Litigation 2024

Last Updated December 05, 2023


Law and Practice


TozziniFreire Advogados is a leading law firm in Latin America, operating in all areas of business law and with an impressive track record in serving local and foreign companies from the most diverse industries. With branch offices in several cities in Brazil (São Paulo, Rio de Janeiro, Brasília, Porto Alegre, and Campinas), as well as in New York, TozziniFreire is committed to delivering consistent, high-quality service to its clients nationwide. The firm has played a key role in many of the most significant transactions in the Brazilian market, contributing to the growth of the country’s economy in recent decades. The significance of the firm’s work is frequently acknowledged by esteemed national and international publications, based on independent research interviews with professionals from some of the world’s largest companies.

Brazil's legal system is based on civil law, employing an inquisitorial model where proceedings are primarily overseen by a judge. The judge has the discretion to dictate the production of evidence ex officio. Although largely controlled by the judge, parties can, subject to approval, tailor portions of the proceedings and agree on evidence production. Proceedings are mainly carried out through written submissions, with opportunities for oral arguments to be presented. There are no jury trials; instead, cases are adjudicated by a single judge, who reviews all submissions and evidence before rendering a decision. In the second instance and superior courts, cases are handled by a panel of judges.

Brazil’s court structure is divided into general courts and specialised courts, which include labour, electoral, and military courts. In the first instance courts, cases are typically decided by a single judge, while appeals at courts of appeals are generally determined by a panel of three judges. The superior court of appeals has a limited remit, reviewing cases involving the interpretation of federal law by courts of appeal, and is responsible for ensuring that federal law is interpreted uniformly. The Supreme Court has jurisdiction over constitutional matters.

In the general courts, there are federal courts and state courts. Federal courts have jurisdiction over cases involving the federal government or federal entities, such as agencies. State courts have jurisdiction over all other matters not covered by federal courts. In major cities, courts are organised by specialty, such as family, commercial, intellectual property, and insolvency courts.

As a general rule, court cases in Brazil are open to the public. However, there are exceptions, including family law cases and judicial measures that assist in arbitration or the enforcement of arbitral awards. Additionally, parties have the option to request confidentiality for specific proceedings, provided they supply justifiable reasons. The judge has the discretion to grant or deny such requests. Cases that involve competition and antitrust matters, for example, are typically confidential due to the sensitive commercial information they contain.

Except for specific proceedings in small claims and labour courts, parties are required to be represented by an attorney who is duly registered with the Brazilian Bar Association. Additionally, a corresponding power of attorney must be included in the case records. Foreign lawyers who are not registered with the Brazilian Bar Association are not permitted to conduct cases in these courts.

There is no specific regulation on third-party funding in Brazil and to that extent, what is not prohibited should be understood as permitted, at least in terms of negotiable rights.

Please see 2.1 Third-Party Litigation Funding.

Please see 2.1 Third-Party Litigation Funding.

Please see 2.1 Third-Party Litigation Funding.

A third-party funder may fund (i) court costs, such as court fees to file a claim, costs associated with summonses and other communications, as well as appeal fees; (ii) fees for both court-appointed experts and party-selected experts; (iii) attorney fees; and (iv) any other costs related to the litigation.

Contingency fees, or success fees, are permitted. Parties and counsels are free to negotiate these fee arrangements. While it is advisable for such agreements to be put in writing, oral agreements are also considered valid, provided there is adequate evidence to substantiate what was agreed upon.

Please see 2.1 Third-Party Litigation Funding.

There is no pre-action requirement for the parties to initiate proceedings, but if the claim arises from a contract with a mediation clause and the parties have agreed not to initiate proceedings, the judge will suspend the case until the conclusion of mediation. Naturally, the party initiating the legal action must show that their rights have been violated and that the defendant did not voluntarily remedy the violation, thereby necessitating court intervention.

Statutes of limitation in civil cases are not as straightforward as one might expect. The are several different periods applicable, depending on the underlying matter. The general rule is ten years for statutes of limitations (maximum period) if no other period is provided in law for a specific matter. For instance, statute of limitations period is:

  • one year for insurance claims, creditors claims against administrators winding up a company;
  • two years for alimony payments;
  • three years for rental payments, civil claims deriving from a breach of law (not contractual liability), akin to tort;
  • five years for payment of ascertained debts; and
  • ten years for contractual claims.

The usual triggering event is the violation of a right, although numerous exceptions exist in law. Additionally, there are two prevailing interpretations for such triggering events, particularly in cases deriving from breaches of law (tort):

  • the term begins with the violation of the law, known as “objective action nata”; and
  • the term begins when the victim becomes aware of the violation, and this awareness can sometimes be presumed.

The statute of limitations can be suspended in certain cases and may also be interrupted – but only once – to restart from the beginning. This can occur, for example, if a party files a specific court motion to interrupt the statute of limitations, providing a clear description of the matter and serving notice of the motion to the defendant.

Brazilian Courts have concurrent jurisdiction with foreign courts in relation to claims:

  • involving a defendant domiciled in Brazil, including a foreign legal entity with an agency or branch in Brazil;
  • regarding obligations to be performed in Brazil;
  • arising from events or actions occurring in Brazil;
  • related to alimony, if the creditor resides or is domiciled in Brazil or has relations with Brazil, such as ownership of real estate, income or economic benefits;
  • related to consumer issues, if the consumer resides or is domiciled in Brazil; and
  • where the parties have expressly or implicitly agreed to Brazilian jurisdiction.

Brazilian Courts have exclusive jurisdiction in relation to:

  • claims regarding real estate located in Brazil;
  • confirmation of wills, probate proceedings and apportionment of assets located in Brazil, even if the deceased is foreign or domiciled in a foreign country; and
  • divorce cases and apportionment of assets located in Brazil, even if one of the parties is foreign or domiciled in a foreign country.

The initial complaint is the backbone of civil procedure. It must necessarily indicate:

  • the court where the claim is being filed;
  • full names, identification or tax enrolment numbers of the parties, along with their addresses, including email; for individuals, marital status and profession should also be stated;
  • a detailed account of the factual circumstances and legal basis for the claim, as well as the relief sought; and
  • a precise description of the relief sough (generic relief is allowed only in exceptional cases, such as when the specific consequences of the claim’s subject matter are not yet clear, while alternative or subsidiary reliefs can be combined in a single complaint if compatible);
  • the amount in dispute;
  • the evidence the claimant intends to produce in relation to the facts; and
  • whether the claimant wishes for a conciliation/mediation hearing to occur after the case has been served but before the respondent submits their defence.

The court may request that the claimant amend the complaint to present/correct the information indicated above. Documents available to the claimant must be attached to the complaint.

Before the case is served, the claimant can amend the complaint without needing the respondent’s consent. After service, however, the respondent’s consent is required for any amendments. Nonetheless, changes are permissible until the court makes a decision on the factual matters in dispute and the relevant evidence to be produced.

