American Chamber of Commerce for - AMCHAM International Affairs Department Brazil, 2015/2016

*This guide is part of the project ACKNOWLEDGEMENTS

The American Chamber of Commerce for Brazil, being the largest Amcham outside the United States is constantly serving its members by building bridges for Brazilian businesses worldwide. Our foreign investment attraction efforts have also been a key leading point for Amcham. The How to series is part of this initiative. With the support of some of our corporate members, the States of the country and now some cities, we are putting together strategic information on the most various aspects of doing business in Brazil and its opportunities. As part of BRICS (Brazil, Russia, India, China and South Africa) and representing the 7th largest economy of the world, being also the 5th biggest destination for foreign investment, Brazil has clearly demonstrated its importance in the global market. Furthermore, the medium and high classes are increasing, which creates a solid internal market and contributes to maintain good results in the economy. It is now more than ever a strategic time for businesses opportunities in Brazil. We welcome you and hope that the information you are about to read serves you best.

Gabriel Rico - CEO, Amcham Brasil

Teixeira, Martins & Advogados law firm provides personalized legal services to Brazilian and foreign clients from a range of fields, and is renowned for its performance both in litigation, for the settlement of disputes, and consulting. We understand the importance of providing clients with information for a better understanding of the complex Brazilian Legal System, thereby facilitating decision making and business, including dispute settlement. In this respect, our partnership with Amcham provides an opportunity to clarify the legal aspects, opportunities and alternate methods under Brazilian Law for the settlement of disputes, thus increasing the chances of a successful outcome in each specific situation.

Roberto Teixeira, Founding Partner, Teixeira, Cristiano Zanin Martins - Partner, Teixeira, Martins & Advogados Martins & Advogados LAW CONTENT

01 GENERAL ASPECTS OF BRAZILIAN LAW 06

02 STRUCTURE OF THE BRAZILIAN LEGAL SYSTEM 08

03 METHODS OF DISPUTE RESOLUTION IN BRAZIL 11

04 JUDICIARY 13

05 ARBITRATION AND MEDIATION 22

06 ADMINISTRATIVE PROCEEDINGS 30

07 COMMON PRINCIPLES OF JUDICIAL AND ADMINISTRATIVE PROCEEDINGS 31

08 FINAL REMARKS 33

09 ABOUT OUR SPONSOR 34 6 LAW following emerge: in ordertograntlegalsafety totherelationships, a resultoftheaforementionedAs principle of legality, other legalrules,embracesassourcesofLaw: The Brazilian Legal System,apartfromthe Statuteand the lawfornotbeingcognizantofit. basic principle, nooneisexcusedfromcomplyingwith anything if notbyvirtue of law. Inaccordance with this to whichnooneisalloweddoorrefrainfromdoing Brazilian Law embracestheconceptoflegality, according Vested right;and The perfectlegalact; of thesameeffects renderedbytheCourts. Case law, whichencompassesrepeated judgments work preparedbylegalscholars;and Legal literature,characterizedbyopinionsandlegal the everydaylifeofonesociety; consistent, public practice of acts incorporated into Custom, which is nothing more than a continued, GENERAL ASPECTSOFBRAZILIANLAW are intended to interpret the law and fill eventual legal gaps. The other sources of Law, particulary doctrine and case law, the predominantsourceofLaw. texts are prepared by proper legislative bodies and are used secondary value to theother sources of Law, i.e.,statutory of thelegislativeprocess(Statute),andbyattributing previously mentioned,ischaracterizedbythesupremacy The Roman-Germansystem,currentlyinforceBrazil, as Law systems. between theRoman-GermanorCivilLawandCommon Therefore, itisworthdescribingthemaindifferences Law system. the adoptionofRoman-GermansystemorCivil The adoption of the principle oflegality by Brazil means may nolongerbecontestedbyanyappeal. which acourtrulingisunchangeableandindisputable law. Finally, resjudicataisaproceduralphenomenonin right, cannot be changed either by a fact or by a subsequent incorporated into theproperty of thepartywho has such definitely right, vested A practice. its of time the at force A perfect legal act is created accordingto the law in Res judicata. 01. rule regulatinganactualevent (statutory gap), and so he claims submittedinalawsuit,evenifthereisno legal However, aJudgemaynotrefrainfromdecidingon technological advancements. and interpersonal relations evolve, especially as aresultof society, mostly because of thespeedinwhich commercial legislator to provide all legal situations that may occur in source ofBrazilian Law, itisvirtually impossible forthe It is noteworthy that although the Statute is the primary exceptions, whichwillbeaddressedlater). and decisionsrenderedonothersimilarcases(thereare applied bytheJudgeregardlessofpreviousinterpretations Legislation hassovereignpowerandmustbeinterpreted interference intherelationshipwithPublic Authorities. significant has also and relationships private regulates which The system’s basicdogmasareconsolidatedintheCivilCode, regulatory power. while othersourcesofLawplayasecondaryroleinthe legislation, having asthemainsourceofLawStatute, Thus, theBrazilian System (Civil Law) prioritizes to theactualevent,withdueadjustments. are drawn directly from Statutesandsubsequently applied decisions whileinCivil Law theprinciples of thedecision the law, theJudgeshalldrawprinciples from previous In lightofthis,inCommonLaw, inorder toenforce tend tofollowprecedents. is knownas“stare decisis”, which Common Law Courts from whichpremisesaretakentoreachadecision. This consideration a previousanalysis ofequalorsimilar cases In theCommonLawsystem,aJudge’s decisiontakesinto answer isfoundinanyoftheprevioussources. carried outbytheJudgeaimingforfulljustice,whenno spirit andpurposeofLaw. Finally, equityistheacttobe although arenotprovidedforbyanyStatute,conveythe General principlesoflawarethesetwhich but whichissimilartotheeventnotprovidedfor. law, any by specifically or directly covered not event Analogy consistsofapplyingalawtodifferent law andequity. Law, ifrequired,aswellanalogy, generalprinciplesof must resorttotheaforementionedsecondarysourcesof

