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Legal Guides / Dispute Resolution

Litigating in Brazil

The rules are different. So is the strategy.

Litigating in Brazil is very different from litigating in common law jurisdictions. This guide explains how Brazilian civil litigation works for foreign companies and international clients: court structure, evidence, document production, legal costs and enforcement.

Quick Read

Civil law, not common law: Courts apply codified rules. Precedent matters less than in common law systems, though STF binding decisions and STJ qualified precedents carry significant weight.

Documentary evidence dominates: Oral evidence carries less weight. Judges conduct examinations of witnesses themselves; there is no cross-examination in the common law sense.

No discovery: Pre-trial disclosure does not exist. Requests for production must be highly specific; documents from third parties require a separate court action.

Legal costs go to the lawyers: The losing party pays the winning party’s lawyers a fee (sucumbencia) of 10-20% of the award. This belongs to the lawyers, not the winning party.

Litigation is slow: First instance decisions routinely take three to five years; including appeals, a dispute can take a decade or more.

Arbitration is well established: Brazil has a mature framework under Law 9,307/1996. Arbitral awards are directly enforceable without court confirmation.

Brazilian litigation operates by different rules. Knowing them before the dispute is not optional

Brazilian civil procedure is governed by the Code of Civil Procedure (CPC), in force since March 2016, which modernised the law and introduced a system of binding precedents at the appellate level. The fundamental features, its emphasis on documentary evidence, the limited role of oral testimony and the absence of discovery, remain firmly in place. Brazil has a dual court structure: federal courts and state courts, plus a fully separate labour court system, with the STJ and STF at the apex.

For common law practitioners, including Australian, British, American and New Zealand clients, the differences are material. This guide sets out the features most likely to surprise, followed by the court structure, procedural framework, enforcement rules and arbitration as an alternative, based on the article “Litigation in Brazil: Unusual Features” on LawsofBrazil.com.

Limitation periods

Brazilian limitation periods vary by cause of action. The general Civil Code rule is 3 years for personal claims and 10 years otherwise; labour claims carry a 2-year post-termination limit with a 5-year lookback. Limitation analysis should be the first step in any assessment of a potential Brazilian claim.

The Brazilian court structure

Understanding which court hears what, and where appeals go, is the foundation of any Brazilian litigation strategy.

Constitutional Apex

Federal Supreme Court (STF)

Hears constitutional challenges and extraordinary appeals. Its sumulas vinculantes bind all courts and public administration.

Federal Law Apex

Superior Court of Justice (STJ)

Apex court for federal law questions, hearing special appeals and the recognition of foreign judgments before enforcement in Brazil.

Specialised System

Labour Courts (Justica do Trabalho)

An entirely separate system with its own trial, regional and superior courts, generating the highest case volume in Brazil.

Federal Jurisdiction

Federal Courts (Justica Federal)

Hear cases involving the Federal Government, federal agencies, bankruptcy and federal tax disputes.

General Civil and Commercial

State Courts (Justica Estadual)

Handle the majority of civil and commercial disputes; each state has its own Tribunal de Justica.

Small Claims

Special Civil Courts (Juizados Especiais)

Simplified, faster procedure for lower-value claims; legal representation is not mandatory below 20 minimum wages.

Unusual Features

Five features of Brazilian litigation that surprise common law practitioners

Evidence

Parties and some deponents are not bound to tell the truth

A deponent with an impediment or suspicion affecting their relationship to the parties is heard only as a party or informant, not a sworn witness. What they state is treated as information, not evidence, and given substantially less weight.

Hearings

No cross-examination, short hearings and judge’s minutes of oral evidence

The judge conducts witness examination, not the parties’ lawyers, and may rephrase questions before putting them. Hearings run 15-30 minutes; the judge dictates a summary that becomes the official record, not a verbatim transcript.

Evidence

Discovery and disclosure are extremely limited

There is no pre-trial discovery. Requests must identify each document specifically; obtaining documents from non-parties requires a separate court action that can take years. Brazil acceded to the Hague Evidence Convention in 2022, easing targeted requests.

Costs

Legal costs go to the lawyers, and settlement offers do not affect costs

The sucumbencia award (10-20% of the sum) is paid to the winning lawyers, not the client, and does not offset the client’s own legal fees. There is no Calderbank-style mechanism: rejecting a settlement offer carries no adverse costs consequence.

Enforcement

Direct enforcement of negotiable instruments and witnessed contracts

Extra-judicial enforceable instruments (titulos executivos extrajudiciais), including contracts signed by two witnesses, can be enforced directly. The debtor must provide security within three business days of service.

Procedural Framework

How Brazilian civil proceedings work in practice

CPC 2015

Commencing proceedings and service of process

Filed via petição inicial stating facts, legal basis, evidence and relief sought. Service abroad runs through the Hague Service Convention (acceded 2019) or letters rogatory.

Timing

Timelines and delays

A first instance commercial judgment typically takes two to four years; complex matters five years or more; appeals add three to seven years.

CPC Arts. 294-311

Injunctive relief (tutela de urgencia)

Precautionary and anticipated relief require plausibility of the right and risk of serious harm. Penhora online allows electronic freezing of bank accounts within minutes.

Evidence

Expert evidence (prova pericial)

Courts typically appoint their own expert rather than relying on party-appointed experts, whose report carries presumptive weight; each party may appoint a technical assistant to challenge it.

Costs

Court fees and costs (custas and sucumbencia)

Custas processuais are court fees for each procedural step, borne ultimately by the loser; honorarios de sucumbencia go to the winning lawyers at 10-20%.