The Court administers the service of the case to the respondent, prioritising electronic means via the respondent’s email address registered with the court. State-owned companies and private entities must have email addresses registered with the courts to receive service and other notices. If the defendant fails to acknowledge receipt of electronic service within three business days, alternative methods are employed: (i) regular mail; (ii) writ of summons via a court clerk; (iii) in-person service by a court clerk if the defendant attends the court; or (iv) public notice. The claimant must give reasons for not confirming receipt of electronic service and may be subject to a fine.

For parties outside of the court’s jurisdiction and without an email address registered with the court, the service is initially attempted via post. In cases of non-receipt, a letter rogatory is dispatched to the court where the defendant resides. International defendants are exclusively served through letters rogatory.

Defendants are given 15 business days to file a defence, with the commencement of this period subject to specific conditions. This defence must be comprehensive, encapsulating all plausible arguments – both procedural and substantive, and factual and legal – accompanied by all pertinent documents available to the defendant. Any counterclaims must be included in this initial defence. Subsequently, the claimant will be notified to furnish a rebuttal and respond to any counterclaims, as applicable.

If defendants fail to respond, they are considered to be in default, and the claimant’s factual assertions are deemed to be true, with certain exceptions. These exceptions include: (i) when one defendant responds in cases involving multiple defendants; (ii) when the claim involves non-negotiable rights; (iii) if the initial complaint is missing a crucial document necessary for proving the claim in question; or (iv) when the claimant's allegations lack credibility or are inconsistent with the evidence presented to the court.

A defendant in default has the option to intervene in the case at any subsequent point without affecting any proceedings that have already occurred; the case will not retrogress.

While the general principle is that individuals cannot litigate on behalf of others in court, there are exceptions, notably in the form of collective claims. The law outlines specific types of collective actions, such as public civil action and popular action.

Public prosecutors, the public defence office, federal, state and municipal governments, governmental agencies, state-owned companies, foundations, mixed capital companies and certain associations have standing to file public civil actions to pursue liability and compensation for damages in respect, inter alia, of the environment, consumers and certain assets and rights.

Conversely, any citizen has the right to initiate a popular action aimed at nullifying actions detrimental to public heritage. This includes public agencies, mixed capital companies, and other entities where at least fifty percent of their capital or annual income derives from public funds. For the purposes of these actions, “public heritage” is defined broadly to include assets and rights of economic, aesthetic, historical, tourist, and natural significance.

The Brazilian legal system departs from the opt-in and opt-out models commonly seen in class actions in other jurisdictions. Instead, it employs a unique binding framework that considers both the outcome of the legal action and the nature of the claim.

In relation to public civil actions, related individual lawsuits may continue regardless of the collective action, meaning that different courts could determine the payment of collective and individual damages. Individual claimants have the option, though not the obligation, to request the suspension of their individual suit pending the outcome of the collective action. Should they choose to do so, they may benefit from the results of the collective claim, depending on its merits.

There is no specific requirement to provide clients with a cost estimate of the potential litigation at the outset, but the Ethical Code of the Brazilian Bar Association provides that counsel must clearly inform the client about the risks and consequences of litigating.

The legal process is conducted primarily through written submissions. There is no jury trial, and the case will be decided by a judge who has received and is able to review all arguments and evidence presented by the parties to issue a decision. Both the initial complaint from the claimant, and the defence presented by the respondent, must be thorough and present all pertinent documents to the respective party.

All procedural issues that may lead to an early termination of the case must be raised and argued in the defence. There is no specific interim application or motion before hearing, as all issues should already be dealt with in the defence. However, the parties are free to file petitions at any time to reiterate aspects of their defence that could lead to an early termination or summary judgment and that should be reviewed by the court at the earliest opportunity.

See 4.1 Interim Applications/Motions.

See 4.1 Interim Applications/Motions.

Third parties with a legal interest, as opposed to mere economic interest, in the outcome of a case may apply for joinder. A legal interest entails a position that could be affected by the outcome of the case. The joinder of a third party may be opposed by the existing parties, and the court will issue a ruling on the matter. Once joinder is granted and a final, non-appealable decision is reached, the third party is precluded from challenging the fairness of that decision in a future claim.

There are other possibilities to join a claim:

  • Any party can request the joinder of a third party who is either (a) the immediate seller of the property at issue, and either the claimant or defendant owns that property; or (b) legally or contractually bound to indemnify the losing party’s losses.
  • The defendant may seek the joinder of (a) the guaranteed party if acting as a guarantor; or (b) other co-guarantors or co-debtors.
  • Creditors may apply to “pierce the corporate veil” to include additional parties they wish to hold accountable, in line with legal provisions. This request can be made at any stage of the proceedings, and it will lead to the third party being served to respond. The main case will be suspended until a decision on the application is made.
  • Individuals, entities, or representative class entities can join the suit as amicus curiae in cases of high relevance, specific issues, or those with significant social impact.

There is no overarching requirement for the claimant to provide security for costs. However, exceptions exist for claimants who are either foreign nationals or Brazilian residents living abroad and who own no real estate within Brazil. In such cases, the claimant must post a bond sufficient to cover court costs and any attorney fees awarded by the court.

This security requirement does not extend to counterclaims or situations governed by international treaties to which Brazil is a signatory. Additionally, the rule is inapplicable in enforcement proceedings.

As a rule, no costs apply for interim applications or motions. In case of interlocutory appeals filed against interim decisions, appeal costs will apply and must be paid by the appellant party. However, such costs are usually not very significant.

While Brazilian procedural law does establish specific terms and deadlines for courts to issue decisions, these are generally considered as guidelines rather than strict mandates. Given the vast geographical expanse of Brazil and the numerous courts across the country, the actual timeframe for a case can vary significantly. Factors influencing this include the specific court to which the case is submitted and the unique complexities each case presents.

In Brazil, the concept of discovery, as understood in the US, is not applicable. Each party is responsible for submitting to the court the documents it holds that substantiate its claims and expert reports. Oral evidence, such as witness testimonies, is presented in a court hearing specifically arranged for that purpose, in the presence of the presiding judge, after the main written submissions have been filed by both sides.

Parties are not obliged to disclose all evidence they possess, especially if it contradicts their own interests or claims. However, either on its own initiative or upon request, the court may compel a party to present specific documents or items. To initiate such a request, the requesting party must provide a detailed description of the evidence sought, the purpose of its submission, and its relevance to the case. The party must also justify its belief that the evidence exists and is in the possession of the opposing party.

The requested party may respond to such requests and the judge will review these requests and will decide whether the document/item must be presented. A failure to comply with the court’s order to produce the evidence can result in the requesting party’s claims being deemed true.

If the required document or item is held by a third party, the judge will arrange for the third party to be served and will then decide on the necessity of producing the evidence.

Exceptions to this compulsion include situations where the document or item:

  • relates to family matters;
  • could compromise personal honour;
  • could cause dishonour to the party or third parties, their relatives, or risk criminal prosecution;
  • is protected by professional confidentiality; or
  • does not need to be produced in view of a legal provision or for other material reasons, as per the judge’s discretion.

