Brazil is a multi-ethnic society with large segments of the population made up of descendants of native Brazilians; black people brought in from Angola and Nigeria in Africa originally as slaves; Europeans from Portugal, Italy, Germany, Spain and Poland; Japanese, Chinese and Koreans. There are now in Brazil more descendants of native peoples in Brazil than in any American country; there are more black people than in any African country, other than Nigeria; and there are about 37 million of Italians in the country. The city of São Paulo alone has more Italians than the combined populations of Rome and Milan. This diversity and the fact that there is a certain geographical concentration of ethnic groups in certain areas of the country´s vast territory, makes democracy a very difficult exercise indeed. In addition, the cultural clashes are frequently brought before the Judiciary and Brazil became, after re-democratisation in 1986, a country in which litigation abounds.
The Brazilian legal system has its roots in Roman law, with strong influences from various European sources, such as Portuguese, French, Italian and German legislation. Some elements of United States of America´s influence can be also found in the areas of competition law, securities, environmental law and taxation. Founded on the time hardened tradition of the native Brazilians, who were the subjects of many injustices, the population will resist unjust, unfair of disparate laws. Brazil´s constitution of 1988 divides the Judiciary into ordinary and specialised courts. As Brazil is a federation, the ordinary court system is established at state and federal levels. The ordinary courts comprise civil and criminal benches and the specialised courts deal with labour, military and electoral cases. Appeals may be filed to the courts of second and third instances. At the top of the pyramid, there is the constitutional court, the Federal Supreme Tribunal. The Superior Tribunal of Justice is the court of last resort for non-constitutional matters. All last resort tribunals are based in Brazil´s capital, Brasília.
It is estimated that, in 2001, more than 6 million cases were filed in the Brazilian courts. Of such, approximately 2 million cases pertain to labour matters; 1 million to criminal matters; 1 million to tax cases; 1.2 million to small claims matters; and the remainder to civil and commercial litigation. The 11 Justices Supreme Federal Court decides approximately 30 cases per working day. The 33 members´ Superior Tribunal of Justice decides circa 34 thousand cases per year with published opinions. In spite of such numbers, Brazil´s Judiciary has only about 13 thousand first instance judges for a population of 170 million people. Brazil´s judges are all civil servants who access the profession by means of public examinations. Brazilian judges benefit from a continuing legal education programme and enjoy a good reputation for independence and honesty. At present, cases take between 3 to 5 years before conclusion. Discovery is extensive. Litigation is often extensive. The losing party will have to pay full court fees and legal costs from 10 to 20% of the value of the case. Because the Brazilian Judiciary is perceived as reliable, resort to commercial arbitration is rare, but possible.
The federal circuit of the Brazilian Judiciary has had ISO 9002 certification for approximately two years now and is possibly the only one in the world with such credential. Petitions in the federal circuit can be filed electronically from anywhere in the country or abroad; the follow-up of procedures can also be effected via computer; files are identified with bar codes. Tax cases can be tried entirely virtually, unless one of the parties demands a paper file. This has become necessary as each month there are 80 thousand new tax executions, 30 thousand in the State of São Paulo alone. The state circuit has mobiles courts, buses with satellite links, a judge, a clerk and a driver, to address small claims´ courts. In some states, shopping centres will have small claims´ courts, frequently used by consumers.
Brazil has about 600 thousand lawyers, of whom half are believed to be active as such. The traditional Brazilian lawyer is a single practitioner, but for some 30 years now there has been a growing tendency for lawyers to organise themselves in law firms. There are more than 1 thousand law firms in the country, most of them are small or medium sized. The larger law firms, no more than 15, will have upwards of 70 lawyers, with some reaching 200 professionals. A few law firms have become international and have offices in other countries. The firm of which I am the senior partner has 13 offices in 6 countries, including one in Shanghai, and has had a commercial presence abroad for more than 20 years.
Lastly, it is important to note that Brazil offers a reliable, efficient legal system and law professions to assist businessmen in trade, in establishing a commercial presence or in setting a venture in that attractive part of the world.
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.