The Dispute Resolution Review The Dispute Resolution Revie€¦ · The Dispute Resolution Review...

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The Dispute Resolution Review Law Business Research Seventh Edition Editor Jonathan Cotton

Transcript of The Dispute Resolution Review The Dispute Resolution Revie€¦ · The Dispute Resolution Review...

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The Dispute Resolution ReviewThe Dispute Resolution

Review

Law Business Research

Seventh Edition

Editor

Jonathan Cotton

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The Dispute Resolution Review

The Dispute Resolution ReviewReproduced with permission from Law Business Research Ltd.

This article was first published in The Dispute Resolution Review - Edition 7(published in February 2015 – editor Jonathan Cotton).

For further information please [email protected]

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The Dispute Resolution

Review

Seventh Edition

EditorJonathan Cotton

Law Business Research Ltd

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THE MERGERS AND ACQUISITIONS REVIEW

THE RESTRUCTURING REVIEW

THE PRIVATE COMPETITION ENFORCEMENT REVIEW

THE DISPUTE RESOLUTION REVIEW

THE EMPLOYMENT LAW REVIEW

THE PUBLIC COMPETITION ENFORCEMENT REVIEW

THE BANKING REGULATION REVIEW

THE INTERNATIONAL ARBITRATION REVIEW

THE MERGER CONTROL REVIEW

THE TECHNOLOGY, MEDIA AND TELECOMMUNICATIONS REVIEW

THE INWARD INVESTMENT AND INTERNATIONAL TAXATION REVIEW

THE CORPORATE GOVERNANCE REVIEW

THE CORPORATE IMMIGRATION REVIEW

THE INTERNATIONAL INVESTIGATIONS REVIEW

THE PROJECTS AND CONSTRUCTION REVIEW

THE INTERNATIONAL CAPITAL MARKETS REVIEW

THE REAL ESTATE LAW REVIEW

THE PRIVATE EQUITY REVIEW

THE ENERGY REGULATION AND MARKETS REVIEW

THE INTELLECTUAL PROPERTY REVIEW

THE ASSET MANAGEMENT REVIEW

THE LAW REVIEWS

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www.TheLawReviews.co.uk

THE PRIVATE WEALTH AND PRIVATE CLIENT REVIEW

THE MINING LAW REVIEW

THE EXECUTIVE REMUNERATION REVIEW

THE ANTI-BRIBERY AND ANTI-CORRUPTION REVIEW

THE CARTELS AND LENIENCY REVIEW

THE TAX DISPUTES AND LITIGATION REVIEW

THE LIFE SCIENCES LAW REVIEW

THE INSURANCE AND REINSURANCE LAW REVIEW

THE GOVERNMENT PROCUREMENT REVIEW

THE DOMINANCE AND MONOPOLIES REVIEW

THE AVIATION LAW REVIEW

THE FOREIGN INVESTMENT REGULATION REVIEW

THE ASSET TRACING AND RECOVERY REVIEW

THE INTERNATIONAL INSOLVENCY REVIEW

THE OIL AND GAS LAW REVIEW

THE FRANCHISE LAW REVIEW

THE PRODUCT REGULATION AND LIABILITY REVIEW

THE SHIPPING LAW REVIEW

THE ACQUISITION AND LEVERAGED FINANCE REVIEW

THE PRIVACY, DATA PROTECTION AND CYBERSECURITY LAW REVIEW

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PUBLISHER Gideon Roberton

BUSINESS DEVELOPMENT MANAGER Nick Barette

SENIOR ACCOUNT MANAGERS Katherine Jablonowska, Thomas Lee

ACCOUNT MANAGER Felicity Bown

PUBLISHING COORDINATOR Lucy Brewer

MARKETING ASSISTANT Dominique Destrée

EDITORIAL COORDINATOR Shani Bans

HEAD OF PRODUCTION Adam Myers

PRODUCTION EDITORS Matthew Hopkins, Robbie Kelly, Joanne Morley

SUBEDITOR Jonathan Allen

MANAGING DIRECTOR Richard Davey

Published in the United Kingdom by Law Business Research Ltd, London

87 Lancaster Road, London, W11 1QQ, UK© 2015 Law Business Research Ltd

www.TheLawReviews.co.uk No photocopying: copyright licences do not apply.

The information provided in this publication is general and may not apply in a specific situation, nor does it necessarily represent the views of authors’ firms or their clients.

Legal advice should always be sought before taking any legal action based on the information provided. The publishers accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of February 2015,

be advised that this is a developing area.Enquiries concerning reproduction should be sent to Law Business Research, at the

address above. Enquiries concerning editorial content should be directed to the Publisher – [email protected]

ISBN 978-1-909830-37-0

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Tel: 0844 2480 112

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The publisher acknowledges and thanks the following law firms for their learned assistance throughout the preparation of this book:

ARTHUR COX

ARZINGER LAW OFFICE

ATTIAS & LEVY

AZB & PARTNERS

BAKER & PARTNERS

BONELLI EREDE PAPPALARDO

BREDIN PRAT

BUFETE HERNÁNDEZ ROMO

CONSULEGIS ABOGADOS

CRAVATH, SWAINE & MOORE LLP

DITTMAR & INDRENIUS

HENGELER MUELLER

HERGÜNER BILGEN ÖZEKE ATTORNEY PARTNERSHIP

JUN HE LAW OFFICES

KBH KAANUUN

KYRIAKIDES GEORGOPOULOS LAW FIRM

LLOREDA CAMACHO & CO

LS HORIZON LIMITED

MANNHEIMER SWARTLING ADVOKATBYRÅ AB

MAPLES AND CALDER

ACKNOWLEDGEMENTS

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Acknowledgements

ii

MIYAKE & YAMAZAKI

MOHAMMED AL-GHAMDI LAW FIRM IN ASSOCIATION WITH NORTON ROSE FULBRIGHT US LLP

MOLITOR AVOCATS À LA COUR

MOTIEKA & AUDZEVIČIUS

NIEDERER KRAFT & FREY

OSLER, HOSKIN & HARCOURT LLP

PATRIKIOS PAVLOU & ASSOCIATES LLC

PINHEIRO NETO ADVOGADOS

PIPER ALDERMAN

PLESNER LAW FIRM

SCHRECK LAW OFFICES

SHALAKANY LAW OFFICE

SHIN & KIM

SLAUGHTER AND MAY

SOFUNDE, OSAKWE, OGUNDIPE & BELGORE

STRELIA

SZECSKAY ATTORNEYS AT LAW

TSMP LAW CORPORATION

ŢUCA ZBÂRCEA & ASOCIAŢII

URÍA MENÉNDEZ

UTEEM CHAMBERS

WOLFF GSTOEHL BRUCKSCHWEIGER ADVOKATURBÜRO

WOLF THEISS RECHTSANWÄLTE GMBH & CO KG

YOUNG CONAWAY STARGATT & TAYLOR, LLP

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Editor’s Preface ..................................................................................................viiJonathan Cotton

