Relevant Aspects Of The Bill Of Law For The New Brazilian Civil Procedure Code

This article was originally published in the International Bar Association Legal Practice Division - April 2011

Relevant aspects of the Bill of Law for the new Brazilian Civil Procedure Code

This article points out the main modifications set out in the Bill of Law ('Bill'1) for the new Civil Procedure Code (CPC) which is under debate in Brazil and is expected to pass shortly. According to Brazil's legislative process, the Bill still needs to be approved by the lower house (Chamber of Deputies) and signed into law by the President. Therefore, the text of the Bill might still be modified. This article is based upon the text as approved by the Federal Senate on 15 December 2010.

Context

Since the 1990s Brazil's legislature2 has been implementing a series of specific changes to the current CPC. The goals were to adapt the new constitutional rights3 procedure, modernise procedural institutions, shape them to fit into a new social reality,4 and to speed up proceedings. These reforms profoundly changed Brazil's civil procedure. They allowed anticipatory measures (that would have an effect equivalent to final rulings on the merits) to be granted at the very beginning of the proceedings.5 They simplified the enforcement of the final ruling, which became just a step of the original proceeding, as opposed to being a whole new proceeding.6 Judicial seizure of the debtor's assets was made less bureaucratic – it became possible to do it online. Also, the precedents of superior courts became more valuable7 and the rectification of procedural annulments was simplified.8

Although it became more effective, the CPC lost its systematic nature. The 64 regulations that 'reformed' it from 1 November 1973 (when it was passed) to 30 September 2009 (when the committee was set up to draft the Bill), ended up compromising the rigor and coherence of the CPC. The Bill seeks to rebuild this unity and coherence, without losing the effectiveness brought by the reforms. It is intended to become Brazil's new CPC.

The main modifications

The main changes are addressed in the paragraphs below.

International Cooperation

Unlike the CPC, the Bill regulates international cooperation by the Brazilian justice system on civil matters. According to Article 25, this cooperation will take place through international treaties, or in the absence thereof, 'based upon diplomatically established reciprocity'.

It also states that cooperation may be provided to other states or international agencies through judicial or administrative proceedings by one of the following means: (i) letters rogatory; (ii) confirmation of foreign final rulings;9 and (iii) direct aid.10

Among these cooperative acts, the Bill cites urgent measures (including freezing and seizure of assets), procedural notices or summons and production of evidence. In short, the Brazilian justice system is authorised to engage in any 'form of international legal cooperation not prohibited by Brazilian law'11 that does not violate national public policy.12

The Bill further sets forth the possibility of direct aid, based on a treaty or commitment to reciprocity,13 to be rendered by Brazil's central authority (the Ministry of Justice14) to its foreign counterpart. If, under Brazilian law, the measure to be taken locally does not require the judiciary's involvement, then the central authority will take appropriate measures to carry out the requested cooperation.15 If judicial measures are necessary, it will be incumbent on the local Federal Court to order the necessary measures, upon request by the Brazilian central authority.16 On the other hand, direct aid will not be admitted if Brazilian law sets forth a specific procedure, as in the event of confirmation of foreign final rulings.

It is important to bear in mind that according to the Bill the use of evidence obtained through international cooperation requested by Brazil must abide by the limits and conditions imposed by the supplying authority.17

Loosening the strictures of preclusion and modification of the appellate system

Another major change in the Bill concerns the preclusion system and the possibility of appealing against every interlocutory decision18 rendered by the lower court in the course of proceedings.

Under the current CPC system, interlocutory decisions handed down by judges can be immediately challenged on appeal.19 However, the flip side is that as a rule, whenever an appeal is not filed, preclusion – loss of the right to challenge the...