See 5.1 Discovery and Civil Cases.

See 5.1 Discovery and Civil Cases.

How Evidence is Produced in a Civil Case

Parties are required to retain and produce documents that back their claims and defences.

The burden of proof lies with the claimant to prove the facts underlying their rights, and with the defendant to prove the facts that impede, modify, or terminate the claimant's rights. However, in certain cases provided by law (eg, consumer law), or depending on the circumstances of a given case, the judge may shift the burden of proof to the other party if it is impossible or extremely difficult for the respective party to produce the relevant evidence. The burden of proof can also be subject to agreement between the parties, as long as it does not refer to non-negotiable rights or cause extreme difficulty for one side. In addition, parties are allowed to enter into other procedural agreements on the production of evidence and other aspects of the proceeding, subject to the judge’s approval.

As a rule, the claimant must attach relevant documents to the complaint, the defendant to the defence, and the claimant to the rebuttal. Further submissions of documents must be justified (eg, why they were not presented earlier). The court must grant the other party the opportunity to comment on any new documents submitted, in the interests of due process.

Depending on the nature of the claim and the disputed issues, the judge may rule on the case after the complaint, defence, and rebuttal round of submissions. This can happen in the following circumstances:

  • No further evidence is needed. This means that the documents already submitted to the court are sufficient for the judge to make a decision.
  • The defendant is in default. 
  • There is a procedural problem that hinders the lawsuit from continuing until its end (for example, lack of standing or lis pendens).
  • In case the court recognises the statute of limitation or when parties reach a settlement.

The judge may also issue interim or partial awards if part of the relief sought is not disputed by the parties or is sufficiently evidenced by the documents already submitted to the court.

If the case cannot be decided on the documents submitted during the complaint, defence, and rebuttal round of submissions, the judge will issue a decision on the following:

  • any pending procedural issues;
  • the disputed facts that need to be clarified by further evidence;
  • which party is responsible for producing which evidence;
  • the legal issues to be decided; and
  • whether a hearing is needed to produce oral evidence.

The judge can determine the production of evidence on their own initiative (ex officio) or grant or deny requests for the production of evidence made by the parties. From an inquisitorial perspective, the judge is considered the addressee of the evidence. As the one who will resolve the dispute, the judge ultimately decides what evidence they need to make a decision.

Either ex officio or upon request of the parties, the judge may order the production of the following:

  • further documents (see 5.1 Discovery and Civil Cases);
  • expert evidence, such as expert investigations and reports;
  • testimony of the parties or their legal representatives (a party can only request the deposition of the other party, not their own);
  • depositions of witnesses; and
  • judicial inspections (highly unusual, when the judge decides to directly examine something, such as the vehicles and/or the place of a car accident in order to better understand how things happened).

In the case of expert investigations (eg, economics, accounting, engineering), the court will appoint its own expert, and the parties will be allowed to appoint their own respective experts to assist the court-appointed expert. The court expert will submit a report with their conclusions, which both sides and the respective experts can comment on. If technical issues remain unclear, the judge may schedule a hearing for the court expert to clarify specific issues raised by the parties in relation to the report.

Parties and witnesses’ testimony is taken at a hearing presided over by the judge. The parties must submit a list of witnesses by the deadline set by the judge, prior to the hearing date. The parties are entitled to question witnesses directly, but the judge may intervene if they find a question irrelevant or inappropriate.

Hearings can be held in person or online and are recorded. A summary of the hearing is prepared by the court, reviewed, and signed by the parties. After the hearing, the parties are given the opportunity to submit closing arguments, and the judge will then issue a decision (which can be appealed).

The Early Production of Evidence

In addition to the production of evidence within a civil lawsuit, Brazilian civil procedure rules also provide for a specific court proceeding limited to evidence production, known as early production of evidence.

Early production of evidence is allowed in the following circumstances:

  • There is a reasonable risk that the evidence will become impossible or extremely difficult to produce later, after all initial steps of the civil lawsuit are taken. In this case, time and urgency justify the early production.
  • The evidence to be produced may promote or enhance settlement between the parties.
  • Prior knowledge of the facts may give grounds for or prevent the initiation of a lawsuit.
  • The party needs to justify the existence of a fact or legal relationship for documentation purposes.

The court where the evidence is located or where the defendant is located has jurisdiction for early production of evidence. The main claim does not have to be subsequently filed with the same court.

The court will review the initial complaint and determine whether to serve the case on the defendant. The defendant may argue on the convenience or possibility of producing the evidence. In principle, there is no defence to early production of evidence, and the judge cannot and will not decide on the merits of any right. Once the evidence is produced, the case is closed.

In Brazil, attorney-client privilege, also called “professional secrecy”, encompasses any and all information known by the attorney by virtue of their professional relationship with their client (or former client), regardless of whether it is a domestic or foreign client, including written and verbal communication.

Attorney-client privilege constitutes a right and a duty of the lawyer in connection with the exercise of the legal profession and is not conceived merely as the client’s right. Upon being admitted to the Brazilian Bar Association, an attorney must abide by the rules governing attorney-client privilege.

Information subject to attorney-client privilege can be both:

  • the information given by the client themselves; and
  • the information gathered by the attorney in connection with their practice.

Privilege also applies to witnesses, with very narrow exceptions.

See 5.1 Discovery and Civil Cases.

Injunctive relief can be granted in Brazil if the party seeking the relief can prove the following:

  • Likelihood of success: The party must show that, based on the facts and the law, it is likely that the court will ultimately grant the relief sought.
  • Irreparable harm: The party must show that there is a risk that it will suffer irreparable harm, or harm that is very difficult to remedy, or that the final relief would become redundant if the injunctive relief is not granted.

In very specific cases, injunctive relief can be granted even if there is no urgency. For example, injunctive relief may be granted if the facts can be proven with documents and the underlying legal issue has already been settled by a binding precedent.

If a creditor has a money judgment or a credit instrument and can prove that the debtor may dispose of assets to avoid payment, the creditor may obtain an injunction to freeze the debtor’s assets.

Injunctive relief to prevent parallel proceedings in another jurisdiction is not available in Brazil.

The arrangements for obtaining urgent injunctive relief vary widely from court to court and from case to case. However, urgent injunctive relief applications are typically reviewed quickly, within 24 hours to 15 days.

Injunctive relief can be obtained on an ex parte basis, but this is exceptional. The party seeking the relief must prove that if it is not granted ex parte, they will suffer irreparable harm or that the relief will likely be useless.

The applicant for injunctive relief may be held liable for damages suffered by the respondent if the respondent successfully discharges the injunction, regardless of whether the injunction was granted ex parte or not. In some cases, the court may require the applicant to post a bond as a sign of good faith and to secure potential damages.

In principle, injunctive relief can be granted against the respondent's worldwide assets, but the effectiveness of the injunction may vary depending on where it needs to be enforced.

Injunctive relief cannot be obtained directly against third parties, but everyone must observe and comply with a court decision. For example, in a family lawsuit, the court may order Party B to pay 20% of their earnings in alimony to Party A and issue a communication to Party B’s employer to proceed with the payments directly to Party A. Although the employer is not a party to the lawsuit, they must comply with the court determination.