Chapter 1 AUSTRALIA ...............................................................................1Malcolm Quirey and Gordon Grieve

Chapter 2 AUSTRIA .................................................................................38Bettina Knötzl

Chapter 3 BAHRAIN ................................................................................51Haifa Khunji and Natalia Kumar

Chapter 4 BELGIUM ................................................................................63Jean-Pierre Fierens and Joanna Kolber

Chapter 5 BRAZIL ....................................................................................76Gilberto Giusti and Ricardo Dalmaso Marques

Chapter 6 BRITISH VIRGIN ISLANDS .................................................91Arabella di Iorio and Brian Lacy

Chapter 7 CANADA ...............................................................................112David Morritt and Eric Morgan

Chapter 8 CAYMAN ISLANDS ..............................................................126Aristos Galatopoulos and Luke Stockdale

Chapter 9 CHINA ...................................................................................139Xiao Wei, Zou Weining and Stanley Xing Wan

Chapter 10 COLOMBIA...........................................................................150Gustavo Tamayo and Natalia Caroprese

CONTENTS

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Contents

Chapter 11 CYPRUS .................................................................................162Eleana Christofi and Katerina Philippidou

Chapter 12 DENMARK ............................................................................174Peter Schradieck and Peter Fogh

Chapter 13 ECUADOR ............................................................................186Xavier Castro-Muñoz and Fabrizio Peralta-Díaz

Chapter 14 EGYPT ...................................................................................195Khaled El Shalakany

Chapter 15 ENGLAND & WALES ..........................................................200Jonathan Cotton and Damian Taylor

Chapter 16 FINLAND ..............................................................................224Jussi Lehtinen and Heidi Yildiz

Chapter 17 FRANCE ................................................................................237Tim Portwood

Chapter 18 GERMANY ............................................................................253Henning Bälz and Carsten van de Sande

Chapter 19 GIBRALTAR ...........................................................................271Stephen V Catania

Chapter 20 GREECE ................................................................................281John Kyriakides and Harry Karampelis

Chapter 21 HONG KONG ......................................................................293Mark Hughes

Chapter 22 HUNGARY ............................................................................317Dávid Kerpel

Chapter 23 INDIA ....................................................................................331Zia Mody and Aditya Vikram Bhat

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Contents

Chapter 24 IRELAND...............................................................................346Andy Lenny and Peter Woods

Chapter 25 ISRAEL ...................................................................................362Shraga Schreck

Chapter 26 ITALY .....................................................................................393Monica Iacoviello, Vittorio Allavena, Paolo Di Giovanni and Tommaso Faelli

Chapter 27 JAPAN ....................................................................................415Tatsuki Nakayama

Chapter 28 JERSEY ...................................................................................429William Redgrave and Charles Sorensen

Chapter 29 KOREA ...................................................................................443Hyun-Jeong Kang

Chapter 30 LIECHTENSTEIN ................................................................455Christoph Bruckschweiger

Chapter 31 LITHUANIA ..........................................................................465Ramūnas Audzevičius and Mantas Juozaitis

Chapter 32 LUXEMBOURG ....................................................................480Michel Molitor

Chapter 33 MAURITIUS ..........................................................................492Muhammad R C Uteem

Chapter 34 MEXICO ................................................................................508Miguel Angel Hernández-Romo Valencia

Chapter 35 NIGERIA ................................................................................524Babajide Ogundipe and Lateef Omoyemi Akangbe

Chapter 36 PORTUGAL ...........................................................................539Francisco Proença de Carvalho and Tatiana Lisboa Padrão

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Contents

Chapter 37 ROMANIA .............................................................................551Levana Zigmund

Chapter 38 SAUDI ARABIA .....................................................................564Mohammed Al-Ghamdi and Paul J Neufeld

Chapter 39 SINGAPORE .........................................................................584Thio Shen Yi, Freddie Lim and Hannah Tjoa

Chapter 40 SPAIN .....................................................................................599Ángel Pérez Pardo de Vera and Francisco Javier Rodríguez Ramos

Chapter 41 SWEDEN ...............................................................................619Jakob Ragnwaldh and Niklas Åstenius

Chapter 42 SWITZERLAND ...................................................................631Peter Honegger, Daniel Eisele, Tamir Livschitz

Chapter 43 THAILAND ...........................................................................649Lersak Kancvalskul, Prechaya Ebrahim, Wanchai Yiamsamatha and Oranat Chantara-opakorn

Chapter 44 TURKEY ................................................................................659H Tolga Danışman

Chapter 45 UKRAINE ..............................................................................678Sergiy Shklyar and Markian Malskyy

Chapter 46 UNITED ARAB EMIRATES .................................................690D K Singh

Chapter 47 UNITED STATES .................................................................701Nina M Dillon and Timothy G Cameron

Chapter 48 UNITED STATES: DELAWARE ..........................................719Elena C Norman and Lakshmi A Muthu

Appendix 1 ABOUT THE AUTHORS .....................................................739

Appendix 2 CONTRIBUTING LAW FIRMS’ CONTACT DETAILS ...769

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EDITOR’S PREFACE

The Dispute Resolution Review covers 48 countries and territories. Disputes have never respected national boundaries and the continued globalisation of business in the 21st century means that it is more important than ever before that clients and lawyers look beyond the horizon of their home jurisdiction.

The Dispute Resolution Review is an excellent resource, written by leading practitioners across the globe. It provides an easily accessible guide to the key aspects of each jurisdiction’s dispute resolution rules and practice, and developments over the past 12 months. It is written with both in-house and private legal practitioners in mind, as well as the large number of other professionals and businesspeople whose working lives bring them into contact with disputes in jurisdictions around the world.

This Review is testament to the fact that jurisdictions face common problems. Whether the issue is how to control the costs of litigation, which documents litigants are entitled to demand from their opponents, or whether a court should enforce a judgment from another jurisdiction, it is fascinating to see the different ways in which different jurisdictions have grappled with these issues and, in some cases, worked together to produce a harmonised solution to international challenges. We can all learn something from the approaches taken by the 48 jurisdictions set out in this book.

