Product Liability 2009 - Arnold & Porter LLP

Barretto Ferreira, Kujawski, Brancher e Gonçalves (BKBG) Brazil
4.7 What appeal options are available?
All types of appeal provided by the Brazilian Code of Civil Procedure
are applicable against decisions issued in civil actions on consumer
law. Thus, considering that the Brazilian appellate system provides
for various remedies against decisions issued by court and that the
consideration of each appeal would go beyond the scope of this work,
we will address only the appeals normally applied to civil actions,
which are: (a) Appeal, which can be lodged against any and all
decisions, whether or not on the merits. In an appeal, the matter
considered in the first instance will be entirely sent to the Court of
Justice of Federal Regional Court (Brazilian second instances), which
may reverse the judgment in whole or in part (ruling - collective
decision); (b) Interlocutory Appeals, a type of challenge applicable
against all interlocutory decisions (act whereby the court resolves an
incidental matter in the course of the case) of the first instance, e.g.
denial of production of a certain type of evidence; (c) Motion for en
banc rehearing, which is applicable against Appellate Court
decisions when a non-unanimous ruling (e.g. 2 votes against 1) has
reversed in the appellate stage a judgment on the merits; (d) Motion
for Clarification, which is lodged when an ordinary order, an
interlocutory decision, a judgment or ruling (collective decision)
contains some ambiguity, contradiction, or omission. Its purpose is
to amend the defective decision by clarifying its omissions or clearing
its ambiguities or contradictions; and (e) Special and Extraordinary
Appeals, which are extreme remedies that, unlike an appeal, do not
seek reconsideration of the matter. The Special Appeal is only
admissible for cases decided, in a single or ultimate instance, by the
Federal Regional Courts or by the Appellate Courts of the States,
Federal District and Territories, when the appealed decision violates
a treaty or federal law or denies their effectiveness, or also gives a
federal law an interpretation contrary to that given by another
Appellate Court (among other events). The Extraordinary Appeal
may be lodged against cases decided in a single or ultimate instance
and generally applies in the event that the appealed decision violates
a constitutional provision. The Special Appeal will be heard by the
Superior Court of Justice and the Extraordinary Appeal by the
Federal Supreme Court.
4.8 Does the court appoint experts to assist it in considering
technical issues and, if not, may the parties present expert
evidence? Are there any restrictions on the nature or
extent of that evidence?
As answered in question 4.2, in the Brazilian system, a court can
appoint experts in the cases where evidence of the disputed fact
requires special expertise, without formal restriction on the nature
and extent of evidence.
4.9 Are factual or expert witnesses required to present
themselves for pre-trial deposition and are witness
statements/expert reports exchanged prior to trial?
Not applicable. There is no pretrial stage in the Brazilian legal system.
4.10 What obligations to disclose documentary evidence arise
either before court proceedings are commenced or as part
of the pre-trial procedures?
In the Brazilian legal system, all types of evidence are produced in
court and production is directly presided over by the judge of the
case. Thus, it is up to the judge to consider the utility of the type of
evidence requested by the parties by approving those deemed
appropriate for the resolution of the case or otherwise denying.
ICLG TO: PRODUCT LIABILITY 2009
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Note that, only through very exceptional remedies, evidence can be
collected in the evidentiary stage (e.g. incidental preliminary
injunction) or even before the filing of the claim (e.g. preparatory
preliminary injunction), and even in these cases, evidence must be
produced before the judge of the case. In addition, in these cases,
the party must demonstrate in court that it has a fair likelihood to
succeed in its claim and also prove that there is likelihood of harm
to its interests in the ordinary course of litigation.
4.11 Are alternative methods of dispute resolution available e.g.
mediation, arbitration?
After the enactment of the Brazilian Arbitration Law, Law
9307/1996, the alternative methods of dispute resolution has gained
prominence in Brazil. According to such law, it was possible to
overcome former obstacles such as the absence of a legal regime to
ensure enforcement of the arbitration agreement and the need for
double exequatur of the arbitration award.
Specifically in consumer relations, it is worth making a remark on
the arbitration clause in adhesion agreements. It so happens, in
compliance with the very concept of Arbitration, based on the
freedom of the parties, the choice of arbitral jurisdiction must be
specifically expressed by all parties, especially the consumer, which
is specially protected by the Brazilian legal system.
5 Time Limits
5.1 Are there any time limits on bringing or issuing
proceedings?
The Consumer Protection Code provides for laches of claims for
defective products and services and a limitation period for claims
for damages arising from consumer injuries.
5.2 If so, please explain what these are. Do they vary
depending on whether the liability is fault based or strict?
Does the age or condition of the claimant affect the
calculation of any time limits and does the Court have a
discretion to not apply time limits?
In case of a defective product, the consumer’s right to claim expires
within thirty (30) days for the supply of non-durable products and
services and within ninety (90) days for durable products and
services. With respect to the time count, it commences when the
product is actually delivered or the services are completed. Laches
is also prevented by: 1) claim proven to be asserted by the consumer
against the supplier of products and services pending its negative
response, which must be unequivocally transmitted; 2)
commencement of civil inquiry; and 3) in case of hidden defect,
laches commences when the defect is evidenced.
We emphasise that such periods for claims for defective products
and services prescribed by the Consumer Protection Code are more
beneficial to the consumer than those specified in the Brazilian
Civil Code in the doctrine of hidden defects and are preferred by the
Brazilian case law in cases of consumer lawsuits.
There is no change in the limitation periods based on the
consumer’s age or physical condition.
5.3 To what extent, if at all, do issues of concealment or fraud
affect the running of any time limit?
The statutes of limitation set forth by the law are not affected by
issues of concealment or fraud.
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