If a respondent fails to comply with the terms of an injunction, the court may impose fines and other coercive measures. These measures are intended to compel the respondent to comply with the injunction.

See 1.1 General Characteristics of the Legal System, 4.1 Interim Applications/Motions, 5.1 Discovery and Civil Cases and 5.4 Alternatives to Discovery Mechanisms.

In complex cases, the court may schedule a hearing with the parties to determine the contentious issues and the evidence to be produced, including for a future hearing for the deposition of the parties or witnesses.

At the end of the hearing, each counsel may present oral closing arguments for a maximum of 30 minutes. Additionally, attorneys have the right to access and meet with the judges, including outside of the hearings provided for in the Code of Civil Procedure. In the case of appeals filed against first instance decisions, the Brazilian Code of Civil Procedure provides for the presentation of oral arguments, with a maximum limit of 15 minutes per party.

In Brazil, there are no jury trials in civil cases.

The main principles governing the admission of evidence in Brazil are truth, impartiality, efficiency, and good faith.

Evidence can be categorised into three main types: documentary, oral, and expert.

  • documentary evidence: any written or electronic document that can support or prove a party’s claim;
  • oral evidence: testimonies given by witnesses or parties involved in the case; and
  • expert evidence: specialised knowledge and opinions on technical or scientific matters provided by experts; the weight given to the expert’s opinion is not binding on the judge, who may reach their own conclusions based on all the evidence presented.

To be admissible, evidence must meet certain requirements, such as relevance and legality.

  • Relevance: The evidence must directly or indirectly contribute to the establishment of the facts in dispute.
  • Legality: Illegally obtained evidence is generally not admissible, as it violates the principles of legality and due process.

The judge has the authority to accept or reject evidence based on its compliance with the legal requirements. The judge may also order the parties to present additional evidence if deemed necessary for a fair and complete evaluation of the case.

Regarding the evaluation of evidence, the judge must analyse and weigh the evidence presented by both parties. The judge determines the admissibility and weight of evidence based on its relevance, credibility, and consistency with other evidence. The judge is also responsible for deciding whether the evidence is sufficient to prove the facts in dispute.

Expert testimony is permitted. The court itself will appoint an expert to gather technical knowledge or guidance. The appointment can be made ex officio or upon the request of one of the parties (see 5.4 Alternatives to Discovery Mechanisms).

The expert’s role is to provide an impartial opinion based on the specific questions or issues raised by the court or the parties. The expert will examine the evidence, gather information, and prepare a written report presenting their findings and conclusions. The report can include explanations, interpretations, or recommendations as required by the court.

See 1.3 Court Filings and Proceedings.

A judge can intervene in several ways. They may interrogate witnesses both before and after the parties pose their questions, although it is more common for the judge to ask questions prior to the parties. The judge may also prevent the parties from asking questions that are leading, irrelevant, or repetitive (Article 459 of the Brazilian Code of Civil Procedure. Additionally, drawing from the testimonies presented, the judge can, at their own initiative, order the questioning of witnesses mentioned in the parties’ statements, or those who have testified during the hearing. The judge can also initiate the cross-examination of witnesses when their accounts of events differ.

In general, judgments in more complex cases are issued later, often after the submission of final written arguments. Only in simpler cases, particularly those proceedings before small claims court, is the judgment rendered during the hearing.

According to the report “Justice in Numbers 2023”, issued by the Brazilian National Council of Justice, electronic proceedings have an average duration of three years and five months, while proceedings conducted in non-electronic form have an average duration of ten years and ten months. Since March 2022, all new cases must be filed in electronic form.

The same report indicates that the historical average duration of proceedings, from initial complaint to judgment, is two years and one month. This timeframe extends slightly to two years and three months in state courts, which tend to handle a higher volume of commercial dispute cases. When it comes to appeals, state courts are expected to take an average of seven months for a judgment in electronic proceedings, whereas federal courts take longer, averaging one year and seven months.

Once a case is commenced, it must be closed by a court decision. This can happen due to procedural issues or matters of merit, such as the withdrawal of the claim by the claimant (which must be agreed to by the defendant if the case has already been served) or a settlement agreement between the parties.

In civil claims related to negotiable rights, the court will typically only review the formal aspects of the settlement agreement.

In cases where the Public Prosecutor’s Office is required to participate, the settlement agreement must be approved by the Public Prosecutor’s Office before it can be ratified by a judgment. Otherwise, the agreement will be null and void.

In Brazil, out-of-court settlement agreements are permissible, and they can include confidentiality clauses. If an agreement is made within a court setting and the proceeding has been designated as confidential, the confidentiality of the agreement will be upheld.

If a settlement agreement is signed in court, it can be enforced directly in the existing proceeding. If the agreement is signed out of court, a separate proceeding must be filed for this purpose. The type of proceeding will vary depending on the nature of the agreement. If the agreement is considered an enforceable title, an enforcement proceeding may be filed. If the agreement does not meet the requirements for recognition as an enforceable title, it may be the subject of a proceeding under the ordinary procedure.

Both in-court and out-of-court settlement agreements can be declared void in a separate proceeding. However, the interested party must prove that there was a breach of consent, deceit, or malice. The agreement cannot be annulled simply because the party has changed their mind.

In Brazil, the remedies available to a victorious litigant can encompass the following:

  • payment of a sum, which might cover moral or material damages;
  • performance of a specific action;
  • refraining from performing a particular action; or
  • handing over a defined or undefined item.

Damages can be categorised into moral damages, collective moral damages, and material damages. Material damages further include emergent damages and loss of profit.

Brazilian law does not provide for punitive damages. Compensation must be commensurate with the extent of the damage. Material and moral damages must generally be proven, but there are cases where moral damages are presumed (in re ipsa), such as undue inclusion in a defaulter’s register, undue protest of a title, or improper use of a trademark. In all cases, judges must observe the principles of proportionality and reasonableness when setting the amount.

In case of contractual liability, interest accrues from the date on which the losing party was served with the lawsuit. On the other hand, in case of non-contractual liability, interest accrues from the date of the damaging event.

Enforcement of money judgments, comprising ascertained amounts, takes place in the same court that issued the judgment. The debtor is served with a notice to pay the amount, subject to accrual of a fine and court-awarded attorney’s fees. If the debtor fails to pay, the creditor can request the court to attach the debtor’s assets, including freezing bank accounts. Attached assets must be appraised and liquidated, with the proceeds being applied to the payment of the debt.

The enforcement proceeding can be provisional, when the creditor executes a judgment that is not yet final and unappealable, in which case payment is usually subject to the creditor posting a guarantee. Once the judgment becomes final and unappealable, the enforcement proceeding becomes definitive.

Foreign judgments must first undergo a confirmation proceeding with the Superior Court of Appeals (Superior Tribunal de Justiça or STJ), in which formal aspects of the decision will be reviewed. This is a mandatory procedure in Brazil for foreign court decisions to become effective in Brazil.