A feature of some of the prefaces to previous editions has been the impact that the turbulent economic times were having in the world of dispute resolution. Although at the time of writing the worst of the global recession that gripped many of the world’s economies has largely passed, it is has left its mark. Old and new challenges and risks remain in many parts of the world such as renewed speculation on the future of the eurozone, the sanctions imposed on Russia, and falls in the price of oil. In some regions, the ‘green shoots’ of recovery have blossomed while in others they continue to need careful nurturing. Both situations bring their different challenges for those involved in disputes and, while the boom in insolvency-related disputes and frauds unearthed in the recession remain, the coming year could see an increase in investment and acquisitions with a  subsequent focus on disputes concerning the contracts governing those investments.

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I would like to express my gratitude to all of the contributors from all of the jurisdictions represented in The Dispute Resolution Review. Their biographies start at p. 739 and highlight the wealth of experience and learning from which we are fortunate enough to benefit. I would also like to thank the whole team at Law Business Research, in particular Nick Barette, Eve Ryle-Hodges and Shani Bans, who have impressed once again in managing a project of this size and scope, and in adding a professional look and finish to the contributions.

Jonathan CottonSlaughter and MayLondonFebruary 2015

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Chapter 5

BRAZIL

Gilberto Giusti and Ricardo Dalmaso Marques1

I INTRODUCTION TO DISPUTE RESOLUTION FRAMEWORK

i Structure of the law

Under the Federal Constitution of 1988, Brazil is a  federative republic2 constituted indissolubly by the Federal Union, 26 states and the Federal District (where the country’s capital, Brasília, is located), and approximately 5,500 municipalities, divided into five regions. The Federal Constitution is the Brazilian supreme law: it governs and organises the federation, establishing (1) the basic general rules regarding the executive, judicial, and legislative branches (horizontal division);3 and (2) the powers of each of the public entities – the Federal Union, states, Federal District, municipalities and territories (vertical division).

The Federal Constitution establishes three separate and independent powers, which are organised in each federative unit (the Federal Union, states, municipalities and Federal District).4 All power is derived from the people and is exercised in their name, at three separate levels: federal, state and municipal.

The legislative branch comprises the National Congress, which consists of two chambers (bicameral): the House of Representatives and the Federal Senate. Representatives represent their electorate and serve for concurrent four-year terms, while

1 Gilberto Giusti is a partner and Ricardo Dalmaso Marques is an associate at Pinheiro Neto Advogados.

2 This means that all powers conferred to the government, in all its divisions, must be exercised to promote the nation and its citizens.

3 Brazil adopts a system of separation of powers similar to the one applied in the United States.4 Except for the judicial branch, which has no specific instance at the municipalities level (the

lower local courts are organised and conducted by the states).

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senators represent the states and are empowered for eight-year terms. All members of the National Congress are elected by direct popular vote.

The National Congress’s main duties are the following: (1) propose bills; (2) draft laws (constitutional amendments, complementary, ordinary and delegated laws); (3) draft legislative decrees and resolutions; (4) approve laws submitted by the executive branch (provisional measures); (5) ratify treaties; and (6) exercise financial and budgetary control over the federal government, with the assistance of the Federal Accounts Tribunal.

ii Structure of the courts

Brazil does not have an administrative jurisdiction, which means that the judicial branch holds jurisdiction over all disputes, including disputes involving the executive branch or state-owned entities. There are, however, administrative tribunals that are subordinated to the executive branch and have specific authority to hear and decide specific administrative cases as established by law. The administrative tribunals may also act as advisory bodies to the executive and legislative branches. The Taxpayers’ Council and the Federal Accounts Tribunal are examples of the administrative tribunals that act within the Brazilian territory.

The judicial branch consists of federal and state courts, divided into common and specialised jurisdictions. The lower jurisdiction is exercised by the state and federal courts, namely by judges who have general competence to hear cases at first instance.5 The competence to hear cases at first instance, however, may lie with the courts of appeal depending on the magnitude of the claim, the persons involved and the subject matter. The Federal Constitution provides for the right of appeal to the second instance (the court of appeal) for both federal and state courts.

In specific cases determined by law, the parties can also appeal to higher instance courts (the Superior Court of Justice, Superior Military Court, Superior Electoral Court and Superior Labour Court), which have jurisdiction over the entire Brazilian territory. The higher instance courts’ main scope is to protect the respective applicable laws and increase uniformity of the application of the law. Hence, matters of fact are not reassessed by the higher instance courts.

Finally, the judicial branch has the Federal Supreme Court as its final appeals court on constitutional matters. The 11 justices of the Federal Supreme Court are appointed by the President of the Republic and approved by the Federal Senate. A chief justice is appointed from among his or her peers.

In 2004, the Federal Constitution was amended to institute the National Council of Justice (CNJ) and the National Council of the Public Prosecutor’s Office (CNMP). The CNJ and the CNMP are the entities responsible for the external control of the judicial branch and the Public Prosecutor’s Office respectively. These entities have authority to hear complaints filed by any interested party.

5 Judges are regularly elected by competitive public examinations open to any interested individual with a bachelor’s degree in law, and not by popular election.

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iii The framework for alternative dispute resolution (ADR) procedures

ADR procedures in Brazil have undergone a dramatic change over the past 15 years. Throughout this period, the development of ADR methods in Brazil has been intimately associated with domestic factors, such as the economic growth and trade liberalisation the country has been undergoing, and the significant crisis faced by the judicial branch over the past decades, as will be detailed later in this chapter.

II THE YEAR IN REVIEW

The past year has produced important decisions by the Brazilian courts, especially in the context of actions regarding the recognition and enforcement of foreign arbitral awards in Brazil.

In Challenged Foreign Judgment No. 2005/0123803-1, more precisely a decision rendered on 7 November 2013, the Superior Court of Justice recognised foreign court judgments confirming the validity of an arbitration clause that was subsequently declared void by the Brazilian courts.

In Newedge USA LLC v. Manoel Fernando Garcia (Challenged Foreign Judgment No.  2012/0246980-3), the Brazilian Superior Court of Justice issued an important decision on 1 September 2014, recognising, for the first time, an unreasoned New York arbitral award. Notwithstanding challenges to the recognition and enforcement of the foreign arbitral award on the grounds that it purportedly violated Brazilian public policy because of the lack of reasoning, the Court concluded that it complied with the legal requirements of the law of the place of arbitration and did not violate Brazilian public policy.

III COURT PROCEDURE

i Overview of court procedure

Because of the federative structure of the country,6 the judicial branches of the states are granted the power to judge. The rules of judicial organisation are provided for in the Federal Constitution, procedural laws and internal rules of the courts,7 and normally regulate jurisdiction based on the amount of controversy and the subject of the matter at issue.

