Initial Draft of the New Brazilian Code of Civil Procedure

A committee of eleven legal scholars, chaired by Justice Luiz Fux of Brazil’s Superior Court of Justice, was formed on September 30, 2009, in order to prepare a preliminary draft of a new Code of Civil Procedure that would replace the current version of Brazil’s Civil Procedure Code (Law No. 5869, of January 11, 1973).

An initial outline, whose main points were approved by the committee, was presented to the President of Brazil’s Senate, José Sarney, on December 15th, bringing to a close the first step of the revision.  The committee is expected to present an initial report by March 2010 when public consultations will begin.  The final phase of the revision will consist of a complete draft of the proposed text, which when completed will be forwarded to Brazil’s Supreme Court and Congress for preliminary consultation (currently foreseen for the end of May 2010).

Among the proposed innovations are a reduction of the types of appeals and motions that can be brought during a judicial proceeding.  With the exception of urgent matters and provisional remedies, which are interlocutory decisions that would remain appealable, parties will only be allowed to appeal final decisions of trial courts.

Another important pending change is the inclusion within Brazil’s civil procedure framework of the doctrine of stare decisis.  In this manner, courts will be obligated to follow earlier judicial decisions issued by Superior Courts that address identical matters, reducing the amount of pending lawsuits, as well as the amount of conflicting decisions.

Also foreseen is the creation of specific, class-action proceedings for mass litigation, aiming at the reduction of the amount of individual lawsuits filed in connection with identical matters.

Drawing special attention in the initial proposals is the desire to expedite judicial proceedings through the adoption of simplified proceedings and the unification of once separate acts.  According to the committee’s projections, the duration of the average lawsuit, currently more than a decade, should be reduced to approximately two years.

If the proposed changes succeed in reducing the duration of lawsuits and in creating more uniform and stable case law, the level of confidence that Brazilian society has in the judiciary will increase.  In addition, expedited judicial proceedings should stimulate the enforcement of contracts, which will allow increased foreign investment and boost all economic actors, this being an extremely positive development.

Nevertheless, if on the one hand such measures are praiseworthy, on the other it is of paramount importance that care be taken with respect to both substantive and procedural due process of law – by extinguishing some proceedings without proper care for its effects and consequences, the risk of violating constitutional rights and guarantees may be created.  Only if all of these issues are taken into consideration will court proceedings be maximally efficient and effective rights of action exist.