How the Courts and Arbitral Institutions Are Shaping the Proceedings
THE AUTHORS:
Rodrigo Garcia da Fonseca, Partner at Fonseca e Salles Lima Advogados Associados & President of CAM-CCBC
Bruno Sant’Anna Fucci, Partner at Fonseca e Salles Lima Advogados Associados
Introduction: ‘Early Production of Evidence’ Without Urgency in Brazil
The Brazilian Code of Civil Procedure (Law No. 13.105/2015) provides, in its Articles 381 to 383, for the so-called ‘early production of evidence’ (‘produção antecipada de prova’). As the name suggests, this is a special jurisdictional procedure aimed at overcoming the opposing party’s resistance and producing certain evidence. It allows for the production of evidence (documentary, testimonial, or expert) without urgency, based on the recognition of evidence as an autonomous right, deserving protection regardless of the existence of a ‘main case’. The way the evidence is to be produced, however, does not differ from the way evidence is ordinarily produced in any other case in Brazil. Therefore, it bears no resemblance to American-style ‘discovery’ in any way.
As Brazilian law moves away from the traditional view that evidence serves solely to assist the decision-maker (judge or arbitrator) in forming his/her own conviction about the facts of a dispute, it becomes increasingly clear that evidence can play a crucial role, even beforehand, in informing the parties themselves. Under this perspective, the production of certain evidence by a party serves as an end in itself (i.e., a form of relief), allowing the party ultimately to assess whether to initiate legal proceedings, contest a claim, or partially or fully waive its rights.
Since the enactment of the Brazilian Code of Civil Procedure in 2015, there has been some degree of uncertainty as to which forum would have jurisdiction to handle the early production of evidence when the underlying contract contains an arbitration clause.
On one hand, by designating arbitration as the method for resolving a specific dispute, an arbitration clause inherently removes the jurisdiction of state courts over that matter. Given that the Brazilian Arbitration Act (Law No. 9.307/1996) grants state courts provisional jurisdiction under Article 22-A to decide on ‘interim or emergency measures before arbitration is initiated’, a question arose as to whether early production of evidence would fall within the scope of such measures, thereby requiring judicial proceedings. Alternatively, if early production of evidence does not meet the urgency requirement (understood as the risk of losing access to the evidence) and is not of a precautionary nature (aimed at preserving the effectiveness of a main claim), Article 22-A of the Brazilian Arbitration Act would not apply, transferring jurisdiction over the procedure to the arbitral tribunal.
An anticipatory urgent production of evidence, such as an inspection at a construction site before it is changed, or the testimony of a key witness who might be severely ill, has always been understood as being covered by Article 22-A. However, if there is no urgency in producing evidence, there is doubt as to which authority would have jurisdiction to handle the matter.
Today, this issue has been settled in Brazilian law, with arbitration prevailing as the appropriate forum for such legal instrument.
From Uncertainty to Clarity: The STJ Ruling and Its Catalytic Effect
At least since 2023, when it was directly called upon to address the matter, the Superior Court of Justice (“STJ”) – Brazil’s highest court for civil law and civil procedure legislation – has consolidated the position that in the absence of urgency, it is for the arbitrator to process and adjudicate requests for the autonomous production of evidence, as a regular and direct effect of the arbitration clause.
Special Appeal No. 2.023.615/SP, reported by Justice Marco Aurélio Bellizze, involved a case in which the claimants sought to compel the respondent company to disclose documents and undergo an expert examination to clarify the potentially unlawful conduct of its directors and controlling shareholders.
Although the evidence sought at the time could indeed give rise to a future civil liability claim (before an arbitral tribunal), it was equally possible that the findings would lead to a decision not to file any claim or even give rise to a settlement between the parties. This made it clear that the intended relief (i.e., the production of evidence per se) had a satisfactory nature, thereby removing any precautionary element. It is important to highlight that no argument was made regarding a potential risk that the evidence might be impossible to produce later, thus indicating the absence of urgency.
The proceedings were initiated by the claimants before the state courts, and the file reached the STJ some years later. The STJ reversed the lower courts’ ruling, annulling all judicial acts performed in the case and referring the matter to arbitration. The STJ emphasized that ‘the existence of an arbitration agreement inexorably confers jurisdiction to the arbitral tribunal to hear requests for early production of evidence’, and that urgency constitutes ‘the sole legal exception allowing provisional state court intervention under Article 22-A of the Arbitration Act’. Consequently, any other request – including the autonomous production of evidence – must necessarily be submitted to arbitration, respecting the parties’ contractual intent as embodied in the arbitration clause.
Beyond its immediate legal impact, this landmark STJ precedent served as a catalyst, prompting some of Brazil’s leading arbitral institutions to explicitly regulate the production of evidence in their arbitration rules. The trend is timely, considering that, despite the jurisdiction of arbitral tribunals to handle autonomous production of evidence, such proceedings differ significantly from standard commercial arbitrations and thus justifies a tailor-made procedural framework.