Once the STJ confirms the foreign judgment, the creditor can file for the enforcement of the judgment. The enforcement proceedings will be processed before the federal court.

The Brazilian Civil Procedure Code provides for nine types of appeals.

The first and most common is the appeal against the final decision of a lower court to grant or reject the relief sought by the claimant.

Interlocutory appeals can be filed against decisions issued by the lower court during the proceeding and before the decision on the relief sought by the claimant.

As a rule, appeals are judged by a panel of three judges from a court of appeals, but in some cases, the reporting judge can rule on the appeal. If the the defeated party wants to have the review by the panel, it must file a specific interlocutory appeal within the relevant court of appeals.

When a decision or judgment at any level exhibits omission, ambiguity, or contradiction, a motion for clarification can be made.

For cases that are filed directly with courts of appeals, due to rules of jurisdiction the respective decision will be subject to the so-called ordinary appeal to the Supreme Court of Justice or the Superior Court of Justice.

On the other hand, decisions on appeals filed with courts of appeal can also be challenged and be reviewed by:

  • the STJ, if there is an infringement or denial of federal law sections, or if a law section is interpreted differently compared to another court of appeals; or
  • the Supreme Court (Supremo Tribunal Federal or STF), if it deals with constitutional issues.

These two appeals have limited scope and must meet strict formal requirements, initially reviewed by the president or vice-president of the court of appeals.

If an appeal is deemed inadmissible, the party can still appeal to force a review of the formal requirements by the STJ and STF. If granted, the merits of the appeal will also be reviewed.

Within the STJ and STF, parties can file for reconsideration if a judgment contrasts with a verdict given by another collective deliberative body within the same court.

In principle, all parties who have a claim or relief rejected can appeal, if they meet the formal requirements. Some interlocutory decisions are not appealable, and the party must raise the issue in the appeal against the final decision.

The party is obligated to pay the relevant costs and lodge the appeal within the stipulated period of 15 working days. However, motions for clarification have a shorter deadline of five working days, and for small claims courts, it is ten working days. The countdown begins upon the parties’ notification of the decision, conveyed through their respective legal representatives.

All subjects presented in the appeal brief are taken into account when adjudicating an appeal. Generally, introducing new arguments not previously discussed or the addition of further evidence is not permitted. It constitutes a review of the case and the grounds for the initial decision. A court of second instance may review decisions rendered by judges of first instance. The Superior and Supreme Courts of Justice, however, do not function as review bodies for decisions made at lower jurisdiction levels; they focus solely on the application of federal or constitutional law.

The Brazilian legal system does not allow the courts to impose any conditions on granting an appeal.

After hearing an appeal, the appellate court has the power to: (i) confirm the first instance decision; (ii) overturn the first instance decision, completely or partially; and (iii) set aside the first instance decision and order a new trial by the same instance.

Unless granted legal aid, parties are liable for paying the costs of the actions they take or request the court to undertake, in advance. The claimant bears the cost of actions initiated by the judge ex officio, including court fees.

However, for expert evaluations initiated ex officio by the judge, both parties share the cost of the court-appointed expert. A similar cost-sharing applies if both parties request technical evidence. When ruling on the case, the judge will order the losing party to repay the successful party’s costs paid in advance (all court fees, fees of court-appointed expert, and travel and accommodation expenses for witnesses). Typically, the legal fees agreed upon between client and attorney are not reimbursed.

Legal aid and exemption from court costs can be extended to individuals who can provide proof of financial hardship, and, exceptionally, to legal entities facing insolvency.

Court-awarded Attorneys’ Fees

A distinctive feature of Brazilian litigation is the awarding of attorneys’ fees by the judge to the victor. These court-awarded attorneys’ fees are different from and should not be confused with the legal fees agreed upon between a client and their attorney (contractual legal fees).

In addition to their contractual fees (which may be fixed, hourly, or contingency-based), the winning attorney is also entitled to an amount set by the court based on objective criteria. As a rule, court-awarded attorneys’ fees range from 10% to 20% of the award itself (eg, damages) or the economic benefit obtained by the winning party. This amount can be significant, depending on the values at stake, and should not be overlooked when assessing the risks of litigation in Brazil.

There are exceptions to the objective criteria, and the court may use its equitable discretion to set the amount of attorneys’ fees in cases where it is difficult or impossible to ascertain the actual amount obtained by the winning side, or when such amount is very low or negligible. This is typically the case in family law matters or cases involving personal status (personhood rights).

These court-awarded attorneys’ fees belong to the attorney, not to the party/client, and cannot be subject to offset or settlement between the parties without the express consent of the attorney.

The court considers whether the parties have prevailed fully, partially, or not at all in their claims for relief. If the claimant is granted all of the relief sought, the defendant will be ordered to reimburse the claimant for all costs and pay the court-awarded attorneys’ fees. If the claimant succeeds in part of their claims, reimbursement of costs will be partial. Additionally, court-awarded attorney fees will be apportioned between both sides based on the degree of success. In cases with multiple claimants or defendants, the costs and court-awarded attorneys’ fees will also be prorated.

The costs incurred by one party and subject to reimbursement by the other will be accrued with inflation adjustment from the date of disbursement until reimbursement. If reimbursement is not made within the appropriate time limit, default interest may also apply.

Brazilian civil procedure recognises the “multi-door” system, which allows parties to use a variety of methods to obtain access to justice. In addition to litigation and arbitration, conciliation and mediation are popular, as are dispute boards for construction-related disputes.

Brazilian law defines conciliation and mediation differently. Conciliation is understood as a method in which a conciliator suggests settlement options to the parties involved in a dispute over a single event or relationship. Mediation, on the other hand, deals with disputes involving parties with some kind of ongoing relationship and facilitates discussions without suggesting settlement options.

This distinction, established by the Civil Procedure Code, has been criticised as being out of step with international standards. In practice, conciliation has been widely used in courts, especially for small claims, while mediation has been used for more complex cases, with parties often resorting to out-of-court mediation.

See 12.1 Views of ADR Within the Country.

There are several prominent and experienced institutions offering and promoting ADR in Brazil. Here are some of the notable institutions providing ADR services in Brazil, primarily concentrated in the urban hubs of São Paulo, Rio de Janeiro, and Belo Horizonte:

  • Arbitration and Mediation Centre of Brazil-Canada Chamber of Commerce (CAM-CCBC);
  • Arbitration and Mediation AMCHAM of the American Chamber of Commerce;
  • Conciliation, Mediation and Arbitration Chamber of the Industry Federation of São Paulo (CIESP-FIESP);
  • Brazilian Centre for Mediation and Arbitration – CBMA;
  • FGV Mediation and Arbitration Centre;
  • Centre of Commercial Mediation and Arbitration – CAMARB; and
  • Stock Exchange Arbitration Centre - CAM B3;

The International Court of Arbitration of the International Chamber of Commerce (ICA-ICC) has established a branch in Sao Paulo, in view of the growing Brazilian commercial arbitration market.

