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Challenges in the Brazilian Legal System and Portuguese Language Translation

Jun 19, 2008
Brazil, with its vast land area rich in natural resources, a vibrant and enterprising people, and the advent of modern communication and transportation, has recently come to be center stage in world economic development. Keeping pace with the new demand, the Brazilian people have recently, in the past 20-30 years, made significant advances toward a judicial system that allows fair participation for all of its citizens as well as foreign investors

Background on the Brazilian Legal System

Emerging from a repressive military dictatorship, a National Assembly of 559 members charted the new Constitution of Brazil of 1988. The "Carta" as it is often called, is a complex, 150 page document with 245 articles and 73 transitional provisions that makes not only fundamental democratic provisions, but also specific provisions on more than 400 subjects such as environmental protection, labor relations, children's rights, science and technology, hunting, fishing, eviction laws, and much more. The system of jurisprudence set up to support the Constitution is equally complex. There is a State judicial branch and a Federal branch based on civil law statutes with parallel courts for labor law, electoral law and military law. Brazil's new system is similar to the civil law systems of Western European countries, especially France. The increased complexity of the Brazilian system comes in the addition of an almost endless chain of possible appeals and the fact that many cases become constitutional issues due to the specificity of the constitution. In addition, the highest Brazilian court, the Supreme Federal Court, in Portuguese, the Supremo Tribunal Federal (STF), must adjudicate on every case that comes before it making its workload enormous.

After 1988, more reform was needed to prevent gridlock due to overload of the system, which fortunately could be brought about by legal action through the new Constitution. One major change came in the Amendment to the Constitution 45 passed in 2004 that provided a mechanism similar to "stare decisis" or decisions based on the resolution of past cases. A second major change has been the approbation and validation in the Brazilian code of the use of arbitration as a means to settle disputes. Brazil's supreme court has affirmed the constitutionality of the nation's 1996 arbitration law, and in another milestone development the Federal Republic of Brazil acceded in 2002 to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Since 1995, other amendments to the 1988 Federal Constitution have been passed into law opening formerly closed sections of the Brazilian economy such as oil and gas, mining, energy and telecommunications to foreign direct investment (FDI), and Brazil has maintained its position of one of the world's most favored destinations for FDI worldwide in recent years.

Current Situation

The process of Brazilian internationalization is still in its infancy, however. Foreign investors in Brazil do not yet benefit from the framework set by the 1965 Convention on the Settlement of Disputes between States and Nationals of Other States (ICSID Convention), nor do they benefit from the protection of bilateral investment treaties (BITs), since Brazil has not yet ratified any of the 14 BITs it entered into with different countries in the 1990s.

Thus with the Brazilian legal system as complex as it is and with many new and ongoing developments in arbitration and international relations as well as constitutional issues, the Brazilian legal translator must be trained and updated to remain current of all forms and practices.

Legal Translations in Brazil

The field of Brazilian legal translation has become an important field given the increased participation of Brazil in the world economy. Whereas formerly most Brazilian legal cases were internal and conducted comfortably in Portuguese, today foreign entities doing business in Brazil or Brazilian firms involved in other parts of the world present their cases in international courts and courts of arbitration in a variety of languages, and often these cases must be revalidated back in Brazil. Legal translations from and into Portuguese must be done with the utmost accuracy to assure they will not be rejected in court due to format, meaning or details.

Considerations when choosing a Portuguese legal translator

When translating into Brazilian Portuguese, the translator must be a native Brazilian speaker as well as be proficient in the source language. While editors may be called upon to polish the final text in the target language, the Brazilian translator must capture the whole meaning and innuendo of the original text. On the other hand, we recommend that all documents translated into/from Portuguese for use in international or Brazilian courts be edited and proof-read by an editor of the original language working in conjunct with the Portuguese to help corroborate the meaning. The Portugues Translator must also be updated in the latest developments in Brazilian law and arbitration.
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