In relation to territorial jurisdiction the Code of Civil Procedure provides, as a general rule, that actions involving personal rights and rights in rem over moveable property must be brought into the courts of the place where the defendant is domiciled. In actions involving rights in rem over immoveable property, jurisdiction lies with the

6 The various bodies of the Brazilian judicial branch exercise jurisdiction.7 The internal rules of the courts usually set forth the detailed norms governing the appellate

process and causes of action within the original jurisdictions of the courts.

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courts of the place where property is located. However, there are a number of exceptions to these rules in the code.8

The Federal Constitution establishes several principles applicable to jurisdictional proceedings, such as the due process of law, the right to full defence, the right to independent and impartial judges, the guarantee of a ‘regular judge’ or a ‘court of law’, the inadmissibility of evidence obtained by illegal means, the right to a public trial, the right to a reasoned judicial decision and the right to a process of reasonable duration. It is worth emphasising that none of these guarantees and rights are absolute, and may be reduced or restricted in some manner to ensure that another guarantee or right is assured, depending on the specific case.

ii Procedures and time frames

Only the federal government may legislate in the area of civil and commercial procedure. The Code of Civil Procedure governs the institution, prosecution and judgment of civil disputes and other matters (e.g., commercial, tax or agrarian matters) for which no specific procedural rules exist.

The Code of Civil Procedure enacted in 1973 is a  federal law applicable in both federal and state jurisdictions and essentially governing civil procedure in Brazil. In addition to the Code of Civil Procedure, a  large number of laws govern particular proceedings and subjects related to civil procedure.9 Civil and commercial litigation is more usually filed before state courts. The Federal Constitution does not contemplate trial by jury in commercial and civil cases.10

The Civil Code, Law No. 10,405/2002, enacted in January 2002 and effective since 11 January 2003 – and which superseded the Civil Code of 1916, and the initial part of the Commercial Code – is the most relevant and most utilised source for the resolution of matters involving commercial and civil issues.11 Consumer rights are basically regulated by the Consumer Protection Code, Law  No.  8,070, a  federal law enacted on 11 September 1990 and effective since 11 March 1991.

Brazil is currently undergoing a crisis in the administration of justice, marked by a widespread dissatisfaction with the operation of the courts. The court cases are numerous and complex and the existing procedural system permits a multiplicity of appeals, in particular during the proceedings, and still prescribes several excessively formalistic rules. The multiplicity of appeals and excessively formalistic rules are important factors contributing to the long duration of proceedings, and consequently to the dissatisfaction with the operation of the courts.

8 Within the same jurisdiction, cases can be allocated considering the matter in dispute, and within the same type and level of court, in a lottery system.

9 The most important examples are Law No. 12,016, 2008, which governs the writ of mandamus; Law No. 4,717, 1965, which regulates popular class actions; and Law No. 7,347, 1985, which regulates public civil actions.

10 All determinations of law and fact are made by judges; juries are not used in civil proceedings.11 The Commercial Code nowadays governs merely maritime commercial matters.

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Nevertheless, it is worth emphasising that, since 1994, there have been several amendments to the Code of Civil Procedure aiming at conferring a  new active role on the courts, such as improving the operation of the judiciary and the enforceability of court decisions. In particular, in 2004, Constitutional Amendment 45-2005 implemented a  relevant reform of the judiciary, by including, for example, Article LXXVIII in the Federal Constitution to provide for a reasonable duration of process as a constitutional right.

Also, as mentioned above, a number of laws amended the Code of Civil Procedure with the aim of shortening the time frame for the conclusion of court proceedings and significantly reducing the number of cases in progress. A very important measure that was implemented, among others, is the institution of binding precedents, restricting repetitive appeals and allowing a preliminary dismissal of claims and appeals similar to cases already decided or considered manifestly unacceptable.

As also mentioned above, the possibility of resorting to the Federal Supreme Court, albeit viable, is quite limited and, in fact, has become even slighter following Constitutional Amendment 45-2005. This Constitutional Amendment added the imperative requirement of demonstration of the overall repercussions of the constitutional issues discussed as a condition of admissibility for the Federal Supreme Court to examine extraordinary appeals.

In line with this trend, Law No. 11,672/2009 further applied a similar procedure with regard to special appeals to be decided by the Superior Court of Justice. This federal law amended the Code of Civil Procedure, inserting Article  543-C to create the ‘repetitive appeals’ system, according to which the Superior Court of Justice selects one or more appeals representing the dispute and submits them to judgment by one of its court sections. The ruling established in this judgment shall apply to all other cases dealing with the same legal issue, which demonstrates the increasingly important role played by case law in Brazil.

Last but not least, in the past decade there have been significant developments concerning the use of technology by the judicial branch. In this regard, in 2006, Law No. 11,419 (the Judicial Procedure Computerisation Law) was enacted exactly to enable the publishing of decisions, notifications and other orders in an online Official Gazette and to permit the implementation of a  mandatory fully electronic process by the courts.

Since then, on the one hand, the online Official Gazette has been amply implemented by the courts and nowadays is commonly used throughout the entire Brazilian territory. On the other hand, there are still few courts that have implemented a  fully electronic process (including the possibility of presenting briefs electronically) – such as some federal courts of appeals, the Superior Court of Justice and the Federal Supreme Court. The results achieved by the courts that implemented the full electronic process are very positive, making procedural development faster and efficient.

iii Class actions

The Brazilian Legal System provides for efficient class action procedures for multiple claims. Public civil actions, for instance, are special proceedings established by Law No. 7,347/1985, which governs lawsuits involving liability for damage caused to the

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environment, consumers (represented by the general public), assets and rights of artistic, historical, touristic or scenic value, any and all general public interest, and violations of the economic order.

In this same sense, any citizen may file a  constitutional class action (popular action). The object of a  popular action is to annul an act detrimental to the public interest;12 the Federal Constitution encouraged the traditional doctrine of class action and included the environment as a  public interest that may be safeguarded by such judicial means. Finally, the collective writ of mandamus – another traditional judicial procedure enhanced by the Federal Constitution – gives legal standing to associations, unions and political parties to defend ‘transindividual’ interests, a concept being used by some legal writers in connection with environmental protection.13

iv Representation in proceedings

In general, to file any legal action before the courts, it is mandatory to be represented by a lawyer enrolled with the Brazilian Bar Association (OAB), although an exception is made in some cases before the labour courts, the criminal courts (filing of a habeas corpus, for instance) and the small claims courts.14

The relationship between attorney and client is regulated by Federal Law No.  8,906/94 (Brazilian Bar Association Statute), the General Regulations of the Brazilian Bar Association Statute and also by the Brazilian Bar Association Code of Ethics and Discipline. These provisions apply to all Brazilian lawyers, including in-house attorneys. The federal district governments and federal, state and municipal governments, and their respective entities and public foundations are generally represented in court by public attorneys.