7 HOW TO UNDERSTAND LITIGATION IN BRAZIL 8 LAW organization ofthe BrazilianState. and essential rights of every citizen. It also describes the by Law, separation of Powers,Legality, etc.), guarantees political principles (Republican, Democratic State Ruled In summary, theBrazilian Constitution establishes the Legal Systempyramid. Federal Constitution,whichisontopoftheBrazilian In terms of hierarchy, there is nohigher rule than the rules oftheregulatorysystem. all of validation for basis the reflecting rules, of plurality In otherwords,theFederalConstitutionisunity ofa Brazilian LegalSystembasedthereon. validity tootherrulesorganizing andstructuringthe Constitution is the set of rules that unifies and confers legal Democratic State Ruled by Law in Brazil, i.e., the Federal 1988 (CF88),beingtheessentialandhighestruleof The Brazilian Federal Constitution was enacted in Federal Constitution legislative process. of theBrazilian Federal Constitution, as welltheentire Law, it is relevant to provide background on the enactment system by Brazil, in which Statutes prevail as a source of As aconsequence of the adoption of the Roman-German Structure oftheBrazilianLegalystem Constitution, whichistheuseofprinciplelegality. by BrazilarisesfromanexpressprovisionoftheFederal Therefore, the adoption of the Roman-German system both State and Municipal Statutes, as the Federal District both Stateand MunicipalStatutes,asthe FederalDistrict A Federal District Statute may encompass matters of reserved fortheStatearecovered byMunicipalStatutes. Statutes, arecoveredby State Statutes,andthosenot matters, i.e. those not reserved for the Federal remaining matters may be ruledthe Thus, Statutes. Federal by The FederalConstitutionexpresslyprovidesforwhich only withintherelevantMunicipality). in theFederal District) andMunicipal Statutes (in force respective States),FederalDistrictStatutes(inforce only State Statutes (in force only within the territory of the Federal Statutes (in force in the entire Brazilian territory), It is necessaryto mention this organization, as there are the Municipalities. Federal Government, the States,Federal District and the FederativeRepublicofBraziltobecomposedby is establishedbytheFederalConstitution, which provides As previously mentioned, the Brazilian State organization Federal, state andMUNICIPAL statutes 02. constitutional content. name itself indicates, arepropositions toamendthe Amendments totheFederal Constitution,asthe The legislativeprocessencompassesthedraftingof: be explainedlater)andiscalledlegislativeprocess. and anatypical function of the Executive Power (asshall obligations isatypical function oftheLegislative Power The enactment ofregulatory actsestablishing rights or the businesscommunity. under FederalJurisdictionsissubstantially important to Statutes are enacted, given that the reserveofmatters Following thisscenario, we will address howthe Federal Types offederalstatutes Federal Districtisitsnationalcapital,Brasília. is acombinationofStateandMunicipality. InBrazilthe Resolutions. Legislative Decrees;and Executive Acts; Provisional Delegated Laws; Ordinary Laws; Supplementary Laws; Amendments totheFederalConstitution; and effectiveness. similar period, onlyonce,otherwiseitshall loseitsforce within 60(sixty)days,which maybeextended,fora must besubmittedforapproval bytheLegislativePower needs. Itisanemergency regulatory measurewhich with force of law in order to meet urgent and relevant for the Head of the Executive Power to enact a measure A ProvisionalExecutive Act isaconstitutionalpermission citizenship, individualrights,etc.). matter reservedforSupplementaryLaws,nationality, are subjecttoregulationbyaDelegatedLaw(e.g., It isanexceptionalsituationandnotallmatters Legislative Powertoenactalawinspecificcase. Power exercises atemporary powerarising fromthe By means ofDelegated Laws, theHeadofExecutive plus oneofthecongressmembersinattendance). members) while an Ordinary Law requires a plurality (half requires a majority (half plus oneofall the congress is requiredquorumforapproval. A SupplementaryLaw The only difference between these two typesofregulation Ordinary Law. a Supplementary Law, themattermustberegulated by an If there is noconstitutional requirement for regulation by Supplementary Laws. certain mattersshallonlyberegulatedbymeansof That is, the Federal Constitution has established that unequivocally requires theenactment of suchregulation. situations in whichtheConstitution itself expressly and Supplementary Laws arethoserequiredforcertain

9 HOW TO UNDERSTAND LITIGATION IN BRAZIL 10 LAW act enacted by higher authorities, except the Head of Finally, a Resolution is aregulatory administrative the HeadofExecutivePower, etc. international acts, judgingaccountssubmitted annually by of Representatives and FederalSenate),suchasratifying exclusive competence of theNational Congress (House A Legislative Decreeregulatesmatterswithinthe Resolutions Legislatives Decrees Acts andDelegatedLaws Provisional Executive International Treaties Ordinary Lawsand Supplementary Laws Constitution from 1988 Brazilian Federal

in accordancewiththepyramidbelow: Thus, theBrazilianregulatorystructuremaybedefined not abovetheFederalConstitution. are incorporated into the domestic legal system, but are international treaties signed byBrazil have lawstatusand exclusive jurisdiction thereof. It must also be stated that the ExecutivePower, providingformatterswithinthe used asapre-arbitral orpre-litigation procedure. the procedureconfidential. Mediationisoftenalso parties. The mediatormustbeimpartialandkeep procedure, aswellfacilitating dialoguebetweenthe the disputebymeansof anestablishednegotiation one ormoremediatorsareelected,seekingtosettle It isamethodtosettlemattersoutofCourtinwhich Mediation and arereferredtoasRentalJudges. are invitedtooccupytheplaceofsuchimpartialthirdperson The evaluation is confidential. In some cases, retired Judges settling thedispute,includingsuggestedsettlementtopics. the actualsituationofeachparty, aswellpossibilitiesfor negotiation between them, to the extent that it will point out expert electedbythepartiesmaybeusedasbasisfordirect A technical,non-bindingopinionprovidedbyathird-party a disputeinCourttolearnthelikelyoutcomeadvance. A methodthatallowspartiesintendingtonegotiateorsettle F disputes: In Braziltherearefivemainmethodstosettle act findingNeutralEvaluation METHODS OFDISPUTERESOLUTIONINBRAZIL the Judiciary, ifapplicable. just as and effective asacourtjudgment,subjecttoenforcement by is binding decision final The principle. law rights, i.e.,aprocedurethatfollowsthedueprocessof arbitrators to settle disputes involvingavailable proprietary to settle disputes.Itconsistsofchoosingoneormore Arbitration is themost common alternative method used regarding the decisionrenderedbythe dispute resolution to theparties’ convenience.Intheeventofdisagreement it to adapt each case to specific circumstances, according executed bytheparties,so itscontractualnatureallows dispute resolutionboardis alsobasedontheagreement a disputearises,forthepurposeofpreventingit. The from traditionalarbitration,sinceitisorganized before board. Thus, adisputresolutionboardessentiallydiffers binding, accordingtotheorganized disputeresolution issuing opinionsanddecisionswhichmayornot be assisting withtopicsthatmayleadtodisputes and the parties,tomonitorperformanceofagreement, It consistsintheappointmentofspecialists,trusted by Dispute ResolutionBoard Arbitration 03.

