LITIGATION AND ARBITRATION IN BRAZIL: AN OVERVIEW

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1 Presentation made at the China Economic and Trade Arbitration Commission - CIETAC Prof. Dr. Durval de Noronha Goyos Jr. President - Noronha Advogados Beijing November 1, Sao Paulo Rio de Janeiro Brasília Curitiba Porto Alegre Recife Belo Horizonte Campo Grande London Lisbon Shanghai Miami Buenos Aires New Delhi Johannesburg LITIGATION AND ARBITRATION IN BRAZIL: AN OVERVIEW

2 JUDICIARY IN BRAZIL: AN OVERVIEW 1. INDEX; 2. SOME FUNDAMENTALS; 3. ORIGIN OF THE BRAZILIAN LEGAL SYSTEM; 4. UPDATE OF THE LEGAL INFRASTRUCTURE IN BRAZIL I AND II; 5. GENERAL OVERVIEW: BRAZILIAN FEDERAL CONSTITUTION; 6. THE BRAZILIAN CONSTITUTIONAL FRAMEWORK BRAZILIAN JUDICIARY; 7. LABOUR LAW; 8. LITIGATION: NATURE OF CASES; 9. BRAZIL: NEW JUDICIAL CASES PER YEAR; 10. NUMBER OF JUDGES; 11. BRAZIL: NEW JUDICIAL CASES PER JUDGE PER YEAR; 12. MINISTRY OF JUSTICE; 13. ADVOCACY OF THE FEDERAL UNION (AGU); 14. ATTORNEY GENERAL OFFICE; 15. BRAZILIAN BAR ASSOCIATION; 16. ARBITRATION IN BRAZIL.

3 Map of Brazil

4 Brazil's Economy Biggest Economies - Projected GDP US$ Trillion Brazil rising Biggest economies, 2012 GDP Strn at average exchange rates United States China Japan Germany Brazil France Britain Italy

5 BRICS Profile GDP per person, $ Russia Brazil South Africa China India GDP, average annual growth, , % Gini coefficient*, latest 0 0,1 0,2 0,3 0,4 0,5 0,6 0,7 South Africa China Brazil Russia India China India Russia Brazil South Africa Sources: IMF; Euromonitor International *1 is perfect inequality

6 ORIGIN OF THE BRAZILIAN LEGAL SYSTEM LAW FIELDS ORIGIN Constitution Commercial + Civil + Corporate Civil Procedure + Criminal Procedure Portugal France Germany Labour + Criminal Competition Law + Insurance+ Bankruptcy Consumer Law Italy United States EU

7 UPDATE OF THE LEGAL INFRASTRUCTURE IN BRAZIL -I LAW ADMISSION EFFECT Constitution 1988 Code of Consumer s Defence 1990 Franchising 1994 Safeguard Law 1994 Intellectual Property 1996 Arbitration 1996 Public Bid + Contracts 1998 Sport Law 1998

8 UPDATE OF THE LEGAL INFRASTRUCTURE IN BRAZIL -II LAW ADMISSION FFECT Anti-trust + Competition Law 2000 Corporate Law 2001 Civil Code 2003 Reform of the Judiciary Brazilian National Council of Justice 2004 Bankruptcy Law 2005 Reform of the Penal Code 2005 Reform of the Code of Civil Procedure 2006 Reform of the Code of Criminal Procedure 2008

9 GENERAL OVERVIEW: BRAZILIAN FEDERAL CONSTITUTION The Brazilian Federal Constitution guarantees to all workers: protection against arbitrary dismissal; national uniform minimum wage; unemployment benefit; maternity and paternity leaves; and occupational accident insurance.