The practice of law in Brazil by foreign attorneys is ruled by Article  3 of Law  No.  8,906/94 (the Brazilian Bar Association Statute) and Statement No.  91, of 13 March 2000, issued by the Federal Council of the OAB. The OAB authorisation for the exercise of the activity of foreign legal consultants and consultancy firms in Brazil will solely permit the performance of consultancy services in the foreign law of the country or state of origin of the professional in question, and will always be granted on a provisional basis.

v Service out of the jurisdiction

Summons in a  Brazilian court case shall be made by court by means of: (1) a  letter delivered by court official; or (2) a registered letter sent by the postal services. In both cases, a copy of the complaint shall be delivered to the defendant, who shall answer the

12 Federal Law No. 4,717/1965. The popular action consists of a class action established for the limited purpose of nullifying any acts injurious to the patrimony of any public entity.

13 Federal Law No. 12,016/2009. The writ of mandamus – which may be individual or collective – will lie to protect any ‘clear and certain right unprotected by habeas corpus, irrespective of the authority responsible for the illegality or the abuse of power’.

14 However, before the small claims courts, representation by a lawyer is mandatory to file an appeal.

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claim in a short period (usually 15 days).15 When it is not possible to find or access the defendant, the service of process may be made by publication in a local paper.

An individual or legal entity not domiciled or headquartered in the venue where the action was brought, but that may be summoned in the national territory, is served and notified by means of a domestic letter precatory issued by the court. If the individual or legal entity is outside Brazil’s territory, the service should occur by means of a letter rogatory also issued by the court. The exception is cases of probate, in which non-residents are served by means of a public notice in Brazil.

Brazil is not a party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Accordingly, in civil matters, judicial assistance is governed by: (1) the Vienna Convention on Consular Relations, and (2) the Inter-American Convention on Letters Rogatory and Additional Protocol (the provisions on service of process only).

Therefore, service of process of a  Brazilian party in a  legal action initiated at a foreign court must also be made in Brazil through a letter rogatory (it cannot be made by fax or letter sent by lawyers, for example), as mentioned above. The letter rogatory and the documents attached thereto would have to be translated into Portuguese by an official translator and sent to Brazil through both countries’ embassies. The service must be supervised by a Brazilian court and carried out by a court official.

vi Enforcement of foreign judgments

The Brazilian Federal Constitution states that any foreign award – either issued by a  judicial court or an arbitral tribunal – must be recognised by a  specific superior court prior to its enforcement before Brazilian trial courts, irrespective of the existence of reciprocity or specific international treaties or conventions between the country of origin of the judgment and Brazil. The current constitutional regulation, through Article 105, I, i, determines the Superior Court of Justice as the only competent court in Brazil to hear cases concerning the ‘recognition of foreign judgments and the concession of exequatur to letters rogatory’,16 in a procedure regulated by Superior Court of Justice Resolution No. 9/2005.

Resolution No. 9 sets forth, in Article 5, that award recognition will be granted if (1) the judgment is entered by a competent court; (2) the parties are properly served process in the original case; (3) the judgment is final and unappealable, complying with the necessary formalities in the country where the award was rendered; and (4) the judgment is legalised by the Brazilian consulate and translated by a sworn-in translator in Brazil.

In addition, Resolution No.  9 also establishes that recognition will be denied if the award or the letter rogatory awaiting exequatur violates Brazilian public policy, sovereignty or good moral principles. In the case of a foreign arbitral award, it is also

15 However, in specific cases (i.e., precautionary measures) the time limit is shortened to five days.

16 Originally, that competence was held by the Federal Supreme Court. However, the Constitutional Amendment 45-2005, dated 8 December 2004, changed this system and concentrated the competence for recognition of awards solely in the Superior Court of Justice.

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necessary to demonstrate the existence of a valid arbitration agreement and its sworn translation into Portuguese. To date the Superior Court of Justice has analysed only formal aspects of foreign judgments or awards; the merits of decisions have not been the object of examination.

Provided that all those requirements are satisfied, the initial petition together with the necessary documents is presented to a justice of the Superior Court of Justice, which will call upon the defendant to submit a defence within 15 days. When the defence is delivered, the court will order the petitioner to reply, usually within five days. At that time, the judge will seek the opinion of the Attorney General of the Republic within 10 days.

After the foreign decision or award is ratified, a  letter of judgment enforceable in the appropriate federal court will be issued. A  foreign judgment that has been ratified by the Superior Court of Justice constitutes a judicial enforcement title, and is thereby subject to the rules regarding forum and jurisdiction applicable to a judgment rendered in Brazil.

vii Assistance to foreign courts

Brazilian laws are generally favourable towards cooperation with other countries. Besides the statutory rules on judicial cooperation that apply to any foreign state, there are also bilateral treaties signed between Brazil and a number of states.17

Multilateral treaties have also been signed by Brazil with regard to judicial cooperation with countries of the American continent under the Organization of American States (such as the Inter-American Convention on Letters Rogatory, CIDIP-I, Panama, 1975, and its Additional Protocol, CIDIP-II, Montevideo, 1979; both promulgated in Brazil in 1996) and other members of the Common Market of the South (such as the Protocol of Las Leñas, 1992, as already mentioned). According to those treaties, notifications and service of process may be processed by initiative of the parties through the court system, consular or diplomatic agents and central authorities of the requesting and requested states. The main innovations, therefore, have been the use of central authorities as intermediaries and making it possible to convey the requests for cooperation in a less formalistic procedure.

viii Access to court files

All court proceedings are public, except for two types of proceedings: (1) those involving family-related matters (such as marriage, divorce, alimony, etc.); and (2) those where a public interest regarding confidentiality is at stake.

ix Litigation funding

Brazilian legislation does not provide for third-party funding for any sort of litigation or arbitration. In the absence of a specific provision, it is still debatable in Brazil whether such a practice (which in any event is not common) would be admissible or not.

17 See www.agu.gov.br/page/content/detail/id_conteudo/113478 for a complete list of all international jurisdictional cooperation treaties to which Brazil is party (accessed in December 2014).