11 HOW TO UNDERSTAND LITIGATION IN BRAZIL 12 LAW proceedings, which areaviable route forthe settlement This guidealsoprovidesashortanalysisonadministrative Administrative Proceedings rendered, whichmustbecompliedwithbytheparties. is decision final a observed, is law of process due the After a disputeissettledbytheJudiciaryinlieuofparties. This isthecommonmethodusedtosettledisputes,inwhich Judiciary is, mediation,arbitrationortheJudiciary. board, thepartiesmayresorttojurisdictionalroutes,that will beanalyzedfurtherherein. smaller scale,by Arbitration. Therefore, bothmethods disputes inBrazilisthroughtheJudiciaryand,ona It issafetosaythatthemostcommonmethodsettle case, thusavoidingaccesstotheJudiciary. proceeding oftenanticipates a satisfactorysolutiontothe heardand submit one´s claim to the Public tobe Administration. This party aprivate for structure simplified In thisproceeding, the Public Authorities establish a Federal, StateorMunicipallevel. of disputesinvolvingPublic Administration, beitona and act as the guardian of the Federal Constitution and The Judiciary is responsible forapplying the rule oflaw Executive Power. budgetary, operational and proprietary inspection of the financial, the for account and out carry and prepared) are legislate (the processbymeansofwhichthelegal rules has thetypicalattribution to The LegislativePower democratically electedthroughdirectelections. which isheaded by thePresidentof Republic, purpose istoactastheheadofStateandGovernment, The Executive Power isthe constitutional body whichmain Legislative Power;andtheJudiciaryPower. among themselves, namelytheExecutive Power; the the powersofStateareindependentandharmonious principle of tripartite division of powers by stating that The Brazilian Federal Constitution has adoptedthe involving privatepartiesand/orPublic Authorities. interest of conflicts resolves State the Judiciary,which by The main method used tosettle disputes inBrazil is the Judiciary Bodies: See thechartwithmoredetails about theBrazilian (Supreme FederalCourtandSuperiorofJustice). instances andalso,occasionally, bytheHigherCourts Constitution. Itsdecisionsmightbereviewedontwojudiciary authority/attribution arepreviouslydeterminedby the The BrazilianJudiciaryconsistsofseveralbodies,which basis foreveryone. parties, applying thelawtoactual event onanequal interpreting the applicable law inlieu of thewill Thus, through the Judiciary, Judges render decisions by coercive manner, wheneverpromptedtodosobytheparties. consists of imposing the validity of the legal system in a Therefore, it should be noted that the judiciary’s activity event submittedtheretoforconsideration. of rendering decisions by applying the law to an actual to settle disputes via jurisdictional activity, which consists of legality. In other words, it is the power with the authority other legal rules for the purpose of preserving the principle JUDICIARY 04.

13 HOW TO UNDERSTAND LITIGATION IN BRAZIL 14 LAW Instance Special BRAZILIAN JUDICIARY BODIES(section92oftheFederalConstitution) or FederalLawrespectively). decisions may be reviewed by the STF and STJ wheninvolving violations to the Federal Constitution - SuperiorMilitary Court (STM): the highest body forjudging matters concerning Military Law (its or FederalLawrespectively). decisions may be reviewed by the STF and STJ wheninvolving violations to the Federal Constitution - SuperiorElectoral Court (TSE):thehighestbodyforjudgingmattersconcerningElectoral Law (its decisions maybereviewedbytheSTFwheninvolving violationtotheFederalConstitution). - Superior Labor Court (TST): the highest body to judge matters concerning labor relationships (its the BrazilianJudiciary, aswelldisciplinaryaspectsconcerningJudges. - National Justice Board (CNJ): administrative body responsible for the guidelines and structure of may bereviewedbytheSTFwheninvolvingviolationtoFederalConstitution). responsible forcontrolling the legality of legal decisions renderedbyothercourts(its - SuperiorCourtofJustice (STJ): guardian of the Federal Laws below the Constitution and act astheguardianofFederalConstitution. - SupremeFederalCourt(STF):highestbodyoftheBrazilian Judiciary, whichmainpurposeisto Court Appellate BRAZILIAN JUDICIARY BODIES(section92oftheFederalConstitution) Military Judges. on aCourtof Appeals, beingresponsibleforreviewingthe LowerCourtdecisionsrenderedby - Military JusticeCourts(TJM):bodywithauthoritytosettledisputesarisingfromMilitaryLaw, Electoral Judges. Law, onaCourtof Appeals, beingresponsibleforreviewingtheLowerCourtdecisionsrenderedby - Regional Electoral Courts (TRE):bodywithauthority to settle disputes arisingfromElectoral rendered byLaborJudges. relationships, onaCourtof Appeals, responsibleforreviewingtheLowerCourtdecisions - Regional LaborCourts(TRT): bodywithauthoritytosettledisputesarisingfromlabor Court, onaCourtof Appeals, beingmainlyresponsibleforreviewingtheLowerCourt´sdecisions. affecting interests of theFederalGovernment and notconcerningtheLabor, Electoral or Military - Appellate Courts ofJustice(TJ):bodywithauthority to judgemattersinvolvingdisputesnot Court decisions. the FederalGovernmentonanappellate level, beingresponsibleforreviewingtheFederalLower - FederalRegional Courts (TRF):bodieswithauthority to judgematters involving the interest of

15 HOW TO UNDERSTAND LITIGATION IN BRAZIL 16 LAW Court Lower BRAZILIAN JUDICIARY BODIES(section92oftheFederalConstitution) Police andMilitaryFireBrigade). - State Military Judges: bodywithauthority to judge members of Auxiliary Forces (e.g.Military and AirForce). Navy - Federal Military Judges: body with authority to judge the military in the Armed Forces (Army, - ElectoralLaw:bodywithauthoritytosettledisputesarisingfromLaw, onaLowerCourt. - LaborJudges:bodywithauthoritytosettledisputesarisingfromlaborrelationships,onaLowerCourt. Government, onaLowerCourt. - Federal Judges: bodieswithjurisdiction to judge matters involving the interests of the Federal Federal GovernmentandnotconcerningtheLabor, ElectoralorMilitaryCourt,onaLowerCourt. - Judges:bodywithauthoritytojudgemattersinvolvingdisputesnotaffecting anyinterestofthe LIMITS OFTHEBRAZILIANJUDICIARY Among themainones,following maybementioned: ramifications invariousfields oflaw. The BrazilianProceduralSystemiscomplex, with Brazilian legalprocedure Main laws regulating the of theBrazilianJudiciary: Brazilian territory and therefore aresubjecttothedecisions the following elements are deemed to have occured within According to the Brazilian Law, civil disputes containing within theBrazilianterritory. rendered bytheBrazilianJudiciarymustaddressdisputes In respecttothesovereigntyofothercountries,decisions January 11th 1973; Code ofCivilProcedure – LawNo.5,869,dated When probateassetsarelocatedinBrazil. Disputes concerningrealestatelocatedinBrazil;and Disputes arisingfromfactsoccurringinBrazil; An obligationthatmustbecompliedwithinBrazil; A defendantwhoisdomiciledinBrazil;

