Given that, in general, the Brazilian Legal System allows appeals of any and all types of judicial decisions, by passing Law no. 11.187/05, the Legislator sought to limit the necessity of immediate Court review of appeals filed against interlocutory decisions (i.e., the determinations issued before the final decision).
In this sense, it should be noted that the Brazilian Civil Procedure Code provides for Appeals of interlocutory decisions under two distinct circumstances: (i) the interlocutory appeal, filed directly with the Court and immediately ruled upon; and (ii) the appeal that is suspended until the time of the final decision on the case, also filed with the trial Court, but with the sole purpose of avoiding preclusion, subject which shall be reiterated at a later potential appeal of the final decision to be issued in the case.
Note that, in the Brazilian Legal System, the failure to file an appeal may result in later preclusion, where the party may become estopped from bringing an issue already decided upon in the lawsuit. The only occasions when preclusion does not apply include temporary provisions (preliminary injunctions) or issues of public interest.
According to the prior system, to avoid preclusion, it was discretionary to the parties to choose any of the modalities of appeal against interlocutory decisions. However, the appeal suspended until final decision was not often used, given that the interlocutory appeal always appeared more attractive for it was immediately reviewed and capable of causing suspension of the decision?s effects while appeal was pending in the cases where the appealed decision had potential to cause harm that was grave and difficult to repair.
As such, because the parties were allowed to choose the appeal modality, there were an increasing number of interlocutory appeals, which overly-crowded the courts? dockets. For this reason, Law no. 11.187/05 was passed, to limit the use of interlocutory appeals to the cases that, under the old regime, had the potential of having the sentence suspended (as stated above, due to the possibility of grave and difficult-to-repair harm).
In this manner, through Law no. 11.187/05, the interlocutory decisions, by rule, became subject only to the type of appeal that is suspended until the final decision, filing which is necessary to avoid preclusion. There are very few exceptions, mainly when the appealed decision represents risk of grave and difficult-to-repair harm, which previously granted suspension effects to an interlocutory appeal filed, when now it is possible to still file an interlocutory appeal.
Yet, Law no. 11.187/05 has failed to provide applicable sanctions to the party that files, instead of an appeal that is suspended until the final decision, an inappropriate interlocutory appeal, which currently merely results in the alteration to the appropriate form of appeal. In light of this, what has been seen in practice is that, anxious for a prompt modification of a prejudicial decision, the parties have kept on arbitrarily filing interlocutory appeals. In these cases, since the determination of the appropriateness of the appeals requires a review of each case, even though identifying the possibility of changing the modality of the appeal, the courts continue to accept interlocutory appeals, merely denying the suspension effects, in the very same manner it took place before the reform.
To this point, not withstanding the currently existent sanctions for bad faith litigation, we hereby submit that the new Law should have been bolder, imposing specific monetary sanctions against the abusive application of the interlocutory appeal. On this subject, it should be noted that discussions on additional changes to the appellate system are already under way, with the purpose of restricting interlocutory appeals to objective situations, at the risk of serious sanctions, eliminating the appeal suspended until the final decision and the preclusive effect of the interlocutory decisions, as is already done in the Employment and Criminal arenas in Brazil, which are undoubtedly more efficient.
At any rate, if the Legislators have failed to achieve the results sought with the passing of Law no. 11.187/05, there are other reforms that can not be ignored for they have incurred positive results, as it shall be discussed in future articles to be published in this newsletter, as sequence to the original article published in the last edition.
Lawyer admitted in Brazil, England and Wales and Portugal. GATT and WTO panelist. Brazilian government ad-hoc representative for the Uruguay Round of the GATT. Post-graduation professor of the law of international trade.