And normally this will not stay the enforcement proceeding.

Footnote:

1 For example, see Civil Procedure Rules 24 in relation to England and Wales (https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24).

2 https://cms-lawnow.com/en/ealerts/1998/04/the-arbitration-act-1996-was-early-criticism-justified.

3 New section 39A to the Arbitration Act 1996, introduced by the Arbitration Act 2025.

4 The Civil Procedure Code 1939, which was the 1st Federal one in Brazil, already provided for it, but this type of proceeding existed before in laws governing certain types of credit instruments.

5 Article 105(I)(j) of the Brazilian Federal Constitution.

6 Before federal courts of first instance (Art. 109(X) of the Brazilian Federal Constitution.

7 Federal Law no. 13,105/2015.

8 Art. 523 of the CPC. There are different rules for enforcement of obligations to do, not to do or to deliver something, as well as for obligations to pay alimony or when debtor is the government or some types of state-owned entities.

9 As opposed to a criminal Court.

10 This will be made electronically in the same manner as the lawyers receive any order of the Court on behalf of the client who appointed them in the specific lawsuit.

1 The last item (no. XII) listed by Article 784 is “all other titles to which, by express provision, the law attributes executive force”. We will deal with a couple of them later in this article.

12 Article 783 of the CPC.

3 Only in extreme circumstances the Court can entertain a defence raised by debtor in the records of the Execução (i.e., without its bringing an Embargos suit), as in public order matters that the Court can entertain ex officio and which are proven immediately (without need for further evidence). One of the rare examples is when the credit is clearly time-barred.

4 I.e., a proceeding (as a collection suit) where debtor was served with an order to submit a defence and that will lead to a judgment at the end.

5 Or debtor submits acceptable security to the Court.

6 Article 776 of the CPC: “Claimant shall compensate the defendant for damages suffered when the judgment, after becoming final, declares the obligation that gave rise to the enforcement proceedings to be nonexistent, in whole or in part”.

7 And, as in any proceeding in Brazil, the losing party will be ordered to reimburse certain expenses (as court fees) and to pay attorney’s fees. As to the latter, in case of Embargos à Execução, it is many times a reversal of the order for debtor to pay fees of 10% of the credit to claimant’s lawyers, which is issued at the outset of the Execução (art. 827 of the CPC).

8 Superior Tribunal de Justiça, which is the highest instance in the Brazilian judiciary for interpretation of federal law in civil and commercial cases, including the CPC and the Brazilian Arbitration Act (Federal law no. 9,307/1996).

9 REsp 944,917/SP, tried on 18 September 2008 by the 3rd Panel of the Superior Court of Justice. The case involved a sale and purchase agreement of shares in a Brazilian company. Seller was then enforcing an unpaid part of the purchase price which had been acknowledged by the buyer in a document that signed by it and 2 witnesses, which (see above) is an extrajudicial enforceable title. And apparently there was an arbitration between the parties ongoing, aiming at forcing sellers to repurchase the shares or to indemnify buyers for company’s debts that were not disclosed, but the Court held that this would not prevent enforcement of the acknowledged debt.

20 Tried by the 3rd Panel of the STJ on 24 November 2025.

2 We make the caveat that it is not completely clear whether issues such as incorrect calculation of the debt and whether the document is or not an enforceable title (both not uncommon in Embargos à Execução) are within the jurisdiction of the Courts or the arbitral tribunal. For instance, in REsp 2,108,092/SP, tried on 16 April 2024, the 3rd Panel of the STJ held, when dismissing Embargos à Execução because of an arbitration clause, that the jurisdiction of the Court would be “limited to procedural matters, while substantive matters should be decided in the arbitration tribunal”, but this being an obiter dictum, as the Embargos were dismissed in total. A number of other precedents also held that the Courts would have jurisdiction for procedural issues, but without giving examples, as those cases dealt with what the Court considered only substantive issues. In REsp 2.032,246/DF, one of the opinions was that the allegation of miscalculation of the credit was a matter to be decided by the Court, but ultimately the case was remanded back to 1st instance without a decision on this matter.

Short biography:

Olympio Carvalho is a Brazilian-qualified lawyer, partner at Castro Barros Advogados in Rio de Janeiro, Brazil, and co-Head of the firm’s Maritime and Transport department, as well as also a partner within its Dispute Resolution group. Olympio holds an LL.M in International Business Transactions from LSE – London School of Economics and Political Science (2006), and a Master in Law (Mestrado em Direito) from the UERJ – University of the State of Rio de Janeiro (2011), among other degrees. He is Vice-Chair of the Maritime and Transport Committee of the IBA – International Bar Association, and a member of the Commission on Maritime, Ports and Sead Law of the Rio de Janeiro Chapter of the Brazilian Law Society (OAB/RJ), among other institutions.