parties ofthe dispute. the decisions rendered on the claim concern solely the in theprocedureaswell itsconsequences arising from Individual conflicts are such in which the interests involved Such conflictsmaybeeither individualorcollective. the parties. between arising interests of conflict a resolve to order enforce theactualintentionofsubstantivelawrules in of procedural law is one: a methodor instrument to through lawsuitsorproceduresperse,theessence Despite thevarietyofissueswhichmaybeclaimed such ascivil,criminal,labor-related, tax-related,etc. by legal proceedings, whichmayaddressseveralmatters, disputes ofsettling purpose applying the Law to an actual event, the Judiciary uses its fulfill to order In Legal Proceedings July 24th1985. Public-Interest Civil Action –LawNo.7,347dated and Collective Actions; 11th 1990; Consumer Code–LawNo.8,078dated September 5,452 datedMay1st1943; Consolidation of Labor Laws –Law-Decree No. dated October3rd1941; Code ofPenalProcedure–Law-Decree No. 3,689

17 HOW TO UNDERSTAND LITIGATION IN BRAZIL 18 LAW be challenged bymeansofspecialor ordinary appeals, Judgments renderedbythe Appellate Courts mayalso immediatly oncethejudgment isrendered. suspensive effect, soitsforeclosuremaybeinitiated on aprovisionalbasis.InLaborLaw, anappealhasno effect, whichbarstheexecutionofcase,evenif In CivilLawmatters,asarule,anappealhassuspensive panel ofJudgesatahigherJudiciarylevel. error inthecourtruling,casemaybereviewed by a level. Itguaranteesjusticetocitizens.Intheeventof an or legalprocedurereassessed,usuallybyahigherjudiciary which providescitizens the righttohaveanadministrative generally adopts the principle of double judiciary level, requirements imposed byprocedural law are met.Brazil appropriate Court (Appellate Court), providedthat certain Any judgment may be challenged throughan appeal to the procedure two majorgroups:cognizance procedure andenforcement into divided be may lawsuits conflicts, individual for As of individuals. number indefinite an affect legally will effects its i.e., of theprocedureshallaffect acertaingroupofpersons, In collective conflicts the interests and the consequences 1 one seekingtoobtainaLegalEnforcementInstrument. A cognizance procedure acknowledgesarightclaimed by in variousprocedurallawfields. . The BrazilianProcedural Lawsstill encompassthepreventive process andspecialprocedures which,byits specificitiesand lessuse,willnot be treatedinthis work. . Judiciary Levels 1 . Although there are differences and peculiarities enforcement instrumentisnotvoluntarilyobserved. may be initiated if the obligation established in the legal unappealable (res judicata), and an enforcement procedure When no further appeal may be filed, the decision becomes more specificadmissibilityrequirements. usually broughttoSuperiorCourts,withstricterand before theJudiciaryarethosearisingfrom: described, themainmattersresultingindisputesbrought Following the brief procedural scenario previously That is,theJudgehaspowerto: payment ofadebt. The Judiciaryisthesoleauthorityabletoattachassetsas Judiciary Main disputesbroughtbeforethe A ttachment ofAssets • • • Order thedebtortodeliveracertainasset. Remove assetsfromthedebtor’s property; Enforcement ofdebts; Damages (indemnification); Contractual default; Courts -isincreasingly large andsignificant. the authority tobringthissortofaction beforeLabor of LaborPublic Attorneys and Trade Unions -whichhave It isanincreasingsourceof legaldispute,sincetheaction Actions discussingissues arising fromlaborrelations. to judgePublic-InterestCivil Actions andCollective Brazilian ProceduralSystemallowstheLaborCourt originated fromthesamefactualcircumstances. The premiums, may be heard collectively, provided they Even divisiblelaborrights,suchasovertimepay and subjected toimproperworkenvironment,etc. factory, membersofacertaintradeunion,employees collective groupsuchastheemployeesofacertain and/or nonpecuniaryrightsbelongingtoanindivisible procedural instrumentsforthedefenseofproprietary Actions and Collective Actions are the appropriate In therealmofLaborLaw, Public-InterestCivil security andothers. Environmental Law, consumerrights,LaborLaw, social Collective Actions usually concern matters of “Collective Actions” or “CollectiveLaborDisputes”. interests, inwhichcasethelawprovidesforso-called On theotherhand,disputesmayarisefromcollective Collective Actions • Corporate matters. (property); and Protection toownershipand/or possessionrights administrative proceedings first, it is possible to go is possible directly toCourt. it first, proceedings administrative or collectivedisputes,there isnoneedtoresort Brazilian Judiciary, eitherasaresultofindividual It shouldbenotedthat,in ordertohaveaccessthe Associations, Unions,Federations,etc.). Office, Defender Public Attorneys, Public (e.g. entities entities, aswellclassandcollectiverepresentation Standing tosueis,usually, assignedtoinspectionorcontrol alone. claim of type this file may individual no law; by is determined Actions Collective file to standing The suitable todefenditsinterests. broad defenseandmayproduceanyevidence it deems company shallhavetherighttoadversaryproceedingand In theeventacollective procedure isunavoidable, the the LaborPublic Attorney, whennecessary. trade union andnegotiating conduct adjustment terms with prevented by maintaining a good relationship with the and maylead to severejudgments,suchcases might be Since theseactions protect rights belonging to all workers Collective Action. may potentially justify aPublic-InterestCivil Action ora However, anylaborrightthatiscollectively violated and protectionofhandicappedworkers. like labor, violation of occupational health and safetyrules at work,childandadolescentlabor, degradingandslave- Labor Laws,discrimination and psychological harassment outsourcing, cheapening of productionbydefrauding The mostcommonmattersintheseactionsareunlawful

