Court Assistance in Pre-Arbitration Evidence Gathering After Zf Automotive and Bluemoon: The Current State of Play in Brazil

As starkly illustrated by a string of recent UK High Court decisions, international arbitration is expensive (see GEMBBL v Kurdistan and Safra v Wilmer Hale). As a result, the decision to embark on proceedings is not taken lightly. More often than not, however, it is prompted by sudden events (the blockade of the Strait of Hormuz and the Ever Given debacle being two cases in point) and, as such, may be informed by a limited appraisal of the relevant facts; indeed, complete knowledge sometimes comes too late, when the window for settlement has already closed. To mitigate this risk, the availability and scope of court assistance in pre-action discovery are at the forefront of counsel’s mind when devising case strategy.

Until recently, the typical routes available to Brazilian parties were 28.U.S.C §1782, where the counterparty had a presence in the US, and articles 381 et seq. of the Brazilian Civil Procedure Code (BCCP). However, following the SCOTUS ruling in ZF Automotive and its progeny of lower court decisions, court assistance in aid of arbitration under §1782 was largely excluded (see In Re Alpene Ltd. and In Re Webuild, as reported on this blog, here). Two years later, the STJ (Brazil’s highest appellate court for non-constitutional issues of federal law) held in Bluemoon that court assistance under article 381 et seq. BCCP is only available in cases of demonstrable urgency, further limiting the toolkit available to arbitration lawyers (as reported here).

At the same time practitioners have had to grapple with these developments, they have since also explored alternative mechanisms, the outer bounds of which continue to be tested in litigation. Against this background, this note takes stock of STJ caselaw in the aftermath of Bluemoon to provide an overview of the pre-arbitration evidence gathering tools available in Brazil, namely: (i) pre-arbitration discovery, under articles 381 et seq. BCCP, as refashioned by Bluemoon; and (ii) the standalone document production action under articles 318 and 396 et seq. BCCP. 

Pre-arbitration Discovery (PAD)

Substantive Requirements

Under article 381 BCCP, to obtain pre-action discovery in support of court proceedings an applicant must establish that: (i) the later verification of the facts sought to be proven by the requested evidence may be impossible or very difficult; (ii) the evidence may facilitate a settlement; or (iii) prior knowledge of the facts may be of assistance in deciding whether or not to pursue a claim. In addition, the applicant must establish ‘the need for the early production of evidence’ and ‘precisely state the facts’ purported to be proven thereby (article 382 BCCP). This is not an onerous requirement; the applicant is expected to provide the court with an overview of the nature of its intended claim and set out the disputed facts in outline only.

In Bluemoon, however, the STJ held that discovery in aid of future arbitration is only available under the first of these three circumstances. While consistent with article 22-A of the Brazilian Arbitration Act, whereby, prior to the commencement of the arbitration, parties may only resort to state courts to obtain ‘interim or urgent measures’, this ruling had major practical implications and significantly reduced access to PAD.

Indeed, lower courts have since adopted a relatively stringent standard of urgency. Under the developing body of caselaw, urgency within the meaning of article 381 requires evidence to be at risk of perishing, such that it would not be possible to await the commencement of the arbitration proceedings (see the following decisions by the Court of Appeal of the State of São Paulo – TJSP, Brazil’s leading arbitral jurisdiction, available here and here). Hence, arguments based on mere expediency, rather than on a concrete risk of evidence spoliation, are generally unavailing (see, also by the TJSP, here).

The diminished availability of PAD in Brazil was partially remedied by the introduction by local arbitral institutions of new rules providing for expedited PAD procedures (AMCHAM, FIESP/CIESP, and CAM-CCBC Rules on Early Production of Evidence, discussed here and here). However, while these institutional initiatives represented a significant step toward filling the procedural gap created by Bluemoon, adoption has not been uniform: a number of leading arbitration institutions still lack dedicated procedures for early evidence production, most notably the ICC, despite handling a significant volume of arbitrations seated in Brazil or involving Brazilian parties (see 2025 ICC Dispute Resolution Statistics).

Parties in Brazil are therefore often left to choose between the highly inefficient option of commencing an arbitration solely for the purpose of producing evidence or waiting until the document production stage of the main reference.

