Download Foreign Law in US Courts

Latin American Law
Procedural Reform
Brazil
Last updated 20 Nov 07
Importance of rule of law
World Bank, "Where is the
Wealth of Nations?: Measuring
Capital for the 21st Century“
(2005)
Mexico
GDP
($10,700)
US GDP
($43,800)
Why is Mexico
GDP so much smaller
(given its asset base)?
US assets
($95,000)
Mexico assets
($27,500)
Assets = machinery, equipment, structures (including infrastructure), urban land.
Mexico
GDP
US
GDP
Answer: Intangible assets
• US: $418,000 per capita
• Mexico: $34,000 per capita
Intangible
assets
Intangible assets
US assets
Mexico assets
Intangible assets = trust among people, efficient judicial system, clear property rights, effective government
Mexico
GDP
US
GDP
Intangible
assets
Rule of law (57%)
Education (36%)
Intangible assets
US assets
Mexico assets
Intangible assets = trust among people, efficient judicial system, clear property rights, effective government
Today’s topics
• US “civil law notaries”
– Who, what, where, why
• Licensed lawyers
• “Authentic acts”
• “Presumed correct”
– Full faith and credit
• Procedural reforms (Brazil)
– Court structure
• Regional, not centralized, appellate courts
• Specialized courts
– Adversarial rights
• Greater party autonomy
• Greater transparency: evidence, trial, decision
– New procedures
• Injunction, habeas data, special appeal
• Strengthened: writ of protection, popular action
Value of knowing other legal systems
•
•
•
•
Model for borrowing
Gain perspective
Discover truths
Impose / power
Civil law not monolithic …
US “civil law notaries”
(imported from Latin America)
FSA 118.10(1)(b). "Civil-law notary" means a person who is a
member in good standing of The Florida Bar, who has
practiced law for at least 5 years, and who is appointed by
the Secretary of State as a civil-law notary.
FSA 118.10(3), (4).A civil-law notary is authorized to issue
authentic acts and thereby may authenticate or certify any
document, transaction, event, condition, or occurrence. The
contents of an authentic act and matters incorporated
therein shall be presumed correct. …
FSA 118.10(1)(a). "Authentic act" means an instrument
executed by a civil-law notary … which includes the
particulars and capacities to act of any transacting parties,
a confirmation of the full text of any necessary instrument,
the signatures … of any transacting parties, the signature
and seal of a civil-law notary ….
Full faith and credit
US Constitution
Article IV
Section 1. Full faith
and credit shall be
given in each state
to the public acts,
records, and judicial
proceedings of
every other state.
Brazil CPC pedigree …
United
States
Germany
Italy
Vatican
Brazil
CPC
•
Pleading
•
Correction
•
Discovery
•
Hearing / judgment
•
Execution
True of false (Brazil)
__ The “trial” phase is a series of informal business-like meetings, with the
judge as gatekeeper, fact-finder, decider
__ The parties have autonomy to mold the scope of the action, introduce facts,
make requests to the judge, but not cross-examine witnesses
__ Judges act in an inquisitorial fashion, choosing what evidence to pursue,
examining witnesses, identifying the relevant legal issues
__ Public trials are the norm, except where privacy interests (such as in family
law cases) limit presence to the parties and their lawyers
__ Trial judges must give an opinion laying out both facts and law; conclusory
“whereas” and “considering” clauses no longer happen
__ The pleading phase requires the judge to accept the complaint, to which the
defendant files an answer, exception, counter-claim
__ Oral testimony has become the norm, with documentary evidence (such as
business contracts) subject to testimonial authentication
__ There is no civil imprisonment for “contempt of court,” which can only lead to
a fine, except in the case of non-payment of child support
__ Appellate courts review both factual and legal issues, and can go beyond
the record below and admit new evidence
__ Appellate courts can affirm, reverse, or modify the trial court’s judgment, but
they cannot remand the case
__ The public civil suit may be filed by the government or private association to
protect the environment or consumers, with recovery going to a fund
True of false (Brazil)
__ The “trial” phase is a series of informal business-like meetings, with the
judge as gatekeeper, fact-finder, decider
__ The parties have autonomy to mold the scope of the action, introduce facts,
make requests to the judge, but not cross-examine witnesses
__ Judges act in an inquisitorial fashion, choosing what evidence to pursue,
examining witnesses, identifying the relevant legal issues
__ Public trials are the norm, except where privacy interests (such as in family
law cases) limit presence to the parties and their lawyers
__ Trial judges must give an opinion laying out both facts and law; conclusory
“whereas” and “considering” clauses no longer happen
__ The pleading phase requires the judge to accept the complaint, to which the
defendant files an answer, exception, counter-claim
__ Oral testimony has become the norm, with documentary evidence (such as
business contracts) subject to testimonial authentication
__ There is no civil imprisonment for “contempt of court,” which can only lead to
a fine, except in the case of non-payment of child support
__ Appellate courts review both factual and legal issues, and can go beyond
the record below and admit new evidence
__ Appellate courts can affirm, reverse, or modify the trial court’s judgment, but
they cannot remand the case
__ The public civil suit may be filed by the government or private association to
protect the environment or consumers, with recovery going to a fund
Complaint
Answer
Counterclaim
1. statement of facts
(inc proofs intend to
introduce, docs)
2. considerations of law
(inc supporting
statutes/authorities)
3. prayer for relief
1. factual allegations
(inc proofs intend to
introduce, docs)
2. legal provisions/
authorities on which
defendant relies
1. only defendant may
file counterclaim
2. must be based on
principal action or
upon defense to the
complaint
***
Judge must OK, may
order be altered
• No amendment
without consent of
defendant
• Judge may only grant
relief sought
***
• 15 days from entry
of proof of service
•
•
***
considered new
action
must be in form of
proper complaint
In Brazil, Article 401 of the CPC states:
“Exclusively oral evidence shall only be
admitted in contracts whose value does
not exceed 10 times the highest minimum
wage in the country at the time the contract
was celebrated.”
David Grassi
(Brazil appears to be holding firmly to its civil law tradition)
Judge Adriana Rizzotto
Judge Henry A. Mentz, Jr
In a recent survey of Brazilian judges, 75%
said that if presented with the choice of
applying a clear legal norm versus promoting
their vision of “social justice” they would
choose the latter.
“Alternative law” is considered Brazil’s most
influential school of thought right now.
Rachael Lewis
Arbitration is not as popular in Latin America
as it is in America or European countries.
The Mercosur Treaty encourages transnational corporations to choose signatory
nations as attractive investment forums.
But arbitral awards against Brazilians are not
being given FFC that the Treaty demands.
Ray Genco
Appellate review …
Appealability
Supreme Court
Supreme Court
writ of
error
Appeals Court
judgment
(inc by Public Ministry)
interlocutory
orders
Ordinary Court
writ of
certiorari
Appeals Court
final
decisions
injunctions,
certified Qs
District Court
A tale of two
Supreme courts
2000 Brazil
2000 US
2002 Brazil
2005 US
Received
105, 307
2,413
160,453
8,521
Decided
86, 138
115
83,097
169
Cases/
Judge/Year
7,830
13
7,554
19
Cases/Judge/ Day
21.5
0.31
20.7
0.46
End