The Brazilian Arbitration Act (Law No 9,307/96, as amended by Law No 13,129/15) is the sole basis for analysing arbitral agreements in international business contracts and international commercial arbitration proceedings seated in Brazil.

The Brazilian Arbitration Act is largely based on the UNCITRAL Model Law, while also being heavily influenced by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitration Awards (the New York Convention). Examples of the most relevant principles of Brazilian arbitration that can be traced back to Model Law provisions include:

  • the formal and substantive requirements of arbitration agreements;
  • the principle of kompetenz-kompetenz; and
  • the possibility of obtaining judicial injunctive relief, especially for interim and conservatory measures.

The enforcement of international commercial arbitration awards is governed by the Brazilian Arbitration Act, the Civil Procedure Code (Law No 13,105/15), and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), which Brazil ratified in 2002.

Arbitration in Brazil can be used to settle disputes involving “negotiable rights of a pecuniary nature” (ie, not involving family, taxes, or labour rights) between parties who have full legal capacity.

The law also requires that arbitral clauses in adhesion contracts (ie, contracts where one party is unable to negotiate the terms and conditions) be in boldface type and specifically signed (initialed) by the adhering party (Article 4, §2 of the Brazilian Arbitration Act).

There is considerable debate over the matter of arbitrating consumer disputes. Despite the provision of the Brazilian Arbitration Act on adhesion contracts, the Consumer Protection Act (in Article 51(VII)) deems mandatory arbitration clauses in consumer contracts null and void.

Article 32 of the Arbitration Act sets out the grounds on which an arbitration award may be annulled. These grounds are:

  • the arbitration agreement is null and void;
  • the arbitrators lack jurisdiction;
  • the award fails to provide the grounds for the decision or does not comply with certain formal requirements;
  • the award exceeds the scope of the arbitration agreement;
  • the award fails to decide the whole dispute;
  • the award was rendered through deceit, extortion or corruption;
  • the award was made after any time limit required by the submission to arbitration; or
  • the arbitrators are biased or there is a failure to guarantee certain minimum procedural guarantees.

An annulment lawsuit must be filed within 90 days after notification of the arbitration award.


Under Brazilian law, foreign arbitration awards are viewed as awards issued outside of Brazilian territory.

Enforcing Domestic Arbitral Award

Arbitral awards issued within Brazilian territory (regardless of the nationality of the arbitral institution) are enforceable in Brazil in the same manner as final judicial decisions. Their enforcement follows “fast-track collection proceedings”, aiming to secure the debtor’s assets to fulfil the award. During this, the judgment debtor has minimal scope to challenge the merits of the decision in these proceedings.

Enforcing Foreign Arbitral Awards

To be enforceable in Brazil, foreign awards must be recognised by the STJ, without requiring prior recognition by the country of origin.

An application for recognition should contain the original foreign arbitration award or a certified copy thereof, apostilled and translated into Portuguese by a sworn translator in Brazil, as well as the original arbitration agreement or a certified copy thereof, duly translated into Portuguese by a sworn translator.

The standards for the enforcement of a foreign arbitration award in Brazil are consistent with Article V of the New York Convention. According to the Brazilian Arbitration Act, the enforcement of a foreign arbitration award can only be denied if:

  • the parties to the arbitration agreement lack capacity;
  • the arbitration agreement is invalid under the applicable law or the law of the seat;
  • the respondent was not given proper notice of the appointment of the arbitrator or of the arbitration, or was otherwise unable to present its case and was unable to exercise its right of defence;
  • the award exceeds the limits of the arbitration agreement;
  • the commencement of the arbitration proceeding was not in accordance with the arbitration agreement;
  • the arbitration award is not binding on the parties, or has been annulled or suspended by a court of the seat of arbitration;
  • the object of the dispute is not arbitrable under Brazilian law; or
  • the award violates Brazilian public policy.

STJ’s internal rules authorise the court to issue preliminary injunctions during recognition proceedings, such as freezing assets while an application for recognition is pending, and granting partial recognition to foreign awards.

Once the foreign award is confirmed by the STJ, the judgment creditor is entitled to enforce the now “nationalised” award in the same way as a domestic award; ie, with a competent first instance judicial court. While review of the merits is prohibited at this stage, foreign awards may be challenged on very limited grounds by the judgment debtor.

Bill No 3.293/2021 proposes to modify several provisions of the Brazilian Arbitration Law. Among other highly debated topics, this proposal establishes a limit on the number of proceedings in which each arbitrator can act, regulates the duty of disclosure, and provides for the publicity of information related to the arbitral proceeding.

Law No 14.711/2023 has recently been enacted and provides, inter alia, for the extrajudicial enforcement of credits that are secured by mortgages. This means that creditors will be able to pursue their credits outside of the courts.

There is also another legislative proposal (Bill No 6204/2019) aiming to reduce the involvement of judicial courts in relation to enforcement proceedings.

TozziniFreire Advogados

Rua Borges Lagoa 1328
São Paulo
CEP 04038–904

+55 11 5086 5000
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Trends and Developments


Machado, Meyer, Sendacz e Opice is an innovative law firm that has built its reputation on sound ethical principles, technical skills, and a close relationship with its clients. Established over 50 years ago, the firm is today ranked as one of the major law firms in Brazil, with over 1,000 professionals. The litigation department at Machado Meyer has been consistently growing, year on year, and is now the third largest in the firm in terms of revenue. The litigation team currently has 13 partners and nearly 200 members, with diverse expertise in civil and commercial litigation, arbitration, crisis and emergency management, and bankruptcy law.

The Development of a Binding Precedents System in Brazil

Most recent reforms to the Brazilian Rules of Civil Procedure have been motivated by the clear need to address the vast caseload that has historically plagued Brazilian courts. This is evidenced by the annual report of the National Council of Justice (Conselho Nacional de Justiça or CNJ), which includes data on the number of cases pending judgment in federal and state courts throughout Brazil. The 2023 edition of the report, “Justice in Numbers”, found that there are 31.5 million pending cases, an increase of 0.5% or 1,763,177 cases compared to the 2022 report.

The binding precedents system, included in the Code of Civil Procedure (Código de Processo Civil or CPC) enacted in 2015, is part of a strategy to enhance the certainty and speed of judicial outcomes, particularly in cases of repetitive litigation. By consolidating case law into unified and stable precedents (“súmulas” and “temas”), it seeks to bolster litigants’ confidence in the outcome of potential claims – potentially discouraging meritless suits – and hasten case resolutions, especially with respect to repetitive litigation.

This article will explore the development, and prevailing debates surrounding, the Brazilian precedents system, focusing on the binding decisions issued by the Supreme Court and the Superior Court of Justice (STJ). The aim of the article to discern if the objectives set out in 2015 are coming to fruition.

