BRAZIL Law and Practice Contributed by: Eduardo Perazza, Glaucia Coelho, Débora Chaves Martines Fernandes and Agnes Domingues, Machado Meyer
2.5 Confidentiality Court proceedings are public under the Federal Con- stitution. However, confidentiality may be decreed in cases involving: • family law matters (divorce, custody, alimony); • matters involving minors; • trade secrets and commercially sensitive informa- tion; and • public interest or social interest requiring protection of privacy. 2.6 Interim Relief Brazilian law provides two main types of interim relief, allowing parties to obtain court orders before the final judgment when waiting would cause irreparable harm. Urgency Relief This is the most common type of interim relief. The applicant must show a likelihood of success on the merits and a risk that waiting for the final judgment would cause serious harm. Courts may order meas- ures such as freezing the opponent’s assets, requiring a party to stop certain activities, preserving evidence that might otherwise be lost, or temporarily granting the relief sought in the lawsuit. Evidence-Based Relief This type of relief does not require showing urgency. Instead, it is available when the claim is so clearly supported by documents or binding precedent that there is little room for dispute. For example, if a party has a signed contract proving the debt and the debtor has no plausible defence, the court may grant relief immediately without waiting for the full trial. Interim relief is commonly sought in breach of contract cases, shareholder disputes, competition matters, intellectual property conflicts and consumer cases involving health matters (such as the supply of medi- cations). Courts may also grant orders without prior notice to the other party when advance warning would allow the opponent to frustrate the relief – for instance, by hiding assets or destroying evidence. 2.7 Final Relief Brazilian courts may grant different types of remedies depending on what the claimant seeks to achieve.
Declaratory Relief Courts may issue judgments that clarify the legal situ- ation between parties (eg, declaring whether a con- tract is valid, whether a party has a certain right, or whether an obligation exists). These judgments do not order any action but provide legal certainty. Monetary Judgments The most common remedy in commercial disputes. Courts order the losing party to pay damages, debts or other monetary amounts. Specific Performance Courts may order a party to do (or stop doing) some- thing specific, rather than simply paying damages. To encourage compliance, courts commonly impose daily penalty fines that accumulate until the order is obeyed. 2.8 Damages Brazilian law follows the principle of full compensa- tion, meaning that the injured party should be restored to the position they would have been in had the harm not occurred. Types of Damages Courts may award compensation for actual losses (money already spent or assets lost) and lost profits (gains that the party would have earned but for the breach). In addition, courts may award moral dam- ages for non-financial harm such as reputational dam- age, distress or humiliation. No Punitive Damages Brazil does not recognise punitive damages as a sep- arate category. However, contractual penalty clauses are permitted and courts may reduce penalties that are deemed excessive. Proving Damages The claimant bears the burden of proving both the existence and the amount of damages suffered. In complex cases, courts commonly appoint neutral expert accountants to assess the value. For moral damages, the amount is determined at the judge’s discretion, guided by proportionality principles.
61 CHAMBERS.COM
Powered by FlippingBook