Procedural ReformBrazil

Last updated 20 Nov 07

Latin American Law

Importance of rule of law

World Bank, "Where is the Wealth of Nations?: Measuring Capital for the 21st Century“ (2005)

US assets($95,000)

US GDP($43,800)

Mexico assets($27,500)

MexicoGDP

($10,700)

Why is MexicoGDP so much smaller(given its asset base)?

Assets = machinery, equipment, structures (including infrastructure), urban land.

US assets

US GDP

Mexico assets

MexicoGDP

Answer: Intangible assets• US: $418,000 per capita• Mexico: $34,000 per capita

Intangible assets

Intangible assets

Intangible assets = trust among people, efficient judicial system, clear property rights, effective government

US assets

US GDP

Mexico assets

MexicoGDP

Rule of law (57%)Intangible

assets

Intangible assets

Intangible assets = trust among people, efficient judicial system, clear property rights, effective government

Education (36%)

Today’s topics• US “civil law notaries”

– Who, what, where, why• Licensed lawyers• “Authentic acts”• “Presumed correct”

– Full faith and credit

• Procedural reforms (Brazil)– Court structure

• Regional, not centralized, appellate courts• Specialized courts

– Adversarial rights • Greater party autonomy• Greater transparency: evidence, trial, decision

– New procedures• Injunction, habeas data, special appeal• Strengthened: writ of protection, popular action

• Model for borrowing

• Gain perspective

• Discover truths

• Impose / power

Value of knowing other legal systems

Civil law not monolithic …

US “civil law notaries” (imported from Latin America)

FSA 118.10(1)(b). "Civil-law notary" means a person who is a member in good standing of The Florida Bar, who has practiced law for at least 5 years, and who is appointed by the Secretary of State as a civil-law notary.

FSA 118.10(3), (4).A civil-law notary is authorized to issue authentic acts and thereby may authenticate or certify any document, transaction, event, condition, or occurrence. The contents of an authentic act and matters incorporated therein shall be presumed correct. …

FSA 118.10(1)(a). "Authentic act" means an instrument executed by a civil-law notary … which includes the particulars and capacities to act of any transacting parties, a confirmation of the full text of any necessary instrument, the signatures … of any transacting parties, the signature and seal of a civil-law notary ….

Full faith and credit

US Constitution

Article IV

Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.

Brazil CPC pedigree …

VaticanItaly

Germany

BrazilCPC

UnitedStates

• Pleading

• Correction

• Discovery

• Hearing / judgment

• Execution

True of false (Brazil)__ The “trial” phase is a series of informal business-like meetings, with the

judge as gatekeeper, fact-finder, decider__ The parties have autonomy to mold the scope of the action, introduce facts,

make requests to the judge, but not cross-examine witnesses__ Judges act in an inquisitorial fashion, choosing what evidence to pursue,

examining witnesses, identifying the relevant legal issues__ Public trials are the norm, except where privacy interests (such as in family

law cases) limit presence to the parties and their lawyers __ Trial judges must give an opinion laying out both facts and law; conclusory

“whereas” and “considering” clauses no longer happen__ The pleading phase requires the judge to accept the complaint, to which the

defendant files an answer, exception, counter-claim __ Oral testimony has become the norm, with documentary evidence (such as

business contracts) subject to testimonial authentication__ There is no civil imprisonment for “contempt of court,” which can only lead to

a fine, except in the case of non-payment of child support __ Appellate courts review both factual and legal issues, and can go beyond

the record below and admit new evidence__ Appellate courts can affirm, reverse, or modify the trial court’s judgment, but

they cannot remand the case__ The public civil suit may be filed by the government or private association to

protect the environment or consumers, with recovery going to a fund

True of false (Brazil)__ The “trial” phase is a series of informal business-like meetings, with the

judge as gatekeeper, fact-finder, decider__ The parties have autonomy to mold the scope of the action, introduce facts,

make requests to the judge, but not cross-examine witnesses__ Judges act in an inquisitorial fashion, choosing what evidence to pursue,

examining witnesses, identifying the relevant legal issues__ Public trials are the norm, except where privacy interests (such as in family

law cases) limit presence to the parties and their lawyers __ Trial judges must give an opinion laying out both facts and law; conclusory

“whereas” and “considering” clauses no longer happen__ The pleading phase requires the judge to accept the complaint, to which the

defendant files an answer, exception, counter-claim __ Oral testimony has become the norm, with documentary evidence (such as

business contracts) subject to testimonial authentication__ There is no civil imprisonment for “contempt of court,” which can only lead to

a fine, except in the case of non-payment of child support __ Appellate courts review both factual and legal issues, and can go beyond

the record below and admit new evidence__ Appellate courts can affirm, reverse, or modify the trial court’s judgment, but

they cannot remand the case__ The public civil suit may be filed by the government or private association to

protect the environment or consumers, with recovery going to a fund

Settlement

Complaint

1. statement of facts (inc proofs intend to introduce, docs)

2. considerations of law (inc supporting statutes/authorities)

3. prayer for relief

* * *

Judge must OK, may order be altered

• No amendment without consent of defendant

• Judge may only grant relief sought

Answer

1. factual allegations (inc proofs intend to introduce, docs)

2. legal provisions/ authorities on which defendant relies

* * *

•   15 days from entry of proof of service

Counterclaim

1. only defendant may file counterclaim

2. must be based on principal action or upon defense to the complaint

* * *

• considered new action

• must be in form of proper complaint

In Brazil, Article 401 of the CPC states:

“Exclusively oral evidence shall only be admitted in contracts whose value does not exceed 10 times the highest minimum wage in the country at the time the contract was celebrated.”

David Grassi(Brazil appears to be holding firmly to its civil law tradition)

Judge Adriana Rizzotto Judge Henry A. Mentz, Jr

In a recent survey of Brazilian judges, 75% said that if presented with the choice of applying a clear legal norm versus promoting their vision of “social justice” they would choose the latter.

“Alternative law” is considered Brazil’s most influential school of thought right now.

Rachael Lewis

Arbitration is not as popular in Latin America as it is in America or European countries.

The Mercosur Treaty encourages trans-national corporations to choose signatory nations as attractive investment forums.

But arbitral awards against Brazilians are not being given FFC that the Treaty demands.

Ray Genco

Appellate review …

Appealability

Ordinary Court

Appeals Court

Supreme CourtSupreme Court

Appeals Court

District Court

final decisions

injunctions,certified Qs

writ oferror

interlocutoryorders

judgment(inc by Public Ministry)

writ ofcertiorari

A tale of twoSupreme courts

  2000 Brazil 2000 US 2002 Brazil 2005 US

Received 105, 307 2,413 160,453 8,521

Decided 86, 138 115 83,097 169

Cases/ Judge/Year

7,830 13 7,554 19

Cases/Judge/ Day 21.5 0.31 20.7 0.46

End