Yes, it does.

Yes. The Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”) has been in force in Brazil since April 27, 2017 (by means of Decree 9,039/2017).

The Hague Evidence Convention is in force in Brazil with the following particularities: (i) all letters rogatory sent to Brazil must be accompanied by a translation into Portuguese (declaration in relation to Article 4, paragraph 2, pursuant to Article 33); (ii) judicial authorities of a requesting state may assist the execution of letters rogatory in Brazil if authorization has been granted by the executing authority (declaration in relation to Article 8); (iii) taking of evidence by diplomatic representatives, consular agents or commissioners is not allowed (reservation to Chapter II, pursuant to its Article 33); and (iv) Brazil will not comply with letters rogatory that have been issued for the purpose of obtaining what is known, in common law countries, as “pre-trial discovery of documents” (declaration in relation to Article 23).

In terms of other multilateral agreements, Brazil is also a signatory to (among others) (i) the Inter-American Convention on Letters Rogatory (Panama /1975) and Additional Protocol (Montevideo/1979), in force in Brazil by means of Decrees 1,899/1996 and 2,022/1996, respectively, as well as (ii) the Protocol on Jurisdictional Cooperation and Assistance in Civil, Commercial, Labor and Administrative Matters of MERCOSUR (Las Leñas/1992), in force by means of Decree 2,067/1996.

The processing of the request for international legal cooperation to obtain evidence abroad may be based on a treaty in force between Brazil and the requested/requesting State, or in its absence, on the basis of reciprocity. If a treaty exists, the requirements listed therein must be followed for the purposes of such requests. Some treaties provide for specific forms that must be completed by the requesting State -- in the absence of a specific form, a letter rogatory is used.

The relevant local rules that must be complied with regarding letters rogatory are found in the Brazilian Civil Procedure Code (“CPC” - Law 13,105/2015) and in the Internal Rules of the Brazilian Superior Court of Justice (“IRSCJ”). Article 27, II of the CPC establishes that “International legal cooperation shall comprise [...] the gathering of evidence and information”. In its turn, the requirements for letters rogatory are established in Article 260 of the CPC, which are: (i) the naming of the issuing judge and the judge who is to execute the act; (ii) the entire content of the motion, of the judicial order and of the power of attorney granted to the lawyer; (iii) the mention of the procedural act that establishes its purpose; (iv) the conclusion with the signature of a judge.

The requirements and process for granting exequatur to letters rogatory are contained in (i) Articles 960 to 965 of the CPC; and (ii) Articles 216-O to 216-X of the IRSCJ. In sum, letters rogatory must (a) be issued by an authority with jurisdiction; (b) be preceded by suitable service of process; (c) be effective in the country where it was issued; (d) not violate a res judicata decision in Brazil; (e) be accompanied by an official translation, unless there is waiver provided for in a treaty; (f) not manifestly violate public policy. Exequatur will not be granted where a letter rogatory is found to be contrary to national sovereignty, human dignity and/or public policy (Article 216-P of the IRSCJ).

Yes. In Brazil, the Ministry of Justice (through the Department for the Recovery of Assets and International Legal Cooperation) acts as the central authority for purposes of the Hague Evidence Convention and, as such, is responsible for processing requests for legal assistance based on the convention.

In sum, the letter rogatory from the Central Authority of the requesting state is received by the Brazilian Ministry of Justice, which analyzes the documentation to verify whether all the formal requirements have been met.

If the requirements are not met, the Ministry of Justice will forward the information on the inadequacy of the letter rogatory to the Central Authority of the requesting state, so that it can complement the request with the necessary documentation.

On the other hand, if the requirements are met, the letter rogatory will be submitted to the Superior Court of Justice for the granting of exequatur, based on the rules set out above. If exequatur is granted, the Superior Court of Justice will forward the letter rogatory to the competent federal trial court for enforcement.

As mentioned above, Brazil approved the Hague Evidence Convention with reservations and only accepts that evidence is produced in its territory by the Judiciary.

There are no restrictions as to the types of information that can be sought. The most common requests are the ones for the obtention of documents, expert evidence and witness testimony.

Please note, however, that such acts must be undertaken in Brazil exclusively before Brazilian judicial authorities.

On the other hand, Brazil will not comply with letters rogatory that have been issued for the purposes of obtaining “pre-trial discovery/disclosure of documents”.

As a rule, the party who raises the existence of privilege will have the burden of proving it. In this sense, Article 404 of the CPC establishes the grounds based on which a person (be it a party or a third party) may be exempted from disclosing documents in court (such as if the document disclosure entails the disclosure of facts regarding which, by reason of status or profession, he/she must maintain confidentially). Additionally, under Article 402 of the CPC, if a third party refuses to comply with the obligation to disclose or denies having possession of a document, the judge shall schedule a special hearing to take the third party’s testimony, as well as that of the parties and, if necessary, of witnesses, after which judgment shall be rendered on this issue of document exhibition.

