BRAZIL Law and Practice Contributed by: Maria Augusta Rost and Ricardo Barretto, Fenelon Barretto Rost
9.4 Evidence Required to Initiate a Claim Under Brazilian law, the initial claim must be accompanied by essential documents required for filing, without prejudice to the production of additional evidence during the investigative phase of the proceedings (see 9.5 Procedural Stages ). The claimant is responsible for presenting facts and evidence to establish their legitimacy and procedural interest in bringing the case. Legiti - macy determines who has the right to litigate, while procedural interest requires demonstrating that the legal action is both relevant and neces - sary for protecting the claimant’s rights. If the claimant does not possess the essential documents needed to file the claim, they may request the judge to take steps to obtain them. However, in cases of writs of mandamus, the claimant must submit all supporting evidence at the time of filing. 9.5 Procedural Stages From the outset of proceedings, in the initial claim, the claimant must set out the facts and legal grounds of their case and submit any essential evidence to support their claim. The claimant must also specify, in the initial claim, any additional evidence they intend to present during the evidentiary stage, known as the instruction phase. The stages of a judicial process are typically divided into the following phases: • pleadings; • collection of evidence; • decision; • appeal; and • enforcement.
9.6 Initial Sifting Process The initial claim must comply with the require - ments set out in the Civil Procedure Code, failing which it may be rejected. A claim will be rejected if it does not clearly specify: • the court to which it is addressed; • information sufficient to identify the defend - ant; • the facts and legal grounds of the claim; • the relief sought, with its specifications; • the value of the claim; • essential evidence to establish the claimant’s standing and procedural interest, as well as any additional evidence intended to prove the alleged facts; and • whether the claimant opts for a conciliation or mediation hearing. Additionally, an initial claim will be rejected if it is deemed defective (inept) – for example, if it: • lacks a cause of action or a clear request; • contains an indeterminate request; • includes contradictory requests; or • presents a narrative of facts that does not logically support the claim. The claim will also be inadmissible if the claimant lacks legal standing or procedural interest. 9.7 Expedited Proceedings There is no fast-track procedure specifically for urgent cases. However, Brazilian law allows for the granting of urgent measures in judicial pro - ceedings. One such mechanism is preliminary injunctive relief, which can be requested at the start of a legal action. If granted, it provisionally advances the substantive right claimed by the party, provided there is evidence of imminent harm or a risk to the effective outcome of the case.
51
CHAMBERS.COM
Powered by FlippingBook