Update From Brazil - New Civil Procedural Code

Author:Mr Peter Macara, Adam Jomeen and Alexandre Lima
Profession:Clyde & Co
 
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On 16 March 2015, after four and a half years of discussions in the National Congress, the final text of the New Brazilian Civil Procedural Code was sanctioned by President Dilma Rousseff. Law no. 13,105/2015, which establishes the New Code, will come into force on 17 March 2016.

The New Code is the government's attempt to provide faster and more effective administration of justice. In Brazil, a suit may often last over five years, or, if it is against the Government or a State-owned entity such as INFRAERO (the operator of many of Brazil's airports), more than a decade, mainly by virtue of the high number of appeals available to the parties.

The largest country in the southern hemisphere with a population of over 200 million, Brazil suffers from an excess of suits that clog the judicial system. According to the latest official data released in 2014, Brazil has 99.7 million active lawsuits, with a growth rate of approx. 3.4% new claims per year. The sheer volume of proceedings prevents decisions from being rendered within a reasonable time.

Following the end of military rule in 1985, rights of broad and unrestricted access to justice for citizens were implemented through the Federal Constitution and the Consumer Defence Code (CDC), which came into force in 1988 and 1990 respectively. However, the current Civil Procedural Code, which has been in force since 1973, has been unable to keep pace with the increase in litigation. Extremely formalistic and complex, the current Code underwent many amendments during the last 20 years. Despite introducing some important advances, these amendments also weakened the Code's structure and compromised its efficiency due to excessive formality and the variety of available appeals which they created.

The New Code attempts to simplify and expedite procedure as well as ensuring greater uniformity. It adopts well-established solutions applied in other countries with both common and civil law traditions. Particularly, the increased recognition of precedents from higher courts as a mechanism to ensure greater uniformity is a key new measure.

Accordingly, first instance judges and appeal courts will be bound by judgments rendered by higher courts. Although this may seem natural in the eyes of a non-Brazilian observer (especially of Anglo-Saxon origin), such provisions represent a true innovation in the system currently in force in Brazil. Currently, the judge has the right to freely decide according to his or her own conviction,...

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