19 HOW TO UNDERSTAND LITIGATION IN BRAZIL 20 LAW case maybe. Meeting Minutes,General MeetingMinutes,asthe Association, Corporate by-laws,Shareholders’ the company’s representation, such as Articles of power ofattorneyalong withdocumentssupporting who isanOABmember. The lawsuitshallincludea such companymustgrantpowerstoanattorney-at-law Brazil tobepartyalawsuitinanyBrazilianCourt, In orderforaBraziliancompanyheadquartered in Brazilian Companies actions beforetheBrazilianJudiciary. ( who aremembersoftheBrazilianBar Association, OAB It isnoteworthythat,asarule,onlyattorneys-at-law individual anddiffuse interests. with jurisdictiontodefendhomogeneous,collective, authorities legal competent other or Office Attorney’s Such actionmaysolelybebroughtbythePublic obligation toornotperform. be pecuniaryawardsorpenalties,refrainingfromits from economic and urbanistic infractions. Its objectmay rights ofartistic,aesthetic,historicalandtouristvalues environmental, consumer, public heritage, assets and of July 24, 1985. Itspurposeis to hinder or prevent Public Civil Action is regulated by Law No. 7,347 ) are qualified to bring to qualified Ordemare dos Advogados doBrasil) Legal representation Public -InterestCivilAction Documents inBrazil. sworn translatorandregisteredwiththeRegistryofDeeds and may bewaived. These documentsmustbetranslatedbya countries withwhichBrazilhasagreements,thelegalization in ordertobeeffective inBrazil. Fordocumentscomingfrom be notarizedandlegalizedbythenearestBrazilianconsulate It shouldbenotedthatdocumentsfromforeigncountriesmust by-laws, andCertificateofGoodStanding,asapplicable. of thegrantingparty, suchas Articles of Association, Corporate the documentsupportingrepresentationandexistence the attorneys-at-law in Brazil and filed with a Court, along with A powerofattorneyshallbegrantedbytheforeigncompanyto an attorney-at-lawwhoisOABmember. party toalawsuitinanyBrazilianCourt,itmustappoint requirements, foracompanyheadquarteredabroadtobe Likewise, observingthesameaforementionedlegal provided theyaredulyrepresented. Companies notestablishedinBrazilmaygotocourt, Foreign Companies among others. evidence, the amountofresourceshandled bytheparties, the matter, therequirement to produce technical or expert depending on variousfactorssuchasthe complexity of The duration of the lawsuit may vary substantially, instance orinanyCourt. limitation andmayrepresentthepartyinanyjudiciary Brazilian attorneys-at-lawarenotsubjectto any Limits andDeadlines Lower Courts of certainStates, have already implemented Higher Courts,Labor aswellcertain Appellate and Court Housestofilepetitions orhaveaccesstorecords. the from range elimination ofpapertonot needing toattendCourtsand method such of benefits The digitally. i.e., form (hardcopy),sotheymaybeprocessedelectronically, The systemaimstoeliminatetheprocessingofcasesinphysical is theimplementationofelectronicproceduresystem. modernize and expedite the processing oflegal proceedings Another actionbeingtakenbytheBrazilianJudiciary to Electronic procedure the numberofcasestowhichsuchappealsareapplicable. procedures andreducethenumberofappeals, as well Procedure currently in force, precisely to simplify National Congress tochange in fullthe Code ofCivil Accordingly, abill is currently under discussionatthe interest of conflicts brought totheJudiciary. the to solution quicker a reach implemented inordertosimplifytheproceduresand However, manylegislativereformsarebeing delay toreachfinaldecisionsbytheBrazilianJudiciary. of appeals,combined with otherfactors,often resultsin large numberoflawsuitsandtheexistence of severalkinds commonly used method of settling disputes in Brazil. The As previouslymentioned, the Judiciary is the most Modernization oftheBrazilianJustice

greatly contributetotheachievementoflegalprotection. legal caseswillbecomemoreexpeditious,which Upon thefullimplementationofelectronicprocessing, expediting thereby basis, definitive procedures andfacilitatingthejobofcourtworkers. a on method the of theBrazilian LegalSystem. produced positive effects, substantiallyimproving theoperation Actions implementedbythe NationalJusticeBoardhave actions andpartnershipstoentirely modernizetheJudiciary. by Judges, Appellate JudgesandJusticesimplementing more transparentmanner, stipulatinggoalsforcasestobeheard developing projectstoexpeditetheprocessingoflawsuits ina Since its creation, the National Justice Boardhasbeen servant, includingJudgesoftheJudiciary),amongotherduties. matters oftheJudiciary(e.g.,acomplaintbroughtagainst any of Judges,aswelltohearcasesrelatedadministrative duties the oversee to and Judiciary the of action financial and Justice Board’s mainpurposeistocontroltheadministrative of 2(two)years,withasecondtermpermitted. The National law and citizens with reputable legal knowledge, for a term Appellate Judges,Public Attorneys, Attorneys-at- Board asaJudiciarybodymadeupof15members,Justices, This constitutionalprovisionincludedtheNationalJustice subdivision I-A insection 92oftheFederalConstitution. by theConstitutional Amendment 45/2004, whichadded Justice System,theNational JusticeBoardwascreated For thepurposeofoptimizing the operationofBrazilian National JusticeBoard

21 HOW TO UNDERSTAND LITIGATION IN BRAZIL 22 LAW involved alienable rightsandreassured that once renounce the judiciary control on matters that 2001, thepossibilitythat partiescouldvoluntarily The SupremeFederalCourt (STF)recognized,inlate has beenanexampleininternational arbitration. Convention on Commercial Arbitration, and, since then, Trade Law)ModelLaw, theNYCandInter-American UNCITRAL (United Nations Commission on International by international guidelinesandlegislation such asthe Arbitration Law in 1996 (Law No.9,307/96), inspired Brazil signed the NYC onlyin2002,but it enacted the precepts, amongothers: Arbitral Awards) isthe main Arbitration legislation,which Convention ontheRecognitionandEnforcementofForeign The New York Convention(NYC-UnitedNations Arbitration Overview regularity. the arbitralaward,beingableonlytoanalyzeits Impossibility ofthecourttoexaminemerit arbitral award;and Limitation on thehypothesestochallenge a foreign national awards; The absence of discrimination between foreign and ARBITRATION ANDMEDIATION ground forthe useof Arbitration inBrazilare: Therefore, the mainlegal pillars whichprovidea safe Amendment No.18/2005consolidatessomematterssuchas: Regarding foreignawardrecognition,theSTJStatute foreign judgmentsbeforetheBraziliancourts. Brazil, ending for once the discussion on the feasibility of (STJ) iscompetent to recognize foreign arbitral awards in Furthermore, since 2004 the Superior Court of Justice the arbitrationinstitute. jurisdiction inaclearrecognitionoftheimportance method ofconflictresolution,denyingthemthestate legally obligated to resolve theissuesthroughsuch the partiesvoluntarilychoosearbitration,theyare its respectivesworntranslation. An award legalized by the Brazilian consulate with The existenceofagrantedaward;and That thepartieswereregularlysummoned; public order, humandignityandnationalsovereign; the to violation any of existence the of verification The award; The possibilitytoexaminetheregularityofarbitral 05. 2 (in Portuguese).

