Legal Guide for Foreign Investors in Brazil - Apex-Brasil

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Legal Guide for Foreign Investors in Brazil 26.4. Evidence The entire proceeding, and specifically the production of evidence, is conducted by the presiding judge. In principle, documentary evidence should be presented to the court together with the complaint. Likewise, the defendant should present documentary evidence together with his response. As a general rule, other documents which may prove relevant its can be presented by the parties at any time, provided the other party has opportunity comment upon them. All non-documentary evidence should be accompanied by expert witness reports, signed by an accountant, engineer, doctor, appraiser or other specialized professional. The judge appoints the court’s experts, and questions and replies to and from the parties must be in writing. The parties may also appoint assistant experts of their own choice, to meet requirements and comments on the court experts report. The next step is the examining trial, at a place and date determined by the presiding judge, after the parties have had the opportunity to discuss documentary evidence and examine the expert reports. The parties previously submit to the judge a list of the witnesses they want examined. During the trial, the judge first examines the witnesses and then lawyers of the parties have the right to pose questions. Such questions are addressed directly to the witness, but rather to the judge, who may repeat, restate or reject such questions. Either party may give testimony but, in this case, the party is not considered a witness. Only witnesses are under oath. A written record is transcribed of the entire trial. The court’s decision may be proffered immediately, unless the parties submit a brief commenting on the testimonies and all evidence produced, in which case the presiding judge re-examines the record prior to delivering his ruling. Under the Brazilian system of processo ordinário, there is no one trial at which all evidence is produced. Indeed, evidence is produced step by step and is progressively incorporated with the aim of instructing the judge’s decision. 26.5. Court Rulings The judge’s decision is delivered in writing and contains a brief description of the parties and the issues involved, a summary of claims and counterclaims, a brief description of the facts, and the judge’s opinion on each of the issues. The decision may award a party compensation, may order a party to take certain 209
Legal Guide for Foreign Investors in Brazil measures, or may provide a precise interpretation of a contractual clause. 26.6. Provisional Remedies When a plaintiff’s lawyer files a petition, he may, in specific cases, ask for a temporary restraining order (tutela antecipada) to bring into immediate effects the final decision. For this the plaintiff must demonstrate his claim that irreparable damage may result from delay. Furthermore, the plaintiff may such relief during the course of the proceedings, when one or more of his claims are uncontested. The Brazilian legal system also foresees a writ of prevention (medida cautelar) which can be filed before or after the main lawsuit. In either case, plaintiff seeks to protect a right that is in jeopardy if a provisional measure is not granted. The judge may grant a provisional measure if he deems that both fumus boni iuris and periculum in mora are present. 26.7. Appeals The Brazilian system allows an assortment of appeals, both to final and interlocutory decisions (i.e., those that do not dismiss the case). Recently, an alteration to the Code of Civil Procedure was enacted limited the scope of interlocutory appeals. Now, a party can appeal to an interlocutory decision only if serious jeopardy or threat of irreparable damage exists (i.e., inadmissibility on appeal to a final decision). Nevertheless, in such instances, the appeal is not forwarded immediately to the court, but is placed on the record to be examined in the event that the final decision is appealed. An appeal dose not generally suspend the proceedings. The same lawyer may plead the case in the higher courts. Appeals are submitted to a panel in the State Court, composed of an even number of judges. They may review the decision in the light of their interpretation of the law and the facts. The parties may appeal further to the federal high courts, i.e. the Superior Court of Justice (STJ) and the Supreme Federal Court (STF). If a party claim violation of a treaty, a federal law, or an interpretation in conflict with federal law by the State Courts, he can appeal to the STJ. Should the claim involve a violation of the Federal Constitution, he can appeal to the Supreme Court. Both type of appeals may be filed, but the admission is highly restricted. 210
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Legal Guide for Foreign Investors in Brazil - Apex-Brasil

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