Its judiciary is regulated by the Federal Constitution, adopted in 1988. In general, the Brazilian litigation procedure involves a unique, statutory proceeding with specific steps and requirements that must be met in order to take a proceeding forward to final judgment. Although final decisions are, in general, based on an interpretation of the facts as applied to the law, it should be noted that courts are regularly engaging in researching doctrine and judicial precedents when making decisions.
Thus, the system of recursos repetitivos – an instrument to facilitate the judgment of similar cases by rendering a decision in one such case that is binding on all other – should be kept in mind. More so, the Brazilian system does not provide for jury trials in civil matters.
One reason that Brazil is a popular place to litigate is that its laws offer the same judicial remedies to both foreign and domestic entities. Available remedies include, but are not limited to, injunctions, declaratory action, collection procedure, action for both compensatory damages and indemnification, and action for exhibition. However, according to the Brazilian Civil Procedural Code (CPC), any plaintiff (both foreign and domestic) not present during the procedure, must post a bond, related to the payment of the legal costs and attorney fees of the other party or have real estate property in Brazil that can be used to ensure payment. Because of this rule, parties can rest assured that they will, at the very least, be able to collect their costs.
On the topic of foreign entities, the issue of choice of law is determined by article 9 of the Law of Introduction to the Civil Code. Accordingly, the law applicable to an agreement is the one from the place where the agreement was executed, concluded or established. When such an agreement is an international agreement, the parties involved are free to choose the applicable law and Brazilian law recognizes the chosen jurisdictions’ laws (with the exception to matters involving real estate located in Brazil).
Another unique facet to Brazilian litigation is that the law does not require – or even mention for that matter – mediation by the parties. However, the CPC does encourage parties to reach settlement prior to the evidentiary phase of a trial. More so, at any time prior to the judgment, parties are allowed to engage in independent negotiations for reaching an amicable settlement and, if successful, request a conciliation hearing in lieu of the trial.
Arbitration in Brazil is regulated by the Brazilian Arbitration Act (Law 9307/96), which states that “the arbitration award corresponds to a court judgment” and that it has “force as a judgment debt”. More so, an arbitration award rendered in Brazil is enforceable upon the filing of an action for execution before the empowered court, based on the internal rules of the Appellate Court of where the action is filed.
If an arbitration award was issued outside of Brazil (i.e., a foreign arbitration award), in order to be enforceable within Brazil the award must first be confirmed by the Superior Court of Justice via the Confirmation/Homologation of Foreign Judgment procedure (Article 35, Brazilian Arbitration Act; Constitutional Amendment number 45). In order to satisfy this procedure, the judgment must:
- Have been rendered by an empowered authority
- Parties must have been regularly served, or the default must have been officially recognized
- The judgment has to be final (i.e., unappellable), and
- The award must be authenticated by the Brazilian consul, followed by a foreign language translation by an official or sworn Brazilian Portuguese translator.
Interestingly, the procedure does allow for a partial confirmation, with the granting of provisional remedies. The purpose of this option is to ensure the effectiveness of the judicial relief expected by all involved parties.
Once the procedure is satisfied and the foreign arbitration award becomes final, an ‘elaboration’ of the certified copy of the judgment must be requested, which allows the attorney to proceed with the enforcement of the foreign award via the federal court empowered on the matter (i.e., having jurisdiction)
As a final note, the Brazilian Arbitration Act does allow for an arbitration proceeding to be initiated at any time during a litigation proceeding.
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