Cooperação jurídica internacional: estudo sobre a compatibilidade do procedimento de pre-trial discovery do common law com o direito brasileiro

Abstract

In order to facilitate the transmission and execution of letters of request related to the taking of evidence and to make the methods of international legal cooperation more efficient, Brazil acceded, in 2017, to the Hague Convention on the taking of Evidence Abroad in Civil and Commercial Matters. It turns out that Brazil, like other countries, has declared that it will not comply with letters of request issued with the purpose of obtaining evidence in pre-trial discovery of documents procedure, based on article 23 of the Convention. On that account, this thesis examines the interactions between Brazilian law and discovery, in order to assess its compatibility with the procedure. To this end, the author initially presents some preliminary concepts regarding international legal cooperation and addresses the treatment of inter-individual relationships involving foreign elements throughout history. Furthermore, the author discusses comparative law, including a synthetic overview of the origins of common law, as well as specific aspects of English law and United States law. The most relevant characteristics of civil law are also dissected, especially the points that allow comparison with common law. In the second part of the thesis, the author investigates discovery, addressing its concept, scope, limits and mechanisms, as well as admissible defenses and expenses for its use. The differences between the discovery and the fishing expedition are presented at this point. In the following chapter, the author examines the main provisions of the aforementioned Hague Convention and discusses the declaration of article 23, proposing a revision of the text. Finally, the thesis examines the Brazilian pre-trial production of evidence procedure, drawing parallels in relation to discovery in the United States, as well as the position of the Superior Court of Justice when dealing with letters of request arising from these procedures. At this point, the author concludes that Brazil has not only incorporated procedural mechanisms inspired by discovery, but also, in light of the recent legal reforms implemented, it has adopted a very liberal position in relation to the production of evidence in the civil sphere.