Boletim Direito GV : Survey by Selma Ferreira Lemes demonstrates a 164% increase on the amounts related to arbitration in 2009 – Year: 7, Number: 66, April 2010 time wouldbe sixyears. of sixmonths, whileinthejudiciarysystem, theaverage arbitral procedure,onaverage, issolvedinamaximum The abovementionedsurvey alsodemonstratedthatthe five the on consumer international chamberofcommerce operatinginBrazil. and suppliers companies, by Vargas Foundation grew at least 164% according to a survey by the Getúlio Between 2008and2009valueshandledbyarbitration system. way, whichcannotalwaysbeachievedthroughthejudiciary complex demands to be solved in a more swift and efficient of allows it as the number them, on involved values in and procedures filed increase significant shown has Brazil Due toitsjurisdictionalsecurity, theuseofarbitrationin the instituteanditsapplicability. on thematter, preventing dissonant decisionsaffect STJ the through thesetting of thejurisprudential positions by unified jurisprudence: Brazilian The the othersignatorynations;and The NYC:pairstheBrazilianarbitrationsystemwith judiciary infavorofanarbitrationprocedure; the STF:reassuredpossibilitytorenounce Recognition of theconstitutionality ofthislawby most advancedforeignlegislation; with theinternational laws, whichresemble the developed a modernlawonarbitration, coherent Enactment of the Arbitration Law: Brazil has 2 whichanalyzedarbitrationsmade resolution areimportanttoassureforeigninvestments. development, inwhichalternativemethodsofdispute business relations,especiallyinBrazil,acountryfull importance, arbitrationisasafewaytopromote Moreover, withoutdevaluingthejudiciarysystem America, FranceandGermany. uses arbitration in the world, following the United States of America inthelast10years,anditisfourthcountrywhich Latin in place first the to last the from passed has Brazil that Chamber ofCommerce(ICC)demonstrated on itsranking To elucidatethegrowthofarbitrationinBrazil,International submission agreement: Arbitrate, which can be madebyanarbitration clause or a Arbitration is organized through an Agreement to arbitration Main requirementstoaneffective which theparties submitadisputetoarbitration, A submissionagreement is theagreement through for thesettlementofanydispute). legal transaction, clearly providing forarbitration letters, emails, telegrams and faxesconcerning the and evenafter itsexecution (e.g.,exchangeof might be agreed upon the drafting of the agreement the agreement. Nevertheless, the arbitration clause arbitration to settle any dispute that might arise from agreement, whereby thepartiesagree to use The arbitration clausemaybeincludedinan commitment/agreement

23 HOW TO UNDERSTAND LITIGATION IN BRAZIL 24 LAW certain legalbusiness. that may arise between the parties due to the fulfillment of existing conflicts, while the latter applies to future litigation agreement and the arbitration clause is that the first covers Therefore, thedifference betweenthesubmission rules governing thematter. be judgedby equity, without theapplicationof legal arbitration), aswellthe possibilityofthedisputeto from theplaceofaward, whichisthevenueof in whichthearbitration shall beconducted(different Arbitral Institution(usually ChambersofCommerce) Arbitration Law also allows the parties to determine the Apart fromtheabovementionedrequirements, the Arbitration procedure General aspectsofthe force requires: an submissionagreement to beeffective, the lawin which maybesettled in oroutofcourt.Inorderfor shall beconducted. rendered andthelanguageinwhichprocedure The place where the arbitral award will be alienable rights;and subjected to arbitration, which shall only concern The matterandvalueoftheclaims that will be of theentitythatshallappointthem; The qualification of the arbitrators or specification andtheir representatives; parties the of qualification full The the arbitralaward,whenrequestedbyparties. points, inquiresordiscrepanciesthatmaybe contained in obscure any of clarification the for or thereof, receipt the of allows forthecorrectionofanymaterialerror, within5days There arenoappealsagainstthearbitralaward,lawonly there isanabsenceofastipulateddeadlineforitsdelivery. An arbitralawardshallberenderedwithin6monthswhen relate toactions forannulmentoftheaward, andonly Such surveydemonstrated thatonly15% ofthedecisions February 2008. since theenactmentof Arbitration Law, from1996to arbitration awards made by Brazilian Courts of Justice, a surveywhichanalyzed790judgmentsrelatingto the along withtheBrazilian Arbitration Committee,conducted Regarding thispossibility, theGetulio Vargas Foundation, requirement isnotdulycomplied. be declared null, before the Judiciary, incase a formal award arbitral the requesting claim, a file to possible also Notwithstanding theaforementioned exposition, itis the Arbitral Awardof Annulment of the Arbitral Institution previouslychosenbytheparties. This challengeshallberesolvedmainlythroughtheregulations party distruststhearbitrator’s impartialityandindependence. A partymightchallengethenominationofanarbitrator, ifsuch indicate oneormorearbitratorsoftheirtrust. of anoddnumberarbitrators,wherethepartiesshall According to the law, the Arbitral Tribunal is composed Constitution ofthe Arbitral Tribunal The advantagesof Arbitration are: exclusive competenceoftheCAM. its bylawsfortheinclusion ofanarbitration clause of The companyalsoundertakestopromotechangesin of potentialdisputestoarbitration. controllers and supervisory board members the submition BOVESPA,in BM&F it isagreedbetweenadministrators, Therefore, besidestheparticipation contract of thecompany bylaws andcapitalmarketsregulation. Arbitration Chamber)alldisputesrelatedtocorporatelaw, Câmara de Arbitragem doMercado (CAM–NewMarket BOVESPA determinethatthecompanies solve within the BOVESPA). The regulationsoftheLevel2andBM&F New MarketoftheSãoPauloStockExchange(BM&F requirement forcompanieswithshareslistedinthe The useofarbitrationhasalsobecomeamandatory Stock Exchange Arbitration andtheNewMarket of theSãoPaulo compliance withformalaspectsbytheparties. 14 sentences were annulled, mainly due to the non Arbitration procedure Advantages arisingfrom Technical expertiseofthe arbitrators. Pre-defined deadlines; and Lower costduetotheshortduration oftheprocedure; Confidentiality; Celerity; Arbitral Award incasethe Arbitrators donotruleonallclaims. Judiciary, suchasthe Arbitral Letterand thesupplementary concerning therelationbetween Arbitral Tribunal and the Furthermore, the Law providedfornewmechanisms measures, whichmightbegrantedbytheJudiciary, ifnecessary. The Lawalsoenabledthegrantingofemergency andinterim inclusion ofsuchclauseintheBylaws. Corporation, with the reimbursement of its shares, upon the the dissident shareholder’s right to withdraw fromthe making arbitrationapplicabletoallshareholders,respected of anarbitrationclauseintheBylawsaCorporation, Regarding CorporateLaw, theLawprovidesforinclusion principle ofpublicity. relates totransferablepatrimonialrights,observingthe public administrationmayuse Arbitration ifthedispute As forthepublicadministration,Lawprovidesthat on corporateandpublicadministrationrelations. Arbitration of use the amplified Law mentioned above The (“Law”) waspublishedon05.27.2015. of the Arbitration LawinBrazil,No.13129/2015 application the expand to and mechanism resolution conflict As aresultofthegrowingimportance Arbitration asa The adoption of alternative ways of dispute resolution is a The adoption of alternativewaysdispute resolutionisa 13129/2015 LEGISLATIVE ADVANCES –LAW No. Mediation Overview