He has been recognised as Thought Leader in Shipping since in 2023 by WWL (Who’s Who Legal /LatinLawyer), after being for recommended since 2020. He is also recommended in Shipping by Legal 500 since 2014, Chambers and Partners since 2018, Best Lawyers since 2020 and by Leaders League since its 1st guide on Shipping. Clients cite that he “enjoys a stellar reputation among peers who highlight his expert handling of sophisticated commercial matters in the maritime industry” (WWL 2021), he is “a brilliant lawyer and an individual with the ability to respond well to what clients want” (Chambers 2023), who “excels in maritime litigation and advice” (Legal 500 2022). He is also recommended by Legal 500 in Dispute Resolution since 2017.

[1] For example, see Civil Procedure Rules 24 in relation to England and Wales (https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24).

[2] https://cms-lawnow.com/en/ealerts/1998/04/the-arbitration-act-1996-was-early-criticism-justified.

[3] New section 39A to the Arbitration Act 1996, introduced by the Arbitration Act 2025.

[4] The Civil Procedure Code 1939, which was the 1st Federal one in Brazil, already provided for it, but this type of proceeding existed before in laws governing certain types of credit instruments.

[5] Article 105(I)(j) of the Brazilian Federal Constitution.

[6] Before federal courts of first instance (Art. 109(x) of the Brazilian Federal Constitution).

[7] Federal Law no. 13,105/2015.

[8] Art. 523 of the CPC. There are different rules for enforcement of obligations to do, not to do or to deliver something, as well as for obligations to pay alimony or when debtor is the government or some types of state-owned entities.

[9] As opposed to a criminal Court.

[10] This will be made electronically in the same manner as lawyers receives any order of the Court on behalf of the client who appointed them in the specific lawsuit.

[11] The last item (no. XII) listed by Article 784 is “all other titles to which, by express provision, the law attributes executive force”. We will deal with a couple of them later in this article.

[12] Article 783 of the CPC.

[13] Only in extreme circumstances the Court can entertain a defence raised by debtor in the records of the Execução (i.e., without its bringing an Embargos suit), as in public order matters that the Court can entertain ex officio and which are proven immediately (without need for further evidence). One of the rare examples is when the credit claim is clearly time-barred.

[14] I.e., a proceeding (as a collection suit) where debtor was served with an order to submit a defence and that will lead to a judgment at the end.

[15] Or debtor submits acceptable security to the Court.

[16] Article 776 of the CPC: “Claimant shall compensate the defendant for damages suffered when the judgment, after becoming final, declares the obligation that gave rise to the enforcement proceedings to be nonexistent, in whole or in part”.

[17] And, as in any proceeding in Brazil, the losing party will be ordered to reimburse certain expenses (as court fees) and to pay attorney’s fees. As to the latter, in case of Embargos à Execução, it is many times a reversal of the order for debtor to pay fees of 10% of the credit to claimant’s lawyers, which is issued at the outset of the Execução (art. 827 of the CPC).

[18] Superior Tribunal de Justiça, which is the highest instance in the Brazilian judiciary for interpretation of federal law in civil and commercial cases, including the CPC and the Brazilian Arbitration Act (Federal law no. 9,307/1996).

[19] REsp 944,917/SP, tried on 18 September 2008 by the 3rd Panel of the Superior Court of Justice. The case involved an agreement for the sale and purchase of shares in a Brazilian company. Seller was then enforcing an unpaid part of the purchase price which had been acknowledged by the buyer in a document signed by it and 2 witnesses, which (see above) is an extrajudicial enforceable title. And apparently there was an arbitration between the parties ongoing, aiming at forcing sellers to repurchase the shares or to indemnify buyers for company’s debts that were not disclosed, but the Court held that this would not prevent enforcement of the acknowledged debt.

[20] Tried by the 3rd Panel of the STJ on 24 November 2025.

[21] We make the caveat that it is not completely clear whether issues such as incorrect calculation of the debt and whether the document is or not an enforceable title (both not uncommon in Embargos à Execução) are within the jurisdiction of the Courts or the arbitral tribunal. For instance, in REsp 2,108,092/SP, tried on 16 April 2024, the 3rd Panel of the STJ held, when dismissing Embargos à Execução because of an arbitration clause, that the jurisdiction of the Court would be “limited to procedural matters, while substantive matters should be decided in the arbitration tribunal”, but this being an obiter dictum, as the Embargos were dismissed in total. A number of other precedents also held that the Courts would have jurisdiction for procedural issues, but without giving examples, as those cases dealt with what the Court considered only substantive issues. In REsp 2.032,246/DF, one of the opinions was that the allegation of miscalculation of the credit was a matter to be decided by the Court, but ultimately the case was remanded back to 1st instance without a decision on this matter.