Since 2015, the Brazilian Code of Civil Procedure (“CPC”) allows the production of evidence without the requirement of urgency, autonomously, when it may enable self-composition or the utilization of other conflict resolution methods, or when the prior knowledge of the facts is able to justify or avoid the filing of a lawsuit.
Ever since then, there has been debate as to whether, with the CPC in force, the jurisdiction to process the Early Production of Evidence lies within the Judiciary or the Arbitral Tribunal, in cases where the parties had signed an arbitration clause.
Recently, the Brazilian Superior Court of Justice, in Special Appeal No. 2.023.615-SP, ruled that the arbitrator has jurisdiction to decide upon such measure when the parties choose arbitration as the dispute resolution method. Due to such decision, case law tends to head in the direction that, without due urgency, evidence should be produced before the arbitral institutions.
To improve practice in arbitral proceedings under its responsibility, the Arbitration and Mediation Center of the American Chamber of Commerce (“CAM-AMCHAM”), on August 7 of the current year, published Resolution No. 3/2023 (“Resolution”), which regulates arbitral proceedings aiming the early production of evidence in cases without urgency.
In short, the Resolution states that the party may use such measure when “the evidence to be produce may enable self-composition or the utilization of other conflict resolution methods and/or the prior knowledge of the facts is able to justify or avoid the filing of a (main) lawsuit” (freely translated), in order to produce documentary, witness or expert evidence in advance.
In such cases, the arbitrator will decide how the evidence is to be produced, including the production of an expert’s report, where the expert is appointed by the arbitrator or the parties, as the participation of technical assistants.
Contrary to what would happen in the Judiciary, the arbitrator’s decision granting the production of evidence will be binding upon the parties and any future main action.
It is essential that this type of procedure is conducted by lawyers who are used to its peculiarities so that the interested party can use such measure safely and effectively. Both case law and arbitration practice tend to accommodate the situation in such a way as to define the practice under arbitration.
Co-authors: Julia Guimarães Rossetto, Thiago Andere Martins and José Victor Palazzi Zakia