25 HOW TO UNDERSTAND LITIGATION IN BRAZIL 26 LAWLAW 5 4 3 savings of334days. The averagecost formediationinBelgiumata75% mediationsuccessrateis€7.000. of 860days. The averagecost formediationin Italyata75%mediation successrate is€8.212. Accordingly there isatotalsavings of€7.158. rate of12.5%peryearsince 1970. America stated that mediation has increased in medium growth ofmediation, a surveyinthe United States of It is possible to identify as a global trend the rapidly relations, andinstitutionalenterprise. as corporate, family, labor, consumer and government its application to avariety of legal relationships such The versatility of the mediation procedure has disseminated demands thatglobalizationhascreated. increasingly complex economic andcommunication the address to order in be to needs it as flexible as not is on aglobal level as it is clear that the judiciary system Furthermore, mediation has demonstrated its importance molded accordingtotheirneeds. resolve a pending conflict, through a procedure that can be (mediator) is elected to assistthedisputants in orderto an alternative method ofdisputeresolutioninwhichaneutral third party as defined be may mediation Therefore, fast andeffective settlement. where the parties infer the power and the resources for a resolution thatsumsuptheconceptofconsensualjustice conflict of form a as emerges mediation context, this In its matters through dialogue andconsensusmeasures. participative culture that stimulates the societytoresolve affect the judiciary system, but bythe advance of amore global trend justified not only by the well known issues that Quantifyingthecostofnotusingmediation –adataanalysis,EuropeanParliament,2011. The time average for mediation in Italy, at a 75% mediation success rate which uses the Two-step approach, is 349days. Accordingly, there is a total time savings The time average for mediation in Belgium, at a 75%mediation success rate which uses the Two-step approach, is 171days. Accordingly, there is atotal time mediation procedure Applications ofthe , than half of the Fortune 1000 Moreover,that more theabovementioned surveyshows the UnitedStatesof America. submitted through mediation present favorable result in In thesamedirection,EuropeanParliament strategies (costs,risksandresultsmanagement). the factthatmediationallowsimplementation of business disputes, and has showed ahighrate of satisfactiondueto commercial contracts,corporatemattersandinternational such as insurance, reinsurance, construction, energy, In Brazil,corporatemediationhasbeenpracticedinsectors mediation overallotherdisputeresolutionmethods. in Belgium report demonstratingthat the use of mediation procedure nature of mediation, the mediator shall not oblige the conflict. the Through ajointdecision-making process,andgiven the to solutions suggested the feasible make and, mostimportant,toevaluatethepossibilitiesand to negotiating agenda,tokeepthefocusofdiscussions identify themainissuesofcontention,tocreate a Moreover, the mediator role is to help the parties to reassure theoncedamagedrelationbetweenparties. negotiation techniquesandcommunicationprocesses to The mediatorisaprofessionalskilled to useaseriesof Furthermore, anothersurvey fees whichenduptothreetimesitsvalue. mediation procedure The mediator roleinthe 4 andItaly 5 representsaneconomyonlegal 3 statedthat 70% ofthecases th listed companies prefer 3 issueda them toasettlementoftheconflict. parties toanunwanteddemeanor, andshallonlyconduct mediation clause betweentheparties, itispossiblefor Despite the higher effectiveness ofa pre-established The mainbenefitsoftheMediationare: Main benefits procedure Requirements to start amediation middle termthatbettersuitsitsinterests. exclusively, on the capability of the parties to find a Celerity: The durationoftheprocess depends, when comparedwitharegularlawsuit;and the procedure,mediation costs arelower, especially Low cost:duetotheinformality and shortdurationof mediator inaccordingtothespecificneeds; dialog between the parties that is conducted by the pre-established mediationprocedure,butaneffective Informality: onaccountofitsownnature,thereisno been has controversies or resolve them through self composition; the dialog reestablished, thepartiesmaypreventfuture once prevention: Conflict once damagedrelationship; communication rulesthatenablethepreservationof reapproaches theparties,butitalsohelpsreconstruct Preserve the relationship: not only mediation to findaconsensualwayoutofthedeadlock; reestablish communicationbetweenthepartiesinorder Restore dialog:throughmediation,itispossibleto The requestshallincludethefollowinginformation: to theotherpartyforitsacceptance. request tothemediationinstitutionthatshallthenbesent one partytoinitiatetheprocedurethroughasimple judicial centers, inwhichmediation hearings shallbeheld, The new CPCcreates consensual dispute resolution mediation inBrazil: There aretwoimportant legislative advances regarding 13,140/2015 OF CIVILPROCEDUREANDLAW NO. LEGISLATIVE ADVANCES –NEWCODE applicable tothespecificprocedure. or anyotherrequirementsthatisfoundtobe mediation shallbeconducted,eventualdeadlines mediator, languagesandlocationwherethe Information regardingthenominationof litigation toamediationprocedure(ifapplicable);and The agreementbetweenthepartiestosubmit of theeventsandamountinvolved; their and A summary of thedispute,containing a description parties the of representatives; qualification full The days afteritspublishing.. published on06.26.15andshall becomeeffective 180 Law No.13,140/2015(“Mediation Law”),whichwas 03.17.2016; and Code (“newCPC”),whichshallbecomeeffective on The approvalofthenewBrazilianCivilProcedure

