New Law Brings Pragmatism to Brazilian Judicial and Administrative Decisions

Key Points

• Law 13,655/2018 (the “Law”) came into force on 26 April 2018. The Law introduces important changes to the decision-making process at both administrative and judicial levels.
• Brazilian court and administrative decisions have traditionally followed a dogmatic approach – decisions were based on legal rules with little regard to practical consequences. Now matters “will not be decided based on abstract legal values without taking into account the practical consequences of the decisions”.
• As part of the analysis, decision-makers will need to “point out the conditions so that compliance takes place proportionally and without harm to general interests”.
• To “eliminate non-compliance, legal uncertainty or contentious situations in the application of public law” a settlement may be reached with the relevant stakeholders. This includes disputes relating to the issuing of licences.
• Decisions may impose compensation for “undue benefits or abnormal or unjust damages” that flow from the decision or the “conduct of those involved”.
• A transitional period for compliance will be provided for decisions that have a widespread effect.

Background

In Brazil’s legal tradition, the focus has always been on finding the applicable rule and its correct interpretation from a dogmatic standpoint: what is right is right, regardless of its practical effects.

Courts, for instance, frequently grant orders to sick individuals seeking have the public health system pay for extremely expensive medical treatments with negligible chances of success. The consequence of these court decisions is that Brazil’s struggling universal health care system becomes even further strained.

On 26 April 2018, Law 13,655/2018 was officially published. This Law amends the Law of Introduction of the Brazilian Law Rules introducing an obligation on judicial and administrative decision-makers to take into account the practical consequences of their decisions. The Bill was inspired by studies carried out by professors Carlos Ari Sundfeld and Floriano de Azevedo Marques, from Brazil’s Getulio Vargas Foundation Law School, who have been at the forefront of the modernisation of Brazilian Administrative Law for some years. As Professor Sundfeld put it in a recent article, the “bet” with the new Law is that “balance, moderation and innovation may motivate [Brazil’s] institutional development”.

The Bill’s sponsor in the Senate (Senator Antonio Anastasia) and his supporters took a clever approach by using the Law of Introduction of the Brazilian Law Rules to bring about the changes. This avoided the politicisation of the issues and the influence of the various lobby groups that might have become involved in the lawmaking process.

What to expect?

It is difficult to foresee how quickly and the extent to which the changes will affect the legal and administrative decision-making process. Given the speed with which the Bill was introduced and past, it is expected that many judges, legal practitioners and other decision-makers in the Brazilian legal structure are likely to struggle with dealing with the legal concepts and practical application of the new rules.

Notwithstanding the initial teething problems, the changes – when appropriately implemented – are a major step forward for Brazil’s legal system.

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Last modified: May 16, 2018