The Brazilian Procedural law has for long provided a procedural tool for a potential plaintiff to obtain evidence in aid of court proceedings or arbitration, known as early production of evidence (produção antecipada de provas). Until 2015, such procedural tool aimed at anticipating the production of an evidence when there was a risk of losing the opportunity or that the production of such evidence would become impractical or impossible. In other words, urgency was a requirement for having the production granted.
The new Brazilian Code of Civil Procedure enacted in 2015 has broadened the scope of the early production of evidence, authorizing the parties to also seek it in two circumstances where the urgency requirement is not present: (i) when “the evidence to be produced is capable of facilitating a settlement or other appropriate means of conflict resolution” or (ii) “prior knowledge of the facts may justify or avoid the filing of an action” (Article 381, II and III, respectively). Another innovation is that the early production of evidence is now an independent and autonomous lawsuit. Consequently, it does not require the subsequent filing of a second claim in the future.
Following these changes, there was a lot of controversy among courts and scholars on whether a party to an agreement containing an arbitration provision could go to a judicial court seeking an order for early production of evidence when there is no urgency, but one of the other requirements mentioned above are met. This controversy mostly stems from the fact that in the early production of evidence there is no discussion or analysis of the merits of the potential claim to be filed, but only the production of an evidence (e.g, production of a document, taking of a witness deposition, production of an expert report) in anticipation of a dispute, which may or not be filed in the future.
Brazilian scholars have different views on the matter. Some are of the opinion that a party could obtain the evidence before the courts without the need of urgency, even if there is an arbitration clause in the relevant contract. Others sustain that a party could go to court to produce evidence only in specific situations, such as when the early production of evidence will allow the plaintiff to define the exact scope of the potential lawsuit or arbitration. Finally, for others, the commitment of the parties to resolve any and all disputes in arbitration irrevocably attracts the jurisdiction of the Arbitral Tribunal, being urgency the only exception to the jurisdiction of the arbitrators authorizing a party to go to court, based on Article 22-A of the Brazilian Arbitration Act (Law No. 9,307/1996), which authorizes a party to seek a court order for urgent matters before the arbitration is instituted.
There were decisions in state courts authorizing the early production of evidence before the courts in specific situations even when there was no urgency. However, the Superior Court of Justice, the Brazilian highest court for non-constitutional matters, has recently held that, except in case of urgency, any and all claim in connection with the right to produce evidence related to a contract subject to an arbitral clause must be sought through arbitration (Renova Energia S.A. v. Blue Moon Fundo de Investimento Multimercado, Special Appeal no. 2.023.615/SP, Reporting Justice Marco Aurélio Bellizze, 3rd Chamber, judgment session held on 03.14.2023).
Adopting a pro-arbitration approach, the Justices found that, once the parties have agreed to arbitrate a potential dispute, the Arbitral Tribunal has jurisdiction to analyze and solve any and all disputes arising out of or in connection with the contractual relationship, including when the party only seeks to produce a piece of evidence. Therefore, the courts would have jurisdiction only for urgent matters, such as in case the Arbitral Tribunal is not instituted.
Although not binding and still subject to further appeals, this precedent should pave the way how the State Courts and lower judges will decide future similar cases.
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