Historical background

Brazil has traditionally been – and remains – a civil law country, where court rulings serve a guiding role in legal interpretation, holding sway over judges and courts tasked with applying similar legal frameworks to analogous cases. However, the pressing need to provide solutions for mass litigation – reducing the risk of conflicting decisions on the same legal matter and increasing efficiency in the judgment of such cases – pushed Brazilian procedural law towards a system of binding precedents, grounded on the constitutional rights for equal treatment and reasonable duration of the lawsuit. 

Constitutional Amendment No 45/2004 outlined several changes to the structure and system of the Brazilian judiciary and was the first legal change to assign binding effect to precedent summaries (súmulas) of Supreme Court cases regarding constitutional matters, approved by a qualified majority (two third of the justices). Another important change introduced by this amendment was the requirement for parties to demonstrate the repercussão geral (literally the “general repercussion”) of the matter discussed in their extraordinary appeals (recurso extraordinário) directed to the Supreme Court. This requirement was initially introduced as a prerequisite for the appeal to be admissible and heard. Later, with the enactment of Law No 11,418 in 2006, the outcome of cases decided with repercussão geral – which only requires a simple majority of the justices – became binding on the appellate courts. This allows appellate courts to stay appeals on the same legal issue until the Supreme Court has issued a ruling with repercussão geral, and ties the admissibility of future appeals to that precedent (Section 543-B of the CPC).

Since Constitutional Amendment No 45/2004, the Federal Supreme Court has issued 736 binding precedents (súmulas and temas de repercussão geral – precedent summaries and “matters of general repercussion”), addressing labour, tax, and civil matters. In this scenario, some Brazilian scholars, including justices of the Supreme Court, argue that temas de repercussão geral have now superseded the súmulas in number and relevance because it is easier and faster for the Supreme Court to reach binding precedents in constitutional matters via this path.

Similarly, the enactment of Law No 11,672 in 2008 allowed the STJ to select a representative appeal that encompasses the legal issues discussed in a significant number of pending special appeals to the STJ (repetitive appeals). The decision in this leading case is then applied to this set of cases, either summarily dismissing them or serving as the basis for a review by the state or federal court of the matters decided in the repetitive appeal. However, both the repetitive appeals and “matters of general repercussion” (temas de repercussão geral) did not prevent parties from filing appeals on the same legal issue to the STJ and the Supreme Court. Instead, they equipped the courts with mechanisms to expedite their decision-making processes.

The crucial step in implementing Brazil’s binding precedent system was the 2015 reform of the CPC, which expressly requires courts to standardise and maintain the cohesion of their case law (Section 926) and to select which decisions will be binding on judges and courts at all levels of appeal when deciding the same legal matter.

This brief historical overview reveals a growing concern – shared by the courts, legislators, and legal scholars – with developing and implementing a system of precedents that provides clear guidelines to judges and justices on how to make binding decisions, as well as legal certainty to the parties regarding how the courts will rule on a given subject, thereby reducing uncertainties and costs.

Potential Binding Precedents: the Legal Framework of the CPC

As expected in a civil law country, the law – as the primary source of rights – ascribes binding effects to specific decisions, providing for special procedural rules that courts must observe when issuing a precedent.

Section 927 of the CPC outlines which decisions become binding precedents, which must be observed by courts and judges once finalised:

  • decisions of the Supreme Court in concentrated constitutional review;
  • Supreme Court binding summaries (súmulas) ;
  • decisions in incidental proceedings of assumption of jurisdiction (Section 947 of the CPC) or in incidental proceedings to resolve repetitive claims (Section 976 of the CPC);
  • summaries and matters extracted from the judgment of multiple appeals by the Supreme Court and the STJ; and
  • the guidelines of the full bench or of the special body of courts – which are binding on the courts and judges subject to the jurisdiction of these collective bodies of justices or appellate judges.

The legislature has adopted a framework to select decisions with binding effects. Brazilian precedents are all decisions rendered by collective bodies of justices, either from the Supreme Court or the STJ, or appellate judges from federal and state appellate courts. The procedural rules to reach most of the binding decisions listed above provide for a mechanism to suspend all pending cases discussing the same legal issue in the courts subject to the jurisdiction of the collective body judging the precedential case. Therefore, if a prospective precedent is pending judgment by the Supreme Court or the STJ, a vast number of cases may be suspended all over the country. These features make it clear that the Brazilian precedents system is grounded in a “top-down” approach, in which decisions from higher courts are binding on the lower courts and judges, and focused on legal topics that may resolve clusters of repetitive litigation in one go, preventing the filing of new lawsuits on the same matter.

How Binding Precedents are Applied to Identical Cases: the Importance of the Ratio Decidendi and the Role of the Reporting Justice/Judge

Brazilian Appellate Courts – including the Supreme Court and the STJ – were already concerned with ensuring consistency and coherence in their case law since the enactment of Constitutional Amendment No 45 in 2004 and with the emergence of repetitive appeals in the STJ (enacted by Law No 11,672 in 2008). 

With the reform of the CPC in 2015, the various decisions already outlined in the previous section became binding. Consequently, a case dealing with the same legal topic can be halted at its inception. In this situation, a lower court judge might dismiss a claim that contradicts these precedents before even serving the defendant in the lawsuit (Section 332(I, II, III, and IV)).

In the same vein, such precedents are employed to stop appeals from reaching all the way to the Supreme Court or STJ, especially in cases pending judgment at the time the precedents are issued. In this scenario, the reporting judge in the state or federal appellate court can dismiss or grant the appeal on the merits, depending on whether it is consistent or inconsistent with the binding precedent (Section 932(IV)(a, b, and c), and Section 932(V)(a, b, and c)). In all of these cases, Section 489 of the CPC provides that judges are obliged to clearly identify and substantiate the reasons for applying or not applying a precedent in any given case, to ensure the validity of the decision and the parties’ ability to object.

This trend towards binding precedents has led Brazilian courts to adopt concepts and practices traditionally linked to the common law system. Central to this is the emphasis on clearly interpreting the “ratio decidendi” of a set precedent. This means understanding the underlying reasons and principles for how a specific law is applied to a particular situation and pinpointing the critical elements to consider when applying the same logic to future cases.

The way precedents are applied in Brazil markedly differs from common law mechanisms, as legislation remains the principal source of rights. The laws themselves grant binding effect to certain court decisions. These precedents are an abstract summary of the interpretation of the legal context surrounding a specific factual scenario, intended for application in subsequent cases (or cases suspended pending the resolution of the leading case). Instead of directly contrasting the precedent with a future case, the comparison is drawn between subsequent cases and this abstract summary of the court’s interpretation, fostering a more efficient process. Consequently, the holding of a binding decision remains the core of a precedent, as it corresponds directly to the abstract summary applied to other cases.

Therefore, the ratio decidendi is essential for the parties to fully exercise their right to defend themselves and protect the constitutional right to due process when challenging the application of a precedent. To do this, the parties must identify the facts that support the precedent and explain how their cases are different.

Although Brazilian precedents are more abstract than common law precedents, it is imperative for courts to articulate a thorough and transparent ratio decidendi. This clarity ensures the precedent’s binding force and applicability to cases with the same characteristics. Without such clarity, there is a risk of spawning new litigations due to efforts to distinguish cases from the established precedent.