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IV LEGAL PRACTICE

i Conflicts of interest and Chinese walls

Conflicts of interest are mainly ruled by Federal Law No. 8,906/94 (the OAB Statute), in which Section 15, Paragraph 6 provides that ‘lawyers who are members of a lawyers’ partnership cannot act in court in representation of clients whose interests are conflicting’. As to out-of-court (non-litigation) representation, clients may agree to the use of Chinese walls provided that confidentiality and privileged information are strictly guaranteed by means of proceedings previously agreed upon by the parties and their attorneys.

Such proceedings may include the following: (1) team members on one side of the Chinese wall should not discuss any restricted work matter (as defined) with anyone they do not already know to be on the same side of the wall; (2) teams acting for different clients on a restricted matter should be physically separated; (3) members of one team are not allowed into the offices of members of the other team at any time; and (4) communications in relation to a restricted matter must not be forwarded to any other person on the other side of the Chinese wall, except on an as-needed basis.

ii Money laundering, proceeds of crime and funds related to terrorism

As a  rule, Brazilian law does not provide for an obligation for persons to disclose or report criminal activity about which they have knowledge, with the exception of public agents who obtain knowledge about such activity by reason of their office.

However, if a person is subpoenaed or called to testify before relevant authorities – police, public prosecutors, regulators, etc. – regarding criminal conduct of which he or she has knowledge, then that person has an obligation to provide the information requested (with the exception of self-incriminatory information, in which case the person is entitled to remain silent). In relation to this last point, although the law does not allow the accused of a crime to lie, it establishes no penalty for an accused person who lies in a deposition.

There are very few exceptions to the lack of obligation to report criminal activity, some of which are set forth in the Money Laundering Act, established by Law No. 9,613 of 3 March 1998 (Law No. 9,613/98). Money laundering activities seek to make up a  licit origin for monies or goods originating from illicit practices; as a  consequence, money laundering crimes always originate from illicit conduct.

Article 9 of Law No. 9,613/98 indicates the persons who are subject to reporting obligations (i.e., individuals and legal entities that are obliged to disclose to the competent authorities all and any information on and regarding money laundering activities) under the sanctions of said Law, such as: (1) warnings, (2) fines based on the value of the operation, (3) disqualification of the individual to act as a company officer for up to 10 years, and (4) cancellation or suspension of the authorisation, permit or certificate for the business practice of the company. It had been indisputable since the enactment of Law No. 9,613/98 that attorneys were not subject to such reporting obligations in relation to their clients.

However, Law No. 9,613/98 was amended by Law No. 12,683 of 9 July 2012 (Law  No.  12,683/2012), which, among other amendments, expanded the list of

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persons subject to reporting obligations, including, in its Article 9, Sole Paragraph, XIV, individuals and legal entities that provide ‘consulting, audit, accounting, counselling and assistance of any nature, in operation: [a large list of operations follows]’.

The provision above has raised concerns on whether such reporting obligations would also apply to attorney services. In light of this, on 20 August  2012 the OAB issued a legal opinion stating that this provision does not apply to attorneys, based on the understanding that:a the new provision of Article 9 as amended by Law No. 12,683 contravenes the

attorney–client and work product privileges assured by the Federal Constitution and by the laws that specifically regulate professional secrecy and legal practice, and the application of reporting obligations to attorneys would adversely impact constitutional rights to legal representation; and

b Law  No.  8,906/94 regulates legal practice and creates a  specific professional secrecy between attorneys and their clients, and thus its dispositions could not be derogated by Law No. 12,683/2012, a generic law aimed at regulating criminal offences generally (not only by lawyers) and which does not provide for an express, clear and specific provision referring to attorneys or their services.

Despite the fact that the issue described above has yet to be argued before the courts on a definitive basis, the prevailing understanding is indeed that the expansion of reporting obligations established by Law  No.  12,683/2012 may not be imposed or extended to attorneys.

iii Data protection

The right to intimacy and privacy is warranted by the body of laws currently effective in Brazil. The Brazilian Federal Constitution establishes the principle of protection of privacy, and also ensures protection of professional secrecy by those whose duties require access to information that, as a general rule, is not made public. In this regard, Section 5, X and XIV provide that:

X. the intimacy, privacy, honour and image of persons are inviolable, and the right to reparation for property and moral damages resulting from violation thereof is ensured.

XIV. access to information is ensured to everyone and confidentiality of the source is protected whenever necessary for the exercise of professional activities.

As professional secrecy is at the same time a duty of the contracted professional and a  subjective right of the contracting party, it is not only supported by the text of the Constitution, but also by provisions of ordinary laws.18

18 Such as Article 229, I, of the Civil Code; Article 363, IV, of the Code of Civil Procedure; Article 197, Sole Paragraph of the National Tax Code; Article 154 of the Criminal Code; and Article 207 of the Code of Criminal Procedure.

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V DOCUMENTS AND THE PROTECTION OF PRIVILEGE

i Privilege

Article 7, II and XIX of the OAB Statute sets forth that lawyers have the right to: (1) respect for the inviolability of their offices in the name of freedom of defence and professional secrecy; and (2) refuse to depose as a witness in litigation about facts related to a person for whom he or she is acting, or acted, as a lawyer, or about facts protected by professional secrecy.

Article 27, Sole Paragraph, of the Bar Code of Ethics sets forth that communications between lawyer and client are presumed confidential and cannot be disclosed. Law firms’ information (including files, data, mail, communications and even telephone conversations) are inviolable, and as communications between a lawyer and a client are presumed to be confidential they cannot be disclosed to third parties. According to the majority of Brazilian court decisions related to attorney–client privilege, all information received from the client or gathered by the lawyer for him or her in connection with a specific cause or research is protected by the law.

As provided in Article 15, Paragraph 2 of the Bar Code of Ethics, the code also applies to law firms (professional bodies). This means that the duty of secrecy is binding upon all members of law firms, even those who are not lawyers – irrespective of whether they provide the work or advice internally, without direct contact with the final client.

Finally, it is worth emphasising that the duty to secrecy extends to the lawyer even if the power of attorney has been terminated or even if, upon the client having revealed the information to the lawyer, the lawyer refuses the representation.

ii Production of documents

The proof-taking stage of court proceedings encompasses the actual production of evidence proposed in the pleadings and the conclusive opening order. The whole process, particularly the production of evidence, is conducted entirely by the judge.

The court can, on its own initiative or by the requirement of a party, determine the production of necessary evidence. When the court understands that requested evidence is unnecessary for the outcome of the case, it may reject the request. The judge is free to analyse evidence or to consider the case record, and must indicate in the decision the reasoning as to acceptance of the evidence produced.

Generally, documentary evidence is introduced in the initial stage of ordinary proceedings by attachment of documents to the pleadings. The judge may only admit documentary evidence at a later stage to support unforeseen facts or to refute evidence presented by opposing counsel.

