Brazil is a civil law country where, in most cases, codified laws take precedence over judicial decisions. However, over the last 60 years or so, Brazil has instituted several procedures that give greater weight than previously to the normative effect of judicial decisions. The main reason to give judicial decisions such importance is the overwhelming case load in courts and the need to make them more efficient (In fact, the Brazilian Federal Constitution demands a “reasonable duration” of all judicial proceedings - Article 5, LXXVIII, of the Federal Constitution). As a result, the term precedent and even the concept of stare decisis (i.e., determining points in litigation according to precedent), have started to appear more frequently in Brazil, in both scholars’ opinions and legislated changes enacted in recent years. Brazil has a relatively new system of precedents introduced by the Code of Civil Procedure (Law No 13,105 of March 16, 2015 - CPC). This new system has numerous peculiarities in Brazilian Law. Article 927, for example, states that the judges and courts in Brazil will observe: past decisions from the Federal Supreme Court in constitutional matters; the binding decisions of the Federal Supreme Court; the past decisions by the Superior Court of Justice (Brazil’s court of standardization of federal matters); and decisions of highest tier state courts.
Leaving aside special courts covering areas such as military, electoral and labor (which fall outside the scope of this report), the Brazilian civil justice system is structured into two different judicial branches:
- federal courts; and
- the courts organized by each state (state courts).
The jurisdiction of the federal and state courts does not overlap. The jurisdiction of the federal courts will depend on:
- the matter under dispute (ratione materiae); and
- the legal nature of each of the parties involved in the litigation (ratione personae).
State courts will hear cases that do not fall under the jurisdiction of other courts.
The different federal and state courts and the type of disputes that they have jurisdiction over are as follows.
Federal Low Courts
These courts are scattered over the capitals and major cities of Brazil. In general, these courts have jurisdiction to hear most disputes in which the federal government, federal bodies and agencies and some federal companies take part as plaintiffs, defendants, or intervening parties. Also, these courts have jurisdiction over disputes involving a foreign government or organism and companies or individuals domiciled in Brazil or disputes involving one of the referred foreign entities and a Brazilian city government. The Federal Low Courts are also competent to enforce foreign awards after the exequatur process before the Superior Court of Justice.
State Low Courts
Each state is empowered to organize its own Judiciary Branch. These courts are spread almost all over the country and have jurisdiction to rule on most disputes between private parties. In addition, these State Low Courts have jurisdiction over disputes based on private law or state and municipal environmental laws, disputes involving the government of the respective state, as well as state-owned companies (like Petrobras), and cities’ governments and city-owned companies. Furthermore, there are low courts specialized in bankruptcy (and even in case a federal body takes part of the bankruptcy/rehabilitation proceedings, for instance, as a creditor, this will not result in jurisdiction of the federal courts in detriment of the particular state bankruptcy court), and intellectual property disputes.
Federal High Courts
Their territorial jurisdiction is divided into six different regions (each covering two or more states). In most cases, these courts rule the appeals filed in the lawsuits started in the Federal Low courts located in the applicable region.
State High Courts
Generally, these High Courts rule over the appeals filed in lawsuits started at the State Low Courts where the respective High Court is located.
Superior Court of Justice
This federal court is located in Brasilia, the country’s capital. One of the main roles of this court is to rule over appeals filed against decisions rendered either by a Federal or State High Court when:
- such decisions contravene a treaty, convention or federal law; or
- upon the analysis of a given treaty, convention or federal law, such decisions conflict with precedents issued by the Supreme Court of Justice or the Supreme Court on the same matter.
It is also the court responsible to grant the exequatur of foreign decisions, foreign arbitral awards or foreign judgments in Brazil. An exequatur is a precondition that permits the enforcement of a foreign decision, judgment or arbitral award within Brazilian territory.
It is the last level of the Brazilian judiciary and, like the Superior Court of Justice, is located in Brasilia. One of the main roles of this federal court is to rule over appeals against decisions rendered by a Federal or a State High Court or, even, decisions rendered by the Superior Court of Justice, when these decisions:
- directly contravene the Brazilian Constitution (the violation must have “general repercussions” in order to be analyzed by the Supreme Court, meaning that the issue discussed in the appeal needs to be relevant from an economic, political, social or legal standpoint and that it transcends the interests of the parties involved);
- declare a given treaty, convention or federal law as unconstitutional; or
- relate to a law or ordinance deemed valid and issued by the relevant authority in one of the Brazilian states or cities in detriment to the Brazilian Constitution.
Further, Brazil does not have a separate administrative jurisdiction, which means that the judicial branch including the federal and state courts have jurisdiction over all disputes, including disputes involving the executive branch or state-owned entities.
Court proceedings are generally public, except where court proceedings are to be confidential, namely cases involving:
- public or social interest;
- family law;
- information protected by the right to privacy; and
- agreements with an arbitration clause.