ENFORCEMENT OF AWARDS IN BRAZIL (Part I of VII)

Brazil is the largest country in South America,  very similar in the size to the continental United States, Portuguese is its native language. The first Portuguese settlers arrived in the north east portion of Brazil, in the year 1500 and, over time, they imported 5 times more Africans salves than did the English in America.

The Tordesilles Treaty of 1494 split the southern part of the new world into one part Spanish and one part Portuguese. This Treaty, between Spain and Portugal, came about due to a decision by Pope Alexander VI, a Spaniard, that gave most of the land to the Spanish. The Treaty, one of the first truly international agreements that addressed globalization, moved the line of influence to the west leaving only Brazil for the Portuguese. From the 19th century onward, Brazil opened its borders to immigration and over 5 million people migrated to Brazil from 60 countries, mostly Portugal, Italy, Spain, Germany, Japan and the Middle-East (1). With this interracial mixture, Brazil has become today a cauldron of a multi-racial mosaic of 200 million people.

Brazilian law is based on Roman Law, as opposed to the Common Law system utilized in England and the United States. Traditionally, Brazil felt that a decision by an appointed judge was the only modality to decide conflicts between individuals and corporate entities, as opposed to arbitration outside of the judicial system. There is a mentality in Brazil that the State has the obligation to provide equality and, therefore, conflicts should only be decided by the judiciary, which is an arm of the government. Due to this view, the court system is completely overwhelmed with controversies that could be solved quickly and inexpensively in arbitration. Hence, even the highest courts end up having an enormous work load consisting mostly of mundane issues that have nothing to do with setting overall policy or protecting fundamental rights. Consequently, lawsuits of all types drag on for years, taking the time of lawyers, judges and all of the administrative personnel connected to the court system.

To exacerbate the problem, there are fewer judges in Brazil when compared to European countries. For example, Brazil has only 2.88 judges per 100,000 inhabitants, while France and Germany have respectively a ratio of 8.45 and 4.46 (2). Another issue is how much time judges can devote to different procedures that impact judicial performance and efficiency. A study has shown that a Brazilian judge spends 65% of his/her time doing tasks that do not involve adjudication of cases (3). Looking solely at these numbers, the answer to the problem might appear to be the simple appointment of many more Brazilian judges. However, many experts feel this is not the correct answer. For example, Jose Renato Nalini, a Justice on the Tribunal of Justice of Sao Paulo, in an interview with one of the biggest Brazilian newspaper “O ESTADO DE SÃO PAULO” invites society to think about this theme by asking: “Are we missing judges or ideas?” He does not believe that the effective solution for the Brazilian Judiciary can be accomplished by multiplying positions (4). According to him, the reason why well prepared, erudite and brilliant judges are part of such slow and inefficient system is because they are very attached to orthodox formalism and processes which are completely disconnected from reality. Brazilian Judiciary System is badly administered by good judges who know nothing about management (5).

No one is well served by waiting 10, 15 or 20 years for a final decision that could have been reached in a matter of months. Even after a judgment has been made, the parties still have infinite ways to appeal, making the process last forever. The cost of the lawyers, judges and administrators along with the court fees that are required often far outweigh the amount in controversy in the litigation. The fact is that the judiciary is in “crisis” (6) and is overwhelmed with the massive number of cases they get every day. The Council for National Justice, an entity that supervises courts in Brazil, has pointed out that from a current case load of 80 million. Only 25 million of these cases were adjudicated in 2008 by the courts (7). One of the main problem is the enforcement of court orders. Millions of cases are completely at a stand still because of difficulties in locating the defendant, the defendant’s assets or just because of in inefficiency of the enforcement system which prevents the order from being carried out.  The judge is involved in every tiny aspect of the litigation and this makes the process almost unworkable.

(1) Venancio, Renato Pinto: Brasil : 500 anos de povoamento /IBGE, 3o. capítulo "Presença portuguesa: de colonizadores a imigrantes"

(http://www.ibge.gov.br/brasil500/index2.html)

(2) Dakolias, Maria; Court Performance around the world- A comparative perspective, World Bank Technical Paper, Volume 430; 1999http://siteresources.worldbank.org/BRAZILINPOREXTN/Resources/3817166-1185895645304/4044168-1186404259243/14pub_br176.PDF

(3) Buscaglia, Eduardo & Dakolias, Maria; Comparative international Study of Court Performance Indicators: A Descriptive and analytical Account. For a study assessing judicial resource-allocation models, see How Many Judges Do We Need Anyway? NAT'L