The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (commonly known as “The Hague Evidence Convention”) on 9 April 2014 and it has been in force in Brazil 27 April 2017 (via Decree 9,039/2017).
Soon after the Convention came into force, my firm retained to look after one of first requests sent under the Convention. We worked with our American counterparts to seek various documents relating to a class action filed in the Federal Court for the Southern District of New York.
In relation to the terms of the Convention, Brazil has chosen to:
- exclude the application of 2nd paragraph of article 4th, which provides that a contracting state must accept a letter of request in either English or French, or a translation into one of these languages;
- exclude the whole chapter II, which provides the rules for taking evidence by diplomatic officers, consular agents and commissioners; and
- declare that it will not execute Letters of Request issued for the purposes of pre-trial discovery/disclosure of documents.
The last point is especially important, as it means that the existing restrictions on document production via extensive disclosure/discovery will remain. Therefore, foreign litigants – especially those based in common law jurisdictions – should be careful when assessing the prospects of their cases if the evidence required to prove their claims is located in Brazil (especially when the evidence is held by third parties).
Soon after it came into force, my firm was retained to act on some of the first requests sent to Brazil under the Convention. We worked with our American counterparts to seek various documents relating to a class action filed in the U.S. District Court for the Southern District of New York against one of the largest Brazilian banks. Brazil’s Superior Court of Justice was fairly quick in handing down its decisions and did not interpret the restrictions on pre-trial discovery/disclosure strictly.
Note that Hague Service Convention is also now law in Brazil.
Contact me if you require further information.
Last modified: November 5, 2019