Documents in a  foreign language may be submitted to the court only if accompanied by a  sworn translation into Portuguese. To be valid and enforceable in Brazil, all documents executed outside Brazil must be signed before a notary public and recognised as authentic by the Brazilian consulate in the country of origin.19

19 However, as mentioned above, bilateral and multilateral treaties regarding judicial cooperation may dispense with or mitigate some of these requirements and rules.

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The general rule of evidence in Brazilian civil procedure is set forth in Article 333 of the Code of Civil Procedure, according to which the party who alleges a fact or argument is obliged to prove it by all evidence-finding procedures admitted in law. Among the evidence admissible are the following: (1) disclosure of specific documents, where a court orders a party to disclose specific documents in any of the parties’ possession; and (2) documentary evidence, where parties are free to present documents they deem necessary to complement and prove their allegations.

Full discovery is not provided for in Brazilian civil proceedings. There is, however, a procedure in which a party can request of the court the disclosure of documents in the possession of the opposing or third parties. The requesting party should specify in detail the document and its purpose, indicating the facts that relate to the document and the circumstances and grounds on the basis of which the party affirms that such a document exists and is in the possession of the other party. Because of these rigid requirements, such a procedure is hardly used.

Notwithstanding the rigid requirements, the judge shall accept the request to disclose evidence made by a party when the following three conditions are met: (1) the counterparty has the legal obligation to disclose; (2) the counterparty made reference to the document to constitute it as evidence; and (3) the document, by its content, is common to both parties.

On the basis of Article 363 of the Code of Civil Procedure, the party or the third party may refuse to exhibit a document if one of the following circumstances is present: (1) the document relates to his or her private life; (2) the exhibition of the document would violate his or her duty of honour; (3) the exhibition would bring dishonour to the party or to a third party; (4) the exhibition would publicise facts that are confidential; and (5) any other justified reasons, pursuant to the court’s opinion.

If a party unjustifiably refuses to produce the document or any other evidence requested by the court, the judge has no power to compel production. Instead, the court may merely deem as subjectively admitted the facts the other party intended to prove with the evidence not presented.

VI ALTERNATIVES TO LITIGATION

i Overview of alternatives to litigation

As mentioned above, alternatives to litigation have undergone a dramatic development in Brazil over the past 15 years. Despite the praiseworthy efforts being made in Brazil to speed up justice by reducing the number of judicial proceedings and their duration, the Brazilian judicial system is still far from meeting the conditions required for Brazil’s economic development with regard to specific disputes. This need for more efficient and appropriate means of resolving certain conflicts created a  unique opportunity for the consolidation of arbitration and other extrajudicial institutions as reliable and efficient systems.

ii Arbitration

On 23 September 1996, Law No. 9,307/96 (the Brazilian Arbitration Act) was enacted, governing arbitration in Brazil and repealing the rules on the matter under the Civil

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Code and the Code of Civil Procedure. The Brazilian Arbitration Act – which is based on several pieces of modern arbitration legislation and inspired by the UNCITRAL Model Law on International Commercial Arbitration – brought the long-hoped-for binding power and compulsory enforcement of arbitration clauses.

The Brazilian Arbitration Act permits the parties to agree, under an arbitration clause or in an arbitration commitment, to adopt the rules of an institutional arbitration body or specialised entity, whether Brazilian or foreign. The parties are further allowed to establish the place of arbitration, which can be in Brazil or abroad, as well as the language in which it will be conducted. Accordingly, it is perfectly possible under Brazilian law for the parties, whether Brazilian or not, to resolve their disputes by arbitration in accordance with the rules of any specialised arbitral body.

Another major contribution was Brazil’s ratification of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the New York Convention). The then President of the Republic, Fernando Henrique Cardoso, only signed Decree No.  4311 on 23 July 2002, approving the wording of the New York Convention and validating its terms throughout Brazil. Previously, in 1996 Brazil had ratified the Inter-American Convention on International Commercial Arbitration (Panama Convention) of 30 January 1975.

Arbitration has had an extraordinary evolution in Brazil in recent years. Issues of vital interest have been the subject of legal writings and case law, as increasingly the tendency is to recognise the validity of arbitration clauses and the effectiveness of arbitral awards. With these changes, arbitration has started to become a real choice in contracts. Today, arbitration is a reality and it is widely used, especially – but not only – in complex cases and contracts. In fact, Brazil ranks fourth among countries adopting arbitration as a dispute resolution mechanism. Between 2010 and 2013 alone, there were 603 arbitral proceedings in Brazil, in which the decisions related to a total of 13 billion reais.

Over the past 15 years, previously sceptical Brazilian legislators began to foster arbitration in many important and strategic sectors.20 Many federal laws were created to regulate and encourage the use of arbitration in specific areas such as oil and gas, concessions and permits of public services, telecommunications, the wholesale electricity market and public–private partnerships, among others.

Brazil already has a  dozen well-established arbitration institutions that have adopted their own procedures. Many of the arbitration institutions in Brazil are private, commercial operations, but some are run by trade associations to handle disputes within specific sectors and professions, such as real estate, energy or engineering. There are also arbitration institutions that exist under the auspices of bilateral chambers of commerce.

Some of the most reliable domestic dispute resolution institutions that handle a large number of proceedings in Brazil are: (1) the Centre for Arbitration and Mediation of the Brazil–Canada Chamber of Commerce, which is the oldest arbitration centre in

20 It is important to note that recently in Brazil, during the discussions about the enactment of the new Code of Civil Procedure, there has been a substantial debate related to the inclusion of provisions that will further enable and contribute to the development of arbitration in the country.

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Brazil (created in 1979); (2) the Conciliation, Mediation and Arbitration Chamber for the Centre/Federation of Industries of the state of São Paulo; (3) the Business Arbitration Chamber; (4) the Getúlio Vargas Foundation Arbitration Chamber; (5)  the Market Arbitration Chamber of Bovespa, the Brazilian stock market; (6) the Arbitration Chamber of the Commercial Association of the state of Paraná; (7) the Arbitration Centre of the American Chamber of Commerce; (8) the Arbitration Centre of the Portuguese Chamber of Commerce; (9) the Arbitration, Mediation and Conciliation Chamber of the Centre for Industries of the state of Rio Grande do Sul; (10) the Council of Arbitration of the state of São Paulo; (11) the Arbitration and Mediation Chamber of the Federation of Industries of the state of Paraná; and (12) the Arbitration and Mediation Chamber of the Council of the European Chambers of Commerce. The proceedings under the rules of all these institutions are quite standard; parties have equal participation throughout the proceedings, and the impartiality and independence of the arbitrators are guaranteed.