CPC 2015, Binding Precedents

Precedent and the binding decision system

STF sumulas vinculantes, STJ recursos repetitivos and the IRDR procedure now create binding precedent, substantially determining outcomes in tax, consumer and insurance matters.

Enforcement

Enforcing judgments in Brazil, and Brazilian judgments abroad

Brazil has a specific process for recognising foreign judgments for enforcement in Brazil, and for confirming Brazilian judgments can be enforced abroad. Neither is automatic.

Recognising foreign judgments (homologacao)

A foreign judgment cannot be directly enforced; it must first pass STJ homologacao, which reviews only procedural validity and public policy, not the merits.

Enforcing Brazilian judgments abroad

Subject to the rules of the enforcing country; common law courts have generally been willing to enforce Brazilian money judgments meeting their own standards.

Penhora online and asset attachment

SISBAJUD allows courts to electronically block funds across all Brazilian financial institutions within minutes of the order.

Hague Service Convention

Acceded in 2019; service on defendants in Convention countries now runs through the central authority mechanism rather than letters rogatory.

Hague Evidence Convention

Acceded in 2022, providing a mechanism for obtaining evidence located in Brazil for foreign proceedings, and vice versa.

Choice of forum clauses

Generally enforceable in commercial contracts between sophisticated parties under CPC 2015, but recent developments require checking current STJ case law before execution.

No direct enforcement of foreign arbitral awards. Foreign arbitral awards must also be homologated by the STJ, but this is governed by the Brazilian Arbitration Act and the New York Convention, and is generally faster and more predictable than homologating foreign court judgments.

Arbitration

Arbitration in Brazil: a mature and widely used alternative

Brazil’s Arbitration Act (Law 9,307/1996) has been in force since 1996; domestic awards do not require court confirmation and are final and directly enforceable. Brazil is a New York Convention signatory. The main institutions are CAM-CCBC, CAMARB and the FGV Arbitration Chamber, alongside ICC and ICDR for cross-border disputes.

+Speed: Arbitration typically resolves in 12-24 months, compared to 4-8 years or more in court.

+Confidentiality: Arbitral proceedings and awards are private; Brazilian court proceedings are generally public.

+Technical expertise: Tribunals can be constituted with specialists, valuable in complex commercial, construction and IP disputes.

+Finality: Domestic awards are final; only narrow procedural challenges (acao de nulidade) are available and rarely succeed.

+Cross-border enforceability: An award issued in Brazil is enforceable in over 170 New York Convention countries.

!Cost: Institutional and arbitrator fees can be substantially higher than court proceedings at higher claim values.

!Interim relief still requires courts: Enforcing tribunal-ordered interim measures against a non-compliant party requires court assistance.

!Not available for all disputes: Only disposable patrimonial rights can be arbitrated; consumer, most employment and public order matters cannot.

Common Mistakes

Six mistakes in Brazilian litigation strategy

Applying common law litigation assumptions

Parties routinely underestimate documentary evidence, overestimate witness testimony, expect non-existent discovery and misread settlement economics.

Failing to build a documentary record before the dispute arises

With no discovery, contracts, correspondence and performance records must be preserved throughout the relationship, not assembled after the fact.

Not including two witnesses on commercial contracts

A two-witness contract is directly enforceable; omitting witnesses forces slower ordinary civil proceedings before enforcement can begin.

Expecting settlement offers to affect costs

No Calderbank-style mechanism exists; a refused generous offer carries no procedural advantage if litigation continues.

Underestimating how long proceedings will take

A dispute resolved in 18 months elsewhere can take 5-10 years through the Brazilian courts including appeals.

Choosing litigation over arbitration for complex commercial disputes

Unless the dispute is non-arbitrable, arbitration’s speed, expertise and finality usually make it the default choice for significant Brazilian counterparties.

Further Issues

Class actions, consumer disputes and public interest litigation

Collective Actions

Class actions (acao civil publica)

Allows the Public Prosecutor’s Office, public defenders and associations to bring proceedings on diffuse or collective interests, commonly consumer, environmental and antitrust.

Consumer Law

Consumer disputes and the CDC

The Consumer Protection Code imposes strict liability and reverses the burden of proof, with claims frequently filed in the fast Juizados Especiais.

Tax Disputes

Tax litigation: administrative and judicial phases

Federal assessments first go through CARF’s free administrative appeal; adverse decisions or taxpayer preference move the dispute to court.

Anti-corruption

Anti-corruption proceedings and leniency agreements

Law 12,846/2013 imposes strict liability with fines up to 20% of gross annual revenue; leniency agreements are negotiated with the CGU.

Get advice

Facing a dispute in Brazil?

Whether assessing whether to litigate, structuring a contract for enforceability or managing a cross-border dispute, early advice is the most effective investment.

Litigation readiness checklist

✓Limitation period identified and confirmed as alive

✓Documentary record reviewed and gaps identified

✓Contract witnesses present (if applicable)

✓Arbitration clause assessed for scope and validity

✓Choice of forum clause reviewed against current STJ case law

✓Foreign judgment or award: homologation pathway assessed

✓Interim relief options considered (including penhora online)

✓Realistic timeline and cost modelled against commercial objectives

This page is a summary only and does not constitute legal advice. Brazilian civil procedure and dispute resolution rules change frequently. For further background, visit LawsofBrazil.com’s dispute resolution section.

Brazilian lawyers for foreign companies, investors and law firms.

Sao Paulo

Rua Quintana, 887/32
Sao Paulo SP 04569-011, Brazil
+55 11 5505 2485
info@deffenti.com

Brisbane

Level 34, 1 Eagle Street
Brisbane QLD 4000, Australia
+61 7 3040 9301
info@deffenti.com

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