Regarding privilege under Brazilian law, Law No. 8.906/1994 (the Brazilian Bar Association Statute – the “BBA Statute”) and the Brazilian Bar Association Code of Ethics and Discipline (the “BBA Code”) prevent lawyers from disclosing privileged documents before courts without client’s consent. The lawyer’s duty of professional secrecy does not depend on the client’s instruction. In this regard, among other relevant provisions, Article 36 of the BBA Code provides that “professional secrecy is a matter of public policy, regardless of the client's request of any reservation”. Moreover, the BBA Statute provides that violation of professional secrecy without good reason is a disciplinary infraction (Article 34, VII). The protection against self-incrimination is also applied extensively in Brazil. The right not to self-incriminate corresponds to a fundamental human right under Article 5, LXIII, of the Brazilian Constitution.

Other relevant provisions of Brazilian law follow this same rationale, e.g., Article 388 of the CPC provides the grounds based on which a party may not be obliged to testify (such as regarding facts that he/she is obliged by virtue of his/her office or profession to keep confidential.

Under Article 963, III, of the CPC, one of the mandatory requirements for conceding exequatur to a letter rogatory is the showing that the order is effective in the requesting State. Additionally, under Article 216-Q of the IRSCJ, in the process of granting exequatur before the Superior Court of Justice, the opposing party’s defense can only be based on the authenticity of the documents, the intelligence of the decision and the observance of the requirements set out in the IRSCJ.

As an initial remark, the taking of depositions (and production of other evidence) for use in foreign courts is an act that may be undertaken in Brazil only by Brazilian judicial authorities (i.e., they may not be taken as an out-of-court oral testimony by lawyers, as is commonly done in the U.S.). In domestic proceedings in Brazil, there is no pre-trial deposition -- witness testimony is exclusively produced at a hearing held in the evidentiary phase by live testimony.

In any event, the use of videoconference has become a common practice in Brazilian courts over the past years, particularly since the creation of the electronic judicial procedure by means of Law 11,419/2006. The National Council of Justice’s Resolution 105/2010 sets out rules regarding the documentation of hearings held by videoconference. The CPC also provides for the use of videoconferences (see, e.g., Articles 236, § 3; 385, § 3; 453, § 1; 461,
§ 2 and 937, § 4 of the CPC).

Thus, if the judicial authority of the requesting state requests the use of video links, the Brazilian Central Authority will ask the Brazilian judicial authority to evaluate such request.

There are no other limitations apart from the rules specified above.

There are no rules expressly prohibiting citizens residing in Brazil from voluntarily giving evidence in a foreign proceeding. However, we reiterate that, in Brazil, the production of evidence for use in foreign courts can only be undertaken by judicial authorities (i.e., they may not be taken as an out-of-court). Therefore, since the involvement of the Brazilian Judiciary system is required, witness testimony is generally obtained by means of a letter rogatory.

If the foreign proceeding is an arbitration, there is some debate as to whether the request for production of evidence in Brazil must be done by means of a letter rogatory (Article 960, § 1 of the CPC) or an arbitral letter issued by the foreign arbitral tribunal (“carta arbitral”) to Brazilian courts (Article 22-C of the Brazilian Arbitration Act: “The arbitrator or the arbitral tribunal may issue an arbitral letter for the national court to practice or determine the performance, in the area of its territorial competence, of an act requested by the arbitrator”).

While for letters rogatory, the first exequatur of the arbitral tribunal’s order must be granted by the Superior Court of Justice -- and then enforcement must be carried out before the competent federal court --, the same would not apply to arbitral letters (which are usually used in the context of domestic proceedings). If an arbitral letter is used, enforcement of the arbitral tribunal’s order would be sought before the competent state court in Brazil. It should be noted, however, that the possibility of resorting to the special/expedited proceeding of arbitral letters in this international context is still the focus of heated debates among commentators and authorities.

In both scenarios, the corresponding letters shall comply with the requirements set out in Article 260 of the CPC and be accompanied by the arbitration agreement, the proof of appointment of the arbitral tribunal and the arbitrators’ acceptance of the function (Article 260, § 3 of the CPC).

Finally, the proceeding for the enforcement of the arbitral letter may be confidential in cases in which the arbitration agreement contains a confidentiality provision, under Articles 189, IV of the CPC and 22-C, sole paragraph of the Brazilian Arbitration Act.