Changes In Civil Procedure And Judicial Culture Affect Business Practices

When the Brazilian Code of Civil Procedure was adopted in 1973, the need for procedural rules that would allow for effective and rapid solutions to disputes was already much discussed. Since then, many constitutional amendments and bills to improve the judicial process have been drafted and debated, and some have been adopted, such as the Arbitration Law of 1996, the reform of the Judiciary introduced by Constitutional Amendment 45/2004 and the more recent legislation that made changes to the enforcement of judicial decisions and certain types of debts.

These changes are not limited to the law, however. "Not only has the law evolved, but there has been a revolution in judicial culture, resulting in significant changes in judicial proceedings and in the routines and practices of judges, lawyers and parties," observes attorney Luiz Fernando Fraga, a partner of Barbosa, Müssnich & Aragão Advogados who practices in the area of civil litigation. According to Fraga, "as a part of this cultural change, the Judiciary has reconsidered some of its traditional stances on such questions as the right to free access to the courts, the right to a full defense and the right to appeal."

As an example, Fraga points to the favorable way Brazilian courts have dealt with arbitration, and are beginning to deal with mediation, which already enjoys considerable prestige in other countries. He adds that "arbitration, which Brazilian judges used to see as a restriction of the right to free access to the courts, is now considered to be a powerful ally in finding quick and effective resolution of the disputes that naturally arise in a complex society. With specific legislation on arbitration, and the courts' acceptance of this alternative for the resolution of disputes, especially in the last five years, arbitration has quickly become a routine part of business deals, finding its way into a wide range of contracts and establishing itself as a very common method for efficient and effective dispute resolution."

Another example of the cultural and legal changes in judicial process Fraga mentions is the strong trend in recent years to limit the parties' exercise of their rights to a full defense and to appeal. He notes that the trend can be seen not only in restrictions on the use of delaying tactics, but also...