BRAZIL Law and Practice Contributed by: Thiago Junqueira and Daniel Barreto Gelbecke, Junqueira & Gelbecke Advogados
courts or foreign law is generally ineffective for insur- ance contracts governed by Brazilian law. Arbitration and other alternative dispute resolution mechanisms are permitted. For insurance contracts governed by Brazilian law, arbitration must generally be seated in Brazil and conducted under Brazilian law. However, where the insurance has been validly contracted abroad under the exceptions provided by Complementary Law No 126/2007, disputes may be submitted to foreign arbitration and governed by for- eign law. In consumer insurance, arbitration clauses are subject to stricter scrutiny and may not be bind- ing, depending on the circumstances. In reinsurance and certain commercial insurance contracts, broader contractual autonomy applies. 9.3 Litigation Process In Brazil, insurance disputes are typically resolved through ordinary civil litigation before the state courts. Proceedings are initiated by filing a statement of claim, followed by service of process on the defendant and the submission of a defence. The case then moves to an evidentiary phase, which may include docu- mentary evidence, expert reports (very common in insurance disputes) and witness testimony, although judges have broad discretion to limit evidence. After closing arguments, the court renders a first-instance judgment. Decisions may be appealed to the state Courts of Appeal, usually reviewed by a panel of three judges. Further appeals to the Superior Court of Justice (STJ) or the Federal Supreme Court (STF) are limited to mat- ters of federal law or constitutional issues, and do not involve re-examination of facts or evidence. Provisional and interim relief (injunctions) is widely available at all stages of the proceedings. While litiga- tion can be time-consuming, procedural reforms and increasing judicial specialisation have contributed to greater predictability, particularly in insurance and reinsurance matters. 9.4 Enforcement of Judgments Domestic judgments are enforced through judicial enforcement proceedings before Brazilian courts.
Foreign judgments are enforceable in Brazil, but only after recognition ( homologação ) by the STJ. Brazil does not require reciprocity treaties for recognition. The STJ does not re-examine the merits; it verifies formal requirements, including proper service of pro- cess, finality of the decision, jurisdiction of the foreign court, and compatibility with Brazilian public policy, sovereignty and due process. Once recognised by the STJ, the foreign judgment may be enforced before the competent lower court in Brazil, in the same manner as a domestic judgment. 9.5 Enforcement of Arbitration Clauses Arbitration clauses in commercial insurance and rein- surance contracts are generally enforceable in Brazil. In reinsurance and large-risk insurance, arbitration is widely accepted and benefits from broad contractual autonomy. 9.6 Enforcement of Awards Domestic arbitration awards are directly enforceable in Brazil as judicial enforcement titles. Brazil is a signatory to the New York Convention. Foreign arbitral awards are enforceable once recog- nised by the STJ, whose review is limited to formal requirements and public policy, without re-examining the merits. After recognition, enforcement takes place before local courts in the same manner as a domestic court judgment. 9.7 Alternative Dispute Resolution Alternative dispute resolution plays a supplementary and still limited role in the resolution of insurance dis- putes in Brazil, although its use is gradually expand- ing. Mediation is expressly regulated by Law No 13,140/2015 and is legally available for insurance dis- putes involving disposable rights or rights that admit settlement. In practice, however, mediation remains underutilised in insurance litigation, with disputes still predominantly resolved through ordinary court pro- ceedings. That said, mediation has growing potential, particular- ly in technically complex or high-value disputes, as the law allows mediation both before and during judicial
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