BRAZIL Law and Practice Contributed by: Thaís Vasconcellos de Sá, Bermudes Advogados
ferent statutes, which can sometimes create overlap and confusion when applying the law. The Brazilian system also enjoys the particular- ity of having different authorities with concur- rent competences over the same types of claims (legal representatives of the federal govern- ment, the states and the municipalities, as well as public prosecutors and public defenders), which would almost certainly lead to duplica- tive and multiple demands, in and out of court (and before different courts at the same time, depending on the territorial extent of the crisis event). Being advised by consultants who know how to best navigate these particularities is key The legal system has been altered to respond to the COVID-19 pandemic crisis, specifically suspending the statute of limitations for claims and allowing more time for people to judicially seek their rights. Other initiatives to update sig- nificant legal statutes are ongoing – for example, the Brazilian Civil Code. One would expect the modernisation of the relevant laws – which is a never-ending exercise – to reflect the complexi- ties identified in recent practice and better regu- late potential future crises (for example, expect- ed and recurrent extreme climate events) and their consequences on different areas of the law. 2.3 Government Role There is no single governmental entity in Brazil with the authority to co-ordinate crisis manage- ment, or to oversee or comment on a company’s preparedness and adequacy regarding steps taken to respond to a crisis. to a successful crisis response. 2.2 Expected Legal Updates Most crises will have multifaceted legal implica- tions that fall within the competence of different Brazilian authorities (including the government at municipal, state and federal levels, depend-
ing on the event), and the company will need to address each of their demands. In several mat- ters, however, these competences are concur- rent (for example, environmental liability), which leads to a destructive overlap of demands and legal requests. In the case of public prosecu- tors and public defenders, their members also enjoy autonomy within their respective function, so there is no guarantee of co-ordination even within the same institution. In that scenario, co-ordinating the response to demands from public authorities during a crisis should include having a consistent approach on all fronts, as well as engaging these authorities to act together, dealing with their demands and the multiple judicial proceedings that will come. This will depend almost entirely on the efforts of the company and its external consultants, and will be one of the most complex challenges a company will face during the process. Some crises will also trigger the need to co- ordinate immediate emergency responses with the local authorities (ie, the Civil Defence at the municipality and/or state level), if there are emer- gency actions to be taken (eg, the research and rescue of individuals). 2.4 Independent Oversight There is no specific governmental oversight of a company’s preparedness for a crisis, but com- panies should have and abide by adequate cor- porate governance laws and regulations – these would fall within the authority of the Securities and Exchange Commission (CVM), the entity that regulates capital markets in Brazil. Other specific regulatory provisions related to manag- ing risks associated with the company’s activi- ties in each sector would fall under the oversight of the respective regulatory bodies – such as (among others):
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