BRAZIL Law and Practice Contributed by: Arthur Villamil and Yuri Luna Dias, Villamil Advogados
10.4 Issues Considered by the Appeal Court at an Appeal Appellate courts primarily conduct a review rather than a re-hearing of first instance decisions. This review focuses on legal and procedural aspects of the original decision, assessing whether there were errors in the application of law or significant procedural violations. In ordinary appeals, courts may review both legal and factual matters, including evidence presented at the first instance. However, no new evidence is usually admitted unless exceptional circumstances justify it. 10.5 Court-Imposed Conditions on Granting an Appeal Courts cannot impose conditions on granting an appeal. Once the appellant meets the procedural requirements, such as filing within the designated timeframe and paying court fees, the appeal must be admitted for consideration. 10.6 Powers of the Appellate Court After an Appeal Hearing The appellate court, upon hearing an appeal, may: • confirm the first instance decision, maintaining the original judgment; • overturn it, in whole or in part, issuing a new deci- sion; or • set it aside, ordering a retrial at the first instance if significant procedural issues are identified. 11. Costs 11.1 Responsibility for Paying the Costs of Litigation The parties must prepay litigation costs, including those for actions ordered by the judge. Costs for court-appointed experts are shared if evaluations are ordered ex officio or requested by both parties. The losing party typically reimburses the prevailing party for advance-paid court fees, expert fees, and witness expenses, but contractual attorney fees are generally not recoverable. Additionally, the judge awards court-mandated attor- neys’ fees (10–20% of the judgment) to the winning attorney, which are distinct from client fees and belong
the decision made by the lower court, potentially alter- ing or upholding the outcome. Separately, there is the interlocutory appeal ( agravo de instrumento ), which is used to challenge interim deci- sions made by the trial court during the course of the proceedings but before a final judgment is reached. Appeals, whether from final judgments or interlocutory decisions, are typically reviewed by a panel of judges in a second instance court, but in certain cases, a reporting judge can decide individually, with the option for the losing party to seek a review by the full panel. Higher courts like the STJ and the STF handle appeals on legal grounds through recurso especial and recur- so extraordinário , respectively, focusing on issues of federal law or constitutional interpretation without re- examining the facts of the case. 10.2 Rules Concerning Appeals of Judgments In Brazil, any party whose claim is denied may file an ordinary appeal with the state or federal courts of appeals to seek review of both factual and legal aspects of a lower court’s decision. In cases raising substantial legal or constitutional issues, two specif- ic forms of appeal are available: the special appeal ( recurso especial ) to the STJ for matters involving federal law, and the extraordinary appeal ( recurso extraordinário ) to the STF for constitutional questions. These appeals are only permissible if specific criteria are met, including authorisation from the presiding judge of the Court of Appeals, and for STF appeals, a showing of “general repercussion” indicating the con- stitutional issue’s broader societal significance. This structured approach confines higher court review to cases with far-reaching legal or public impact. 10.3 Procedure for Taking an Appeal The party wishing to appeal must pay the necessary court fees and file the appeal within the designated period, generally 15 working days after notification of the decision through legal representatives. These timeframes are strictly enforced, with the countdown beginning upon notification, and missing a deadline typically results in forfeiture of the right to appeal.
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