10 THE BRAZILIAN CONSTITUTIONAL FRAMEWORK BRAZILIAN JUDICIARY HIGHER COURTS Ordinary Justice System Civil Criminal State Federal State Federal State Court Federal Regional Court State Court Federal Regional Court Civil Court Small Claims Civil Court Small Claims Federal Court Criminal Court Small Matters Criminal Court Small Matters Criminal Federal Court

11 STF FEDERAL SUPREME COURT

12 STJ SUPERIOR COURT OF JUSTICE

13 TST SUPERIOR LABOUR COURT

14 TRT 2 ND INSTANCE -SÃO PAULO

15 1. CONSTITUTION OF 1988 Minimum Wage in Brazil - R$ 622 except for the following States: São Paulo State R$ 700,00 Rio Grande do Sul R$ 700,00 Rio de Janeiro R$ 729,00 Maximum duration of the day s work 8 hours per day 44 hours per week Overtime Pay: + 50% Annual Vacation: + 1/3 Mandatory Fund for Unemployment Benefit (FGTS): 8,5% 2. LABOUR CODE LABOUR LAW National Institute of Social Security (INSS) : 8% - 11%

16 LITIGATION NATURE OF THE CASES Administrative and Public Law 29% Civil 16% Labour Matters 16% Tax Matters 14% Criminal Law 13% Consumer Law 4% Others 8% Source: STF * estimated:

17 Brazil: NEW JUDICIAL CASES PER YEAR State Circuit 17.7 million Labour Circuit 3 million Federal Circuit 1 million TOTAL 21 million Source: Brazilian National Council of Justice (CNJ). Data for 2010

18 Brazil: NUMBER OF JUDGES State Circuit Labour Circuit Federal Circuit TOTAL Source: Brazilian National Council of Justice (CNJ ). Data for 2009

19 Brazil: NEW JUDICIAL CASES PER JUDGE PER YEAR Federal Circuit 14 thousand State Circuit 8 thousand Labour Circuit 8 thousand Source: Brazilian National Council of Justice (CNJ )

20 ROLES: MINISTRY OF JUSTICE to defend the legal system, political rights and constitutional guarantees; National Security: Federal Police; to defend the National Economy: financial crimes and consumer rights; administration of the national prison system; dealing with nationality and immigration issues.

21 AGU ADVOCACY OF THE FEDERAL UNION ROLES: Advising the President, as well as the members of the Executive branch, the federal agencies and public foundations; Mediate conflicts involving federal public entities; Defend all Federal entities in litigation in which the Federal Union is a part.

22 ATTORNEY GENERAL ROLES: to defend social and individual rights, for example, the right to life, liberty and health; ensure the compliance with Brazilian Law as well as international treaties signed by Brazil.

23 BRAZILIAN BAR ASSOCIATION ROLES: Defend the Constitution; the democratic state of justice; human rights; social justice; fight for the application of the law; the demand of a fast judgment and improvement of the culture and the legal institution. Promoting Law practice, selection and defense of lawyers within Brazil. Brazil has today approximately lawyers. Source: Brazilian Bar Association

24 ARBITRATION IN BRAZIL BASIC LEGAL STRUCTURE Law 9307/96 regulates Arbitration in Brazil and ensures that Arbitration Awards have the same effect as judicial sentences. Brazil ratified without reservations the New York Convention on Arbitration in Other treaties: Geneva Protocol on Arbitration Clauses of 1923; The Montevideo Convention of 1979; The Panama Convention of 1975; and Mercosul Agreement on International Commercial Arbitration of 1998.

25 MAIN COMMERCIAL ARBITRATION CENTERS IN BRAZIL Arbitration Center of FIESP São Paulo. Arbitration Center of FINJAN Rio de Janeiro. Arbitration Center of the Portuguese Chamber of Commerce São Paulo. Arbitration Center of the Canadian Chamber of Commerce São Paulo. Arbitration Center of the Getulio Vargas Foundation São Paulo. Arbitration Center of BOVESPA/BMF São Paulo.

26 DOMESTIC COMMERCIAL ARBITRATION IN BRAZIL GENERAL STATISTICS New Cases Ongoing Cases Decisions

27 BRAZILIAN CASES BEFORE THE INTERNATIONAL CHAMBER OF COMMERCE (ICC) ICC parties in brief 796 cases Most frequent nationalities 2011 USA 7.78% France 7.35% Germany 6.87% Brazil 4.11% United Kingdom 3.53%

28 BRAZILIAN PARTIES BEFORE THE ICC ICC total Parties in 2011 in the Americas USA 163 Brazil 86 Argentina 19 Mexico 18

29 PROSPECTS FOR THE DEVELOPMENT OF ARBITRATION IN BILATERAL RELATIONS BETWEEN BRAZIL AND CHINA

30 NORONHA ADVOGADOS

31 Durval de Noronha Goyos Jr.

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