BRAZILIAN HIGH-TECH LITIGATION: Law, Business & Policy

Transcription

1 BRAZILIAN HIGH-TECH LITIGATION: Law, Business & Policy Thursday, May 12 Washington, DC Scan to download this presentation or to receive link via

2 View from the Brazilian Judiciary Aluisio Mendes Brazilian Federal Appellate Judge B RA ZILIAN HIGH-TECH LITIGATION: Law, Business & Policy The George Washington University Law School

3 OVERVIEW ON LEGAL PROCEDURE IN BRAZIL Aluisio Gonçalves de Castro Mendes Federal Appellate Judge, Second Circuit Course Director, Federal Appellate Judge School of the 2nd Circuit (EMARF) Professor, State University of Rio de Janeiro (UERJ) Professor, Estácio de Sá University (Unesa) Pos-doctor, University of Regensburg (Alemanha) LLD and LLM, Federal University of Parana (UFPR) LLM, Johann Goethe-Universität (Frankfurt, Alemanha) Law Expert, University of Brasilia (UnB) Director, Brazilian Institute of Procedural Law (IBDP) Director, Rio de Janeiro Institute of Civil Procedure (ICPC) Member, Iberian-American Institute of Procedural Law, Brazil-Germany Jurists Association, International Association of Procedural Law Member of the Committee of Jurists that assisted with the final wording of the new Code of Civil Procedure (CPC) Book and article writer

4 Topics I THE BRAZILIAN JUDICIAL BRANCH II ACCESS TO JUSTICE III FORMAL SOURCES OF BRAZILIAN LAW IV OVERVIEW OF THE CURRENT BRAZILIAN JUDICIAL SYSTEM V MAIN INNOVATIONS OF THE NEW CODE OF CIVIL PROCEDURE

5 Judiciary Branch in Brazil: Formal, actual strengthening after re-democratization and the 1988 Constitution. Professionalism: a) Technical selection after sitting a public test and having titles assessed for every initial, lower court openings; b) Life-time tenures until the age of 75. Alternated career promotion based on seniority and merit criteria.

6 Judges Education and Earnings Development of initial and continued judge education. National Judicial School (2005). Earnings vary from USD 7-10 thousand gross per month, having a 38% discount due to social security and income tax.

7 National Justice Council Created in Administrative, financial and disciplinary control. Goals and management policies established.

8 Judges in numbers Total number of judges: 16,927 (2014). 8.3 judges per 100,000 people. National average number of lawsuits per judge: 5,890. Source: Executive Summary Courts in figures 2015, CNJ.

9 Judges average age: Total 44.7 Superior Courts 54.7 Federal Courts 41.6 State Courts Source: Judiciary Branch Census 2013, CNJ.

10 Percentage of judges by entering year per gender: 90.0% 80.0% 70.0% 60.0% 50.0% 40.0% 78.6% 74.4% 62.0% 61.1% 38.0% 38.9% 30.0% 20.0% 10.0% 21.4% 25.6% 0.0% 1955 to to to to 2011 Male Female Source: Judiciary Branch Census 2013, CNJ.

11 Percentage of judges as per education: 2.5% 17.7% Superior Courts 15.2% 27.8% 36.7% Federal Courts 0.7% 7.3% 23.2% 28.6% 40.1% Post doctoral Doctoral degree Master degree Specialization course Graduation 0.4% 2.3% State Courts 10.2% 47.7% 39.3% 0.0% 10.0% 20.0% 30.0% 40.0% 50.0% 60.0% Source: Judiciary Branch Census 2013, CNJ.

12 Access to Judicial Power: Preventive and Repressive Jurisdiction. Hybrid system of constitutionality control: a) Diffuse (any judge may take control inrecorded cases); b) Concentrated control (Supreme Court). Trial expenses: a) costs (due to judiciary service); b) judicial evidence (especially expert s opinions); c) attorney fees (as per agreements or defeat fees).

13 Trial Expenses: Trial costs: a) Federal Court: 1% of case amount, USD 3 minimum and USD 542 maximum; b) State Court (RJ): +/- 2% of pleading, USD 20 minimum and USD 9,414 maximum. Expenditures with evidence: expert fees are proposed by the expert designated by the judge as a rule, and the parties may object to the estimated value, the judge renders a final decision on the fee. As a rule, the party presenting the evidence advances the relevant value. The defeated party is ordered to reimburse the prevailing party in respect of expenditures with evidence produced for the case when final decision is rendered.

14 Attorney Fees: As per agreement and defeat fees. The defeated party is ordered to pay the defeat fees to the prevailing party s attorney. Attorney fees are also payable for counterclaim, judgement execution, executory suits and appeals. Set between 10-20% of judicial order, profit or case value, based on criteria such as professionalism, the location where legal services where provided, nature and relevance of case and its duration. Typically, trial courts will set such fees by 10% and said rate can be increased by the court by 15 or20% successively, asfor filed appeals. In respect of public agencies, a range-based percentage applies as per judicial order/profit/case value, between 1-20%.

15 Formal sources of Law or how judges render decisions: Rule oflaw: a) Constitution; b) International Human Rights Treaties; c) Supplementary Laws; d) Ordinary Laws, Provisional Measures, International Treaties, d) Non-statutory rules. Custom. Doctrine. Case law and precedent.

16 Laws: National laws: enacted in the federal level, but enforced in federal, state and municipal levels. E.g. Civil Code, Commercial Code, IP Statute, National Tax Code, Code of Civil Procedure. Federal laws: for federal entities only (Federal Government and relevant bodies, servants, etc). State laws. Municipal laws.

17 Issues that Brazilian Courts face: Excessive number ofcases. E.g. Supreme Court received circa 3,000 cases a year in In 2015: 93,503 cases filed. Total of cases in the Brazilian Judiciary: 100,000 being processed in Delayed decisions. Feeling of unaccountability and unrighteousness. Unequal treatment before identical matters. Legal uncertainty.

18 New Code of Civil Procedure (CPC), in force as per Main objetives: To reinforce consensual methods of dispute settlement. Additional requirements for adversarial and substiation. Cost-effective proceedings. Reasonable duration of proceedings. Equality. Legal certainty.

19 Instruments of the new Code of Civil Procedure: Repetitive decision system: a) Repetitive appeals; b) Incidental Resolution of Repetitive Demands, inspired by the German Musterverfahren (model proceeding). Reinforced case law or precedent system, based on rules intended to govern and bind those.

20 The end Thank you for your time!