The Increase in Binding Precedents in the Supreme Court and the STJ

Since 2015, the Supreme Court and the STJ have actively embraced and expanded the binding precedents system, utilising it as a potent tool for managing the vast caseload of the Brazilian courts, including their own. According to the CNJ’s empirical research, by employing the general repercussion (Supreme Court) and repetitive appeals (STJ) rules, these courts have resolved nearly three million pending lawsuits.

In a recent report released by the STJ, it was stated that since the creation of the binding precedents system in 2015, through to July 2023, more than 1,204 binding matters (temas) were issued by the court, of which 901 were already adjudicated. This report also informs that through the creation and co-ordination of work committees, the STJ was able to better direct its efforts to select the topics to be classified and adjudicated as repetitive appeals. The proof of this approach’s success is the fact that, in the last four years, at least 50% of the decisions on repetitive appeals that became binding precedents were selected by COGEPAC – the Precedents and Collective Actions Management Committee, which was established to manage and amalgamate cross-sectional topics stemming from repetitive appeals and collective actions. 

Furthermore, the Supreme Court and the STJ have invested in technology and artificial intelligence to improve and support the binding precedents system. The STJ has been using an AI system called Athos since 2019 to help identify similar cases that should be analysed and adjudicated by the court through the rules of repetitive appeal. Athos also aids in isolating cases where parties challenge the applicability of a precedent. 

In parallel, the Supreme Court has been using a system called Victor since 2017 to help streamline appeals related to general repercussion. This system was updated to “VictorIA” in May 2023, enhancing its capabilities to match those of Athos, while also refining data collection and processing, aiming to consolidate the profile of the cases submitted, admitted, and adjudicated by the Supreme Court. 

The legal background attributing binding effects to the Supreme Court’s and the STJ’s precedents, and the growing use of artificial intelligence and automation to identify repetitive legal matters, or issues that have the potential to generate a large number of new lawsuits, are powerful tools to address the Brazilian courts’ chronic caseload problem. An interesting metric reported by the CNJ’s “Justice in Numbers” report is that the number of closed cases increased by 13.5% compared to 2022. The decisive application of binding precedents has undoubtedly played a pivotal role in this encouraging development.

Recent Debates on the Binding Precedents System in Brazil

Given Brazil’s vastness, boasting over 15,000 judicial courts in a predominantly civil law setting, it is only natural that the introduction of a precedents system would stir debate. The challenge lies in balancing the implementation of this system with safeguarding constitutional rights like due process and ensuring equal access to justice. Some of the most heated debates concern the timing of applying binding decisions to pending cases and the adequacy of representation for absent parties who may be affected by the precedent.

Regarding modulation of the effects of precedents, the main issue is to determine whether the binding decision is applicable to pending lawsuits filed before the establishment of the precedent. To illustrate this concern from a practical point of view, if there is no clear directive in the binding decision regarding the application of the precedent, the lower and appellate courts determine its application on a case-by-case (or group of cases) basis. Such inconsistencies might lead to further litigation over the modulation of precedential effects, undermining the system’s objectives.

Although the CPC expressly provides for the possibility to modulate the effects of a binding decision (Section 927(3)), the STJ has adopted the guideline that only the court issuing the precedent may modulate its effects on similar cases. This decision should be explicitly stated in the holding of the precedent itself. If there is no mention of modulation, the precedent must be applied equally to all pending cases by lower and appellate courts.

A parallel approach was adopted in another debate stemming from the application of binding rulings by the lower and appellate courts, namely: should the precedent be applied solely after the final, unappealable decision of its originating case?

To preserve the goal of speedy resolution, the Supreme Court and the STJ have held that even if a party in the case from which the precedent was extracted continues to litigate it, for example by filing a motion for clarification or other appeals, this does not prevent the immediate application of the precedent to similar cases, as it is not the case itself that is being applied, but an abstract summary of the legal background applied to a given factual situation.

One of the challenges in modulating the effects of precedents is ensuring adequate representation of all parties that may be affected by the binding decision, especially those with pending cases that may be stayed for long periods of time before the precedent is established. To balance the need to manage the caseload and preserve due process, the CPC allows the participation of third parties, such as civil associations and other stakeholders, to ensure the collective and individual interests in dispute are robustly defended (Section 927(2)). Nonetheless, some academics contend that these provisions for third-party participation are not sufficient to guarantee the adequate representation of the interests of absent parties, and the low number of public hearings related to the judgment of potential precedents is evidence of this gap.

This tension underscores the importance the Supreme Court and the STJ place on binding decisions as tools to expedite the adjudication of repetitive cases and ensure consistent legal interpretation nationwide. In pursuit of these aims, they are willing to overlook requests for direct participation of absent parties and broaden the scope of procedural milestones such as the final and unappealable judgment.


The precedent system in Brazil is relatively nascent, yet its positive impact is already being acknowledged by the courts, as highlighted by the CNJ. The number of cases adjudicated through the application of binding decisions is being closely monitored in order to assess their efficacy in achieving a key objective of the CPC reform – more efficient handling of repetitive cases and mass litigation. While the number of cases resolved using precedents is small compared to the number of pending lawsuits, there has been a noticeable drop in the filing of new lawsuits in 2023. This may be one of the benefits of having a more organised, cohesive, and consistent set of precedents.

While the Brazilian system of precedents might not have fully realised its potential, it is already having a positive impact. It provides reassurance that analogous cases will have the same outcomes. This enables the relevant parties to take a more strategic approach to litigation as they can rely on clearer and more foreseeable court interpretations of the law.

Machado Meyer Sendacz e Opice Advogados

Ed. Seculum II - Rua José Gonçalves de Oliveira
nº 116
5º andar Itaim Bibi
São Paulo

+55 11 3150 7198
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Law and Practice


TozziniFreire Advogados is a leading law firm in Latin America, operating in all areas of business law and with an impressive track record in serving local and foreign companies from the most diverse industries. With branch offices in several cities in Brazil (São Paulo, Rio de Janeiro, Brasília, Porto Alegre, and Campinas), as well as in New York, TozziniFreire is committed to delivering consistent, high-quality service to its clients nationwide. The firm has played a key role in many of the most significant transactions in the Brazilian market, contributing to the growth of the country’s economy in recent decades. The significance of the firm’s work is frequently acknowledged by esteemed national and international publications, based on independent research interviews with professionals from some of the world’s largest companies.

Trends and Developments


Machado, Meyer, Sendacz e Opice is an innovative law firm that has built its reputation on sound ethical principles, technical skills, and a close relationship with its clients. Established over 50 years ago, the firm is today ranked as one of the major law firms in Brazil, with over 1,000 professionals. The litigation department at Machado Meyer has been consistently growing, year on year, and is now the third largest in the firm in terms of revenue. The litigation team currently has 13 partners and nearly 200 members, with diverse expertise in civil and commercial litigation, arbitration, crisis and emergency management, and bankruptcy law.

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