Bringing Order to the Production of Evidence: The Institutional Response
Up to this moment, in the wake of the STJ’s precedent, three of Brazil’s most prominent arbitral institutions – the Chamber of Arbitration and Mediation of the American Chamber of Commerce (“AMCHAM”), the Chamber of Conciliation, Mediation, and Arbitration (“CIESP/FIESP”), and, more recently, the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (“CAM-CCBC”) – have introduced specific regulations establishing a more expedited procedure for the autonomous evidence production provided for in the Brazilian Code of Civil Procedure.
All three sets of rules incorporate the guidelines set by the STJ’s decision and share a common goal: simplification. Recognizing that this form of jurisdictional measure is inherently less complex, these institutions have sought to streamline the process, making it faster and more cost-effective.
The rules of AMCHAM (Administrative Resolution No. 3/2023) opted to equate the procedure for autonomous evidence production to that of ‘emergency arbitration’, referring such requests to the existing rules applicable to urgent cases (Article 1.1). This means that, although it is not contingent on urgency, the early production of evidence under AMCHAM rules does not follow the domestic standard three-member panel, adopting, instead, a sole arbitrator appointed by the institution to conduct the case under the rules governing emergency arbitration (Article 21 of Amcham’s 2023 Arbitration Rules).
By contrast, both the CIESP/FIESP and the CAM-CCBC rules do not refer evidence production requests to their respective emergency arbitration regulations. Instead, they set up the figure of the ‘evidence arbitrator’ (‘árbitro de prova’), a sole arbitrator, to oversee the proceedings.
In the case of CIESP/FIESP, its Regulation on Autonomous Evidence Production (Resolution No. 14/2024) clarifies that the new rules constitute ‘only an additional means of submitting an Early Production of Evidence request, with arbitrators responsible for assessing its relevance’ (Recital 4). Since such requests could already be processed under CIESP/FIESP’s Arbitration Rules (Recital 3), this new regulation introduces nothing more than an optional procedure, which will be adopted ‘when any party expresses interest’ (Article 1.3).
As for CAM-CCBC, Brazil’s leading arbitral institution in terms of caseload, its recent Regulation on Early Production of Evidence (Supplementary Rule No. 06/2025) applies with immediate effect to new requests – since its enactment on January 6, 2025, subject to opt-out by the parties (Article 1(d)) – and whenever in presence of the already examined objective criteria established by the STJ precedent (Article 1(a) to (c)).
The regulation further clarifies the role of the evidence arbitrator, explicitly cautioning against fishing expeditions. In this regard, the evidence arbitrator is expressly tasked with ‘assessing the request under the substantive law applicable to the dispute, considering, among other factors, the plausibility of the requesting party’s right, confidentiality obligations, professional secrecy, and trade secrets’ (Article 9, sole paragraph).
Moreover, all three regulations expressly prevent the ‘evidence’ or ‘sole arbitrator’ from serving in any subsequent arbitration based on the evidence produced in the autonomous procedure, disallowing him/her to issue findings or assess the probative value of the evidence. Thus, if a subsequent arbitration is initiated, it will follow the institution’s standard procedural rules, and the evidence arbitrator will be barred from participating. In essence, the evidence arbitrator is prohibited from adjudicating any future arbitration arising from the evidence they helped produce, as well as from issuing any opinion or judgment on the occurrence or non-occurrence of proven facts and their legal consequences.
A Clearer Path Forward – Legal Certainty in the Early Production of Evidence
Whether to clarify legally relevant facts in the legitimate interest of the parties or to serve the systemic purpose of preventing disputes, the autonomous early production of evidence is a valuable tool in the Brazilian legal framework. In both judicial and arbitral settings, it is essential that this mechanism has clearly defined rules and remains easily accessible to users.
In this regard, there is no doubt that both the STJ, by eliminating the previous uncertainty regarding the proper jurisdiction for handling such requests, and Brazil’s leading arbitral institutions, by issuing tailored regulations responsive to stakeholders’ needs, have taken the right steps. Ultimately, these developments enhance legal certainty, further solidifying this important procedural mechanism.
* The quoted excerpts from the STJ precedent and the regulations of arbitral institutions have been rendered as free translations from Portuguese
ABOUT THE AUTHORS
Rodrigo Garcia da Fonseca is admitted to practice in Brazil and is a founding partner of the law firm Fonseca e Salles Lima Advogados Associados, in Rio de Janeiro. He is the President of the Center of Arbitration and Mediation of the Brazil-Canada Chamber of Commerce (CAM-CCBC), based in São Paulo, since 2023. He is also a member of the Award Scrutiny Commission of the Centro Internacional de Arbitraje de Madrid-Centro Iberoamericano de Arbitraje-CIAM-CIAR, since 2024, and a member of the ICC Latin American arbitration group and of the LCIA Latin American users’ council. He is fluent in Portuguese, English, French and Spanish and has good knowledge of Italian.
Bruno Sant’Anna Fucci is admitted to practice in Brazil and is a partner of the law firm Fonseca e Salles Lima Advogados Associados, in Rio de Janeiro. He is a Master’s Candidate in Civil Law at the State University of Rio de Janeiro – UERJ. He is a Coordinator of the Brazilian Arbitration Committee in Rio de Janeiro – CBAr, since 2024. He is fluent in Portuguese, English and Spanish and has good knowledge of Italian.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