Of course, there are no obstacles to carrying out arbitration under the International Chamber of Commerce, International Centre for Dispute Resolution/American Arbitration Association, London Court of International Arbitration or China International Economic and Trade Arbitration Commission in Brazil. In fact, arbitration with a seat in Brazil and administered and ruled by international institutions are common and quite efficient.

iii Mediation

Most of the important agreements provide for multi-tiered clauses (mediation and arbitration), but – and this is one of the main obstacles to greater expansion of mediation in Brazil – Brazilian law does not provide for the possibility of enforcement of mediation clauses. In fact, a bill for a mediation law was set before the House of Representatives many years ago but has not yet received the necessary support.

Notwithstanding the above, and despite the absence of a  statute mandating mediation, the majority of the Brazilian arbitration institutions maintain a centre for mediation. In practice, the number of mediations taking place in Brazil – which was quite insignificant a few years ago – has been increasing notably, and several studies and programmes have been carried out to develop and establish mediation as an effective method for dispute resolution in the country. The preliminary result of these efforts is that today it is fair to assert that there are several Brazilian professionals highly prepared to act in mediation proceedings seated in Brazil or abroad, whether as mediator or party’s representative or counsel.

iii Other forms of alternative dispute resolution

More gradually, conciliation and dispute boards are also becoming important tools for dispute resolution in Brazil. The use of dispute adjudication boards (DABs), dispute review boards (DRBs) and combined dispute boards is increasing in Brazil and has become a real choice for investors and stakeholders to resolve disputes. Brazilians tend to adopt a dispute board formed at the beginning of construction contracts, with a greater preference for DABs rather than DRBs.

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VII OUTLOOK AND CONCLUSIONS

In the past few years, Brazil has taken a number of measures to improve and modernise its dispute resolution framework to adjust it to the needs raised by the great economic development of the country. Several statutes, laws and rules – including the Constitution – have been altered, amended or enacted with this purpose. Relevant new enactments include Constitutional Amendment 45-2005, which implemented judicial reform, and a number of laws amending the Code of Civil Procedure to shorten the duration of court proceedings and reduce the number of cases pending.

The current Brazilian Code of Civil Procedure was enacted in 1973, implemented on 1 January 1994 and has been modified thereafter on several occasions. This Code, however, is on the verge of being replaced by a new Code of Civil Procedure, to be enacted in the near future, with the important aim, among others, of dealing with the problem of excessive repetition of cases (cases with the same cause of action or raising the same or very similar legal issues) filed before the courts. Besides, the Brazilian courts in most states now enjoy a good reputation as to their impartiality and freedom from corruption or discrimination against foreign parties.

As to international and domestic arbitration, Senate Bill No. 406 of 2013, which proposes to amend the Arbitration Law, is pending final approval from the Brazilian Congress. The Bill maintains the same legal reasoning as the current Arbitration Law but includes amendments with a  three-pronged approach: (1) a  wider adoption of arbitration, from a  subjective and objective perspective; (2) a greater freedom for the parties to nominate arbitrators; and (3) a clearer definition of the state courts’ activities prior to the commencement of arbitration.

The legislator’s decision was not to enact a whole new arbitration law, but merely to review some very specific provisions. The core proposed changes can be summarised in three main groups: (1) filling the gaps, (2) consolidation of case law and legal practice, and (3) correction of mistakes and errors. Among the expected changes are the express possibility of electing arbitration as a mechanism to resolve disputes involving the state and state-owned entities, as well as those arising from consumer and labour relationships.

As one can see, a new arbitration-friendly legal framework has been implemented, and this has been followed by an increase in the body of case law in line with the modern arbitration laws interpreted and applied in other well-known arbitration centres around the world. Even though there are some issues that still need to be decided and settled by the Brazilian courts, the forecast for further development of arbitration in Brazil is highly positive.

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Appendix 1

ABOUT THE AUTHORS

GILBERTO GIUSTIPinheiro Neto AdvogadosGilberto joined Pinheiro Neto Advogados in 1982 and has been a partner since 1993. He heads the firm’s commercial litigation and arbitration practice. In 1991/1992, Gilberto worked as an international visiting associate at Cleary Gottlieb Steen &  Hamilton, in New York.

Gilberto holds a  LLB in law from the University of São Paulo and a  LLM (Master of Laws) degree from the University of California, Berkeley. He is president of the São Paulo branch of the British Chamber of Commerce and Industry in Brazil, vice president of the Arbitration and Mediation Center of the Chamber of Commerce Brazil-Canada, president of the Brazilian Chapter of Club Español del Arbitraje, as well as a member of the Arbitration Commission of the International Chamber of Commerce (ICC) in Brazil. He has represented several companies in arbitration proceedings under leading institutional rules in Brazil and abroad.

He is an arbitrator listed with prominent Brazilian arbitration institutions and sits as arbitrator (presiding arbitrator, sole arbitrator and co-arbitrator) in institutional arbitration proceedings, including those of ICC and the International Centre for Dispute Resolution. He also advises on litigation in international disputes in Brazilian courts and is the author of many articles on arbitration in Brazil and abroad.

RICARDO DALMASO MARQUESPinheiro Neto AdvogadosRicardo joined Pinheiro Neto Advogados in 2007 and has been an associate since 2010. His practice covers international and domestic litigation and arbitration proceedings with relevant focus on the energy, corporate, international trade and construction sectors. He also practises before Brazilian courts and administrative departments, and acts as official secretary to arbitral tribunals in Brazil and abroad. In 2013/2014, Ricardo

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worked as an international visiting associate at Skadden Arps Slate Meagher & Flom LLP, in New York.

He is pursuing a master’s degree in dispute resolution at the São Paulo University and has acted as assistant to professors in the graduate programme at the Getúlio Vargas Foundation School of Law on arbitration and litigation subjects.

Ricardo is currently the secretary of the Brazilian Chapter of Club Español del Arbitraje, and the Brazilian member of the ICDR Y&I Global Advisory Board, among other positions. He is the author of a  number of papers and lectures on international commercial arbitration and litigation matters. Recently, in  2014,  Ricardo assisted the IBA Conflicts of Interest Subcommittee in the review process of the IBA Guidelines on Conflicts of Interest in International Arbitration.

PINHEIRO NETO ADVOGADOSRua Hungria, 1.10001455-906 São PauloBrazilTel: +55 11 3247 8400Fax: +55 11 3247 [email protected]@pn.com.brwww.pinheironeto.com.br