27 HOW TO UNDERSTAND LITIGATION IN BRAZIL 28 LAW The mainMediationLawguidelinesare: displacement ofstateactivityforselfcomposition. settlements, and brings a new culture, i.e. implies the for mediationaswelljudicialandextrajudicial The MediationLawprovidesforaregulatorybenchmark and stimulatemediationinallproceedingstages. as wellthe development of programstoassist,guide judicial procedure; mediation byrequesting the suspensionof the partiesmightaddresstheirclaimthrough Even if there is an ongoing judicial procedure, the partiesduringmediation; Attorneys-in-fact or public defendants might assist chosen bytheparties; The mediator may beassignedbythecourtor from amediationschool; mediations, if graduated for, at least, two years on outofcourtmediations,or, forjudicial Any capablepersonmightactasamediator unavailable tangiblerights; Its subject matter relates to available rights and/or for mediation; proceeding, evenifthereisacontractual provision No partyisobliged to remain in themediation ones involvingthePublic Administration; It providesforanytypeofdispute,includingthe oh eiltv maue rpeet significant a as analternativemeanofdisputeresolutioninBrazil. represent measures improvement, consolidatingtheimportanceofmediation legislative Both Arbitration, andtheJudicial System. presented ahead comparative charts between Mediation, In ordertoelucidate the abovementioned exposition, itis These alternativesmethodsallowthepartiesto: consolidated inBrazil. as alternative methodsofdisputeresolutionalready precise solution,mediation and arbitration are presented Furthermore, before the judiciary barrier to issue a fast and Summary procedures accordingtotheBrazilianLaw. A party domiciled abroad might use mediation parties; and on mediationprocedures,ifagreeduponbythe It allowstheuseofinternetandothersmedias an constitutes agreement enforceable instrument; final mediation The the matter, forthegrantingofanaward(arbitration). on knowledge specific with party, third impartial Initiate a promptprocedure conductedbyan partnerships (mediation);or Restore dialogue in ordertoestablishcommercial 6 COOLEY, John W. Mediation Advocacy (NITA Practical GuideSeries) Paperback–June 1,2002,p.37. Result oftheprocedure Arbitrator/Mediator/Judge Rules applied Public Access Absence ofclearlegalentitlement Dispute hasmultiplepartiesandissues Disputants desiretotalcontrolofprocess Emphasis onfuturedealings Desire topreservecontinuingrelations Mediation IMPORTANT CRITERIAFORSELECTINGBETWEEN MEDIATION ANDARBITRATION to situation Tailors remedy dispute area Expert inthe Written Producers Private totheparties Arbitration ADVANTAGES CHART Premium onclosure Premium onspeedandprivacy Need tocompelparticipation Need fordecisiononpastevents Need tooffset powerimbalance creative solutions Often resultsin the intentofparties Flexible dueto by theparties Neutrals selected Private totheparties MEDIATION ARBITRATION 6 judge Institutionalized Appealable decision Civil ProcedureCode Public forum COURT

29 HOW TO UNDERSTAND LITIGATION IN BRAZIL 30 LAW on anadministrative level may bedisputed again in Court, constitutional right tobringsuit,thesamematter decided However, it should benoted that, as a result of the compared toajudicialoneisitssimplicity. The mainadvantageofanadministrativeproceeding requires atechnicaldefensebyanattorney-at-law). law, ifdeemednecessary(exceptincaseswheretheLaw evidence asrequiredandbedefendedbyanattorney-at- in theproceedings;righttosubmitquestions,produce the acts and decisions; right of access to documents involved main guaranteesare:impartialityoftheJudges;publicity these of Some procedures. administrative filing individual There are certain protection and guarantees for the avoiding litigationsbeforetheJudiciary. Administration, which maybringanearly solution thus a simplified structure for a claim to be submitted to Public In administrative proceedings, Public Authorities establish ADMINISTRATIVE PROCEEDINGS administrative asregulatedbythelaw. are exhausted, such justice being private in nature, but appeals inthelastjudiciary instances ofsportsjustice discipline andsportscompetitionsafteralltheapplicable Court. Thus, theJudiciary may onlyhearcasesregarding Constitution itself, there is an exception for access to Regarding SportsJustice,bydetermination of theFederal case istherebyguaranteed. expeditious, but the legal safety of a final decision on the Public Administration toCourt. This isgenerallyless a routes, administrative all private partymaychoosetobringthedisputeagainst exhaust first to need the basis withLegalProceedings. At anytimeandwithout optional forthesettlementofa dispute on a parallel alternate routewhichmaybepreparatoryormerely Thus, Administrative Proceedingsareconsideredan by unchangeabilityandothereffects ofajudgment. as itdoesnotconstitute res judicata and itisnotprotected 06. by essential principles established directly or indirectly Both Legal and Administrative proceedings are guided Equal Protection Broad Defense Adversary Proceedings Due ProcessofLaw PRINCIPLE unequally totheextentoftheir inequalities. It meansthatequalsshould betreatedequallyandunequalsmust the evidencethatmayberequiredtoexplainfacts. leading totheclarificationoftruth,i.e.,itshallbe entitledtoproduceall A partyisentitled toalltheconditionsbringcaseelements acts, givingittheopportunitytochallengethosethatare unfavorablethereto. party mustbegivenfullknowledgeofthecontents caseandallpracticed Arising fromtheprincipleofdueprocesslaw, itmeansthattheadverse ownership andaformalscopebyensuringequalconditionsbetweentheparties. operating bothinamaterialscopeofprotectiontotherightfreedomand and achievementoftheaggrievedrights.Itresultsindoubleprotection, The principle which seeks a fair proceeding, suitable to the needs for definition CONTENTS and administrative proceedings Common principlesofJUDICIAL principles: by theFederalConstitution.Belowaresomeofmain 07.

31 HOW TO UNDERSTAND LITIGATION IN BRAZIL PRINCIPLE CONTENTS

Irrefutability of It means that no law can prevent any damage or threat to a right from being Jurisdictional Control heard by the Judiciary.

Judicial Economy A Judge must conduct a case so as to provide the parties with the greatest result with the minimum procedural effort.

Publicity As a rule, procedural acts are public. And even in case of secrecy of judicial proceedings, the parties and their attorneys are entitled to have access to the records and become aware of all the practiced acts.

Substantiation of Legal All the legal decisions must always be substantiated, even if in a concise Decisions manner, otherwise they may be rendered null and void.

Two-tiered Judicial The parties are entitled to seek review of legal decisions by means of appeals. System LAW 32 Arbitration is another widely applied method in Brazil, addressing complextopics. changes to make it more expeditious and capable of which featuresarobuststructureandisundergoing major The mostcommonlyusedmethodistheJudicialsystem reliable systemtosettledisputesinvolvingvariousfieldsoflaw. In lightofwhatwasdiscussed,onecanconcludethatBrazilhasa arbitragememediacao information canbefoundatwww.amcham.com.br/ mediation andotherdisputeresolutionservices.More and MediationCenterresponsibleforarbitration, of CommerceforBrazilalsohasan Arbitration It isimportanttoemphasizethat American Chamber of the knowledge Judges incertainfields. specific requiring topics for mostly Final remarks 08.

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