BRAZIL Law and Practice Contributed by: Maria Augusta Rost and Ricardo Barretto, Fenelon Barretto Rost
4. Nature of the Decision-Maker 4.1 Judicial Review of Commercial and Non-Governmental Decisions In Brazil, the Federal Constitution establishes the universality of judicial jurisdiction as a funda - mental principle. Strictly private disputes, such as commercial and employment conflicts, can be brought before the courts in accordance with procedural rules, without the need to first resort to private dispute resolution mechanisms. These cases typically fall under the jurisdiction of state courts or labour courts. This broad access to the judiciary is one of the factors contributing to the high level of litiga - tion in Brazil. However, in recent years, efforts have been made to promote non-judicial dispute resolution mechanisms, such as mediation and arbitration. 5. Ouster 5.1 Legislative or Contractual Limits on Judicial Review The Brazilian Federal Constitution guarantees the universal jurisdiction of the judiciary as a fun - damental right, ensuring that no law or contract can prevent individuals or entities from bringing private disputes or cases involving public institu - tions before the courts. The exception is arbitration, which may be freely agreed upon by the parties in a contract, includ - ing those involving the government. However, it is important to note that only disposable rights (commonly classified as any right that may be assigned, conveyed, waived or settled) can be subject to an arbitration clause. Arbitration has become a common mechanism for resolving
3.5 Challenging Decisions Without Legal Effect In general, government acts that produce legal effects and impact individuals, businesses or the government itself – such as decision-mak - ing acts by public officials – can be challenged. However, preparatory acts, such as technical studies, usually cannot be contested, as they do not, in themselves, affect the rights of those subject to administration. Nonetheless, some important aspects must be considered. In certain administrative procedures, legislation often requires intermediate acts before a final decision is made to ensure a well-founded pub - lic decision. The final decision, in such cases, is considered “complex” government act. For example, before a public procurement process, several preliminary steps are required by law and regulation, such as technical studies, price research and legal department reviews. If these legally mandated steps are not followed, it can lead to formal challenges and the invalidation of the procurement. Likewise, if the final decision is flawed due to technical or legal deficiencies, it may also be subject to challenge and annulment. Furthermore, in complex administrative proce - dures – such as public procurement – the law sometimes explicitly allows for certain acts to be contested even before the process is concluded. One example is the challenge to a request for proposals, which sets out the general rules for competition among interested parties. It is always advisable to seek legal advice before challenging any government act, ensuring that the specific circumstances and applicable leg - islation are properly considered.
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