Brazil: Civil Procedure In Brazil: A New Legal Broom

One of the most important jurists in Brazilian history, the former diplomat and lawyer Rui Barbosa, once said: "Delayed justice is not justice, but qualified and manifest injustice." After more than 40 years in force, Brazil is saying farewell to its Code of Civil Procedure (Law No. 5.869 of 1973), which governs the proceedings of most kinds of civil lawsuits in Brazil, from family issues to contracts and intellectual property rights enforcement. Often criticised for allowing multiple appeals and having overly bureaucratic proceedings, this law was seen as one of the reasons behind the unreasonable duration of court proceedings and, in some cases, their consequent inefficiency.

In response to public demand and after many years of debates involving judges, politicians and jurists, Brazil has now enacted a new code (Law No. 13.105 of 2015), which will come into force in March 2016 for all new and pending lawsuits. Briefly, this new law not only consolidates all rules issued in the last decade to expedite court proceedings, but also creates a completely new procedural system, focused on providing fast and effective solutions to all kinds of legal disputes, and meeting the difficulties and challenges of modern litigation.

The IP story

There are changes, especially concerning the enforcement of IP rights, which positively affect the strategy of IP protection and litigation in Brazil.

In this regard, one of the most important legal instruments available for rights owners involved in infringement actions is a preliminary injunction. It can be granted to immediately halt, for example, an act of unfair competition or passing off, and therefore avoids the damages arising from long-term ligation until a final decision is rendered.

Given its relevance, the new code includes special provisions for preliminary injunctions stating that if the losing party does not appeal against an injunction order granted by the judge, it becomes final, closing the whole lawsuit. The losing party would need to start a new court action to try to overturn the injunction.

For IP owners, these new provisions should be considered very advantageous for resolving litigation in a short time (sometimes in just a few weeks) and consequently with reduced costs, mainly in cases against smaller companies or individuals.

The law also brings relevant changes regarding injunction actions—usually filed before the main lawsuit with the purpose of obtaining a report from a court's technical expert (eg, attesting to the infringement or non-infringement of the IP right)—which are used as supporting evidence. This can increase the chances of success in the case. With the new law, such preparatory actions may be allowed without proof of urgency.

Notwithstanding this, judges will no longer be free to appoint any entrusted technical expert. Instead, they will have to choose from a formal list of professionals that will be created by each court. This measure will bring more certainty, predictability and quality in expert analysis. "THE NEW RULES WILL BRING AGILITY TO THE RESOLUTION OF LITIGATION, AND TO THE QUALIFICATION AND SECURITY OF THE COURTS' Moreover, the judges will no longer be allowed to issue a decision on the merits of just one argument (ignoring the other arguments from the parties), but will need to specifically comment all issues raised by the parties, giving more clarity and qualification to the decision.

Brazil remains a civil law country but this new law strengthens the importance of case law (in practical terms, parties will no longer be able to file subsequent appeals in cases where the matter under dispute has been decided by the courts) and allows judges readily to decide repetitive cases.

Fewer Appeals

Another very important change found in the new law is a reduction in the number of available appeals. For example, the interlocutory appeal is now an exception, acceptable only in urgent cases, so that the interlocutory decision will be normally addressed in an eventual main appeal. In addition, a three-judge panel will still decide the main appeal but, in case of a split decision by majority of votes, it will no longer be possible to file a divergence appeal. It is certain that these rules will not please the losing party but, with fewer appeals, court proceedings will have a much quicker turnover.

With some of these changes, it is clear that the new law seeks to reduce the backlog of lawsuits, but it is also focused on encouraging agreements between the parties. Therefore, the first act of defence will be to attend a conciliation hearing, only after which a deadline for the presentation of the full response by the defendant will be triggered.

Another major change is that the parties will be able to negotiate some procedural rules, such as deadlines and the choice of the court's expert (within the court's formal list of professionals). Considering the complexity of IP cases, this flexibility may help the parties to have a more technically qualified solution for the case.

In general, the new law is being received optimistically, based on the belief from specialists that the new rules will bring agility to the resolution of litigation, and to the qualification and security of the courts' decisions.

It must be noted that some courts, such as the federal and state courts outside Rio de Janeiro, already have specialist judges assigned to IP cases, so it is possible to observe increased quality and agility of the resolution of court action at those courts.

Therefore, with the new code and the further specialisation of the courts, we are optimistic concerning the future of cases involving IP rights, which are roughly estimated to be decided at trial level between three months and two years, depending on the complexity of the underlying and circumstantial situations. It is a great advance in the protection of IP rights, which will certainly bring security to IP owners and the other players involved in enforcing and combating infringement in Brazil.

It is safe to say that the changes to the code will take litigation in Brazil to the next level. On the other, it must be noted that the litigators—and especially the judges—will take some time to adapt to and stabilise the interpretation of the new rules.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions