Brazilian Law Opinions

When is an opinion on Brazilian law needed?

The usual situations are these:

• Litigation abroad. A court outside Brazil has to apply Brazilian law, or to understand it, and a party needs to show what that law says.
• Arbitration. The contract is governed by Brazilian law, or one of the issues turns on a Brazilian rule.
• Due diligence. A transaction involves a Brazilian company, asset or public authority, and the foreign lawyers need a statement on a defined legal point.

How foreign law is proved is a matter for the rules of the court or tribunal hearing the case. The instructing lawyers define the format: a letter, a formal opinion, or a statement to be filed as evidence.

Who may give an opinion on Brazilian law?

A lawyer registered with the OAB. Consulting, advising and directing in legal matters are activities reserved to the legal profession (Law 8,906/1994, article 1, II).

Foreign lawyers authorized to work in Brazil act only as consultants on the law of their own country. They may not advise on Brazilian law, even working together with Brazilian lawyers (OAB Provimento 91/2000, article 1, paragraph 1). For that reason, joint work with a foreign firm follows a simple division: each side answers for the law of its own country.

Which subjects does the firm cover?

The opinions follow the areas in which the lawyers of the firm practise:

• constitutional law;
• administrative law and the workings of the federal public administration;
• white-collar criminal law;
• appeals and other proceedings before the Superior Court of Justice (STJ), which gives the final word on federal law, and the Supreme Federal Court (STF), the constitutional court of Brazil;
• recognition of foreign judgments and extradition, which are decided by those two courts.

Questions outside these areas are declined.

What does an opinion contain?

• The question, as put by the instructing lawyers, and the facts assumed.
• The Brazilian sources that apply: the Constitution, statutes and regulations, and court decisions where they matter, each with its official source.
• The answer, with the reasoning that leads to it.
• The limits of the opinion: what was not examined and what depends on facts not yet established.
• The name and the OAB registration number of the lawyer who signs.

In which language is it written?

In English or in Portuguese, as the instructing lawyers prefer. João Pedro Schwab Sampaio and Marisa Alonso work in both languages.

What does an opinion not do?

It does not predict or guarantee the outcome of a case. It covers Brazilian law only. It does not replace the foreign counsel of record, and the lawyers of the firm do not act before courts outside Brazil.