BRAZIL Law and Practice Contributed by: Eduardo Perazza, Glaucia Coelho, Débora Chaves Martines Fernandes and Agnes Domingues, Machado Meyer
5.6 Assessment of Costs Cost allocation depends primarily on the outcome of the case and on who is the prevailing party. The losing party pays costs and attorneys’ fees to the winning party. The percentage of success or failure in the case is also taken into consideration. If a party wins some claims but loses others, costs may be apportioned accord- ing to the degree of success achieved by each party. If both parties prevail and lose on different aspects of the dispute, costs are typically divided between them proportionally, reflecting the extent to which each party succeeded in the litigation. The types of interim relief available from the courts for ADR proceedings are the same as those applicable to litigation cases, as described in 2.6 Interim Relief . 6.2 Interim Relief to Support Arbitration and ADR Brazilian courts routinely grant interim relief in support of arbitration and other forms of ADR. Before an arbi- tral tribunal is constituted, parties may seek interim measures directly from state courts to preserve rights or prevent irreparable harm. Once the arbitral tribunal is constituted, it assumes primary jurisdiction over interim relief. Courts then continue to play a supportive role, assisting mainly with the enforcement of tribunal-ordered measures when coercive powers are required. 6. Interim Remedies 6.1 Availability of Interim Relief In the context of mediation and other ADR mecha- nisms, courts may also grant interim relief to safeguard the parties’ rights while negotiations are ongoing. 6.3 Timing of Applications for Interim Relief Interim relief may be sought at various stages. • Before filing suit – relief may be sought as a stan- dalone measure. If granted, the applicant must file
the main action or the measure lapses automati- cally. • At proceedings’ outset – most applications are filed with or shortly after the initial petition. Courts typi- cally rule on urgent requests within 48–72 hours. 6.4 Security for Costs Brazilian law does not have a general security for costs requirement. However, any plaintiff who resides outside Brazil must provide security for the defend- ant’s costs and fees, unless they own real estate in Brazil sufficient to cover such costs. This requirement is waived when there is an applicable international treaty, in enforcement proceedings or in counterclaims. Additionally, courts may require security or order asset freezes in other situations. If there is evidence of asset dissipation risk, the defendant may request protective measures to ensure future costs recovery. Courts may also require the plaintiff to post security as a condition for granting interim relief, particularly injunctions that may cause significant harm to the defendant if later reversed. 6.5 Interim Injunctions Interim injunctions are available for parties in Brazil. They are court orders requiring a party to do some- thing (mandatory injunctions) or to refrain from doing something (prohibitory injunctions). The applicant must demonstrate a likelihood of success on the mer- its and a risk of serious or irreversible harm if the order is not granted. Common cases where interim injunctions are sought include: stopping the infringement of intellectual property rights, stopping defamatory publications or unfair competition practices, preventing the transfer or disposal of disputed assets and requiring a party to continue supplying goods or services under an exist- ing contract. 6.6 Summary Judgment Courts may render early judgment on the merits when: (i) the dispute involves only legal questions with no disputed facts; or (ii) all evidence is documentary and no further proof is needed. Early judgment is regularly
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