BRAZIL AND THE HAGUE CONVENTION ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS: REVISION PROPOSAL OF ARTICLE 23 RESERVATION
Abstract
In order to facilitate the transmission and execution of letters of request related to the taking of evidence and to make the methods of international legal cooperation more efficient, in 2017 Brazil acceded to the Hague Convention on the taking of Evidence Abroad in Civil and Commercial Matters. It turns out that Brazil has declared that it will not comply with letters of request that have been issued for the purpose of obtaining evidence in pre-trial discovery of documents proceedings, based on Article 23 of the Convention. Therefore, the discovery institute should be examined in order to assess the compatibility of the Brazilian legal system with the procedure. As a hypothesis, it is possible to reconcile the discovery institute with Brazilian law as long as it establishes and determines criteria for the admission of requests for obtaining evidence in a discovery procedure. Consequently, we suggest the review of the reserve by Brazil, or the establishment of court precedents by the Superior Court of Justice, which guidelines will serve not only to execute letters of request, but also to transnational insolvency proceedings, or the analysis of evidence arising from pre-trial discovery proceedings.
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