Foreign Law in Brazil: 3 Clauses That Actually Work
Your governing law clause may have no engine
Por Lucas Ribeiro Cavalcante — OAB/CE 44.673
Foreign Law in Brazil: 3 Clauses That Actually Work
Your governing law clause may have no engine
Por Lucas Ribeiro Cavalcante — OAB/CE 44.673
Two years after signing, a judge in São Paulo reads your Delaware law clause, sets it aside, and applies the Brazilian Civil Code instead.
“
Nobody tricked you. The clause simply had no legal engine behind it.
Brazil is Civil Law. Its conflict of laws statute dates from 1942 and party autonomy is not written into it. State courts follow a rigid rule instead.
✘ Mito
Myth: US and UK templates travel anywhere
✓ Verdade
Truth: Brazilian courts are not bound by your choice
Valid arbitration clause
Exclusive foreign forum
Contract fully formed abroad
The Arbitration Act, Law 9.307/1996, expressly lets parties choose the rules of law the arbitrators apply. That permission does not exist for court litigation.
Will a Brazilian court respect a foreign forum clause?
Yes, under Article 25 of the 2015 Code, but only if the defendant raises the clause in time.
Dica
Fix it at the drafting stage, not after the dispute. A supply deal signed in Rio under Delaware law, with no arbitration and no foreign forum, is paper only.
Protect the law you chose before a dispute decides it for you.