BRAZIL Law and Practice Contributed by: Eduardo Perazza, Glaucia Coelho, Débora Chaves Martines Fernandes and Agnes Domingues, Machado Meyer
cific and justified; broad or unsupported claims are generally not upheld. 8.3 Confidentiality Brazilian law allows parties to withhold evidence on confidentiality grounds in limited circumstances. A party may be excused from producing a document if disclosure would cause serious harm to the party or close relatives, or if it contains trade secrets or pro- fessional confidential information. When confidential- ity is claimed, courts balance the need for disclosure against the harm it may cause. Rather than allowing complete withholding, courts often order restricted access: the document is disclosed to the court and opposing counsel under a confidentiality undertaking, but not made public. Confidentiality protection may be overridden when the document is essential to the case and cannot be replaced by other evidence, when the party claiming confidentiality relies on the same document for its own case, or when the court determines that the interests of justice outweigh confidentiality concerns. 8.4 Witness Evidence In court proceedings, witnesses testify orally at a hear- ing before the judge, which occurs after the parties have submitted their initial pleadings and the judge has determined that oral evidence is necessary. Brazil does not have a pre-trial deposition procedure comparable to the US model. There is no discovery phase allowing parties to depose witnesses before trial. Written witness statements are not standard practice in Brazilian litigation. Parties identify the witnesses they intend to call, but statements or affidavits submit- ted in advance carry little evidentiary weight. As a rule, the judge assesses credibility based on live testimony, particularly because the judge may directly question witnesses and exercise control over the relevance and scope of cross-examination. Examination Procedure At the hearing, witnesses are examined by the lawyers for all parties and by the judge. The sequence typically begins with questions from the party that called the
witness, followed by questions from opposing coun- sel. The judge may intervene at any time to ask clarify- ing questions or to control the scope of examination. 8.5 Expert Evidence Expert evidence is widely used in Brazilian proceed- ings, when disputed facts require specialised tech- nical or scientific knowledge that falls outside the judge’s expertise. The judge appoints a neutral expert from an approved registry. The court-appointed expert must act with independence and impartiality. Each party may then appoint a technical assistant to review the expert’s methodology, challenge findings and submit a sepa- rate opinion. While the court expert’s report carries significant weight, the judge is not bound by its con- clusions and may rely on other evidence. Foreign judgments are not directly enforceable in Brazil. They must first be recognised by the STJ. Its review is formal and procedural only – the merits of the case are not reconsidered. Once recognised, enforce- ment follows the standard judgment enforcement pro- cedure before first instance courts. Requirements for Recognition The STJ will homologate a foreign judgment provided it meets the following conditions: • it is a final judgment from a competent foreign court; • the parties were duly cited (or the judgment was rendered by default under conditions accepted by Brazilian law); • the judgment has been authenticated by the Brazil- ian Consulate and officially translated into Portu- guese; and • it does not violate Brazilian national sovereignty, public order, or good morals (public order). 9. Enforcement 9.1 Enforcement of Judgments
69 CHAMBERS.COM
Powered by FlippingBook