The first alternative is arguably even more unappealing where the evidence is located in Brazil but the arbitration is seated abroad, as any eventual award, provisional measure granted by the tribunal, or even a production order by the courts at the seat is subject to prior recognition by the STJ before it can be enforced within the jurisdiction. Paradoxically, the delay inherent in this cross-border process may itself generate the risk of evidence perishing, thereby establishing a ground for judicial PAD under Bluemoon. Moreover, pursuant to Brazil’s reservation under Article 23 of the Hague Evidence Convention, requests from the foreign court for assistance in pre-trial discovery of documents as known in common law countries may not be given effect (AgInt na CR 13.559/US and Decree No. 9.039/2017).

Discoverable Evidence

Through PAD, parties are, in principle, entitled to broad production of information, similar in scope to US-style discovery. This includes document production, oral examination of witnesses, and forensic inspection of documents or site visits by either party-appointed or court-appointed experts. US-style depositions are, however, uncommon, as witness testimony is ordinarily given under the supervision of a judge — a requirement for witness evidence in court litigation under articles 318 and 453 BCCP.

With respect to document production, courts have the power to render assistance against either the prospective respondent in the arbitration or third parties, provided it is sufficiently established that the relevant documents are in their possession or under their control (REsp no. 2,181,676). An important caveat is that where a PAD request is addressed to a non-signatory to the arbitration agreement, the more limited admissibility criteria set out in Bluemoon do not apply (REsp no. 2,048,065); consequently, assistance is available in any of the scenarios envisaged by article 381 BCCP, even if sought in support of actual or prospective arbitration proceedings.

Defences

Despite the breadth of the statutory language, judicial assistance in Brazil is in practice much more limited than in common law jurisdictions. While there are no detailed court rules or protocols governing evidence production, Brazilian courts, in keeping with the continental tradition, are generally more inclined than its US or UK counterparts to deny relief based on the irrelevance or immateriality of the evidence sought, the unreasonableness of compelling its production, or, though this is a high hurdle to overcome, where the underlying claim is prima facie hopeless, rendering discovery pointless.

Crucially, defences must not merely purport to anticipate arguments touching on the merits of the underlying dispute (article 382, para. 4, as construed in REsp no. 2,037,088). The distinction is, however, a fine one. It therefore falls on the judge to police attempts to turn disputes about discovery into full blown trials on the substance of the case.

Confidentiality and privilege do not constitute absolute bars to production, but may warrant specific directions by the court to preserve privileged or commercially sensitive information (articles 396 and 404 BCCP, as construed in REsp no. 2,181,676).

Procedure

The court has the power to summarily dismiss the claim before service where it manifestly fails to meet the substantive requirements set out above. If, however, the claim is admitted, the court will set a reasonable timeframe for the respondent either to produce the requested evidence or, if it so chooses, to submit a defence. As to the latter, while the language of article 382, para. 4, BCCP precludes the respondent from either filing a defence or appealing a production order, this provision has been given limited effect by the STJ in REsp no. 2,037,088. As held by the STJ, the respondent must be given an opportunity to be heard as a matter of constitutional right. Relatedly, on the same basis, lower court decisions are subject to appeal, regardless of the outcome. As indicated, however, defences and appeals remain subject to the limitations outlined above (see Defences).

Enforcement

In case of non-compliance, courts have wide discretion to order enforcement measures against recalcitrant respondents and third parties, including search and seizure and the imposition of monetary sanctions (article 139, IV, BCCP, see also REsp no. 2,186,939).

The Standalone Document Production Action

Substantive Requirements

In contrast to PAD, where this is a statutory requirement, the standalone document production action may, but need not, relate to a prospective arbitration or even to an existing or foreseeable dispute, though this is often the case in practice. Instead, the action is founded on a legal or contractual entitlement over information or real property in the possession or under the control of another party, which the applicant seeks to vindicate through document production or delivery up (REsp no. 1,803,251). It is, however, a condition for relief that (i) a previous pre-action request for production of the documents has gone unmet (STJ Repetitive Theme 648, a binding precedent under Brazil’s repetitive appeals procedure) and (ii) that the entitlement be sufficiently well defined so as not to require the court to go into the merits of the underlying dispute, and in consequence interfere with the jurisdiction of the arbitral tribunal (REsp no. 2,219,466).

In commercial disputes, the paradigm case of an actionable entitlement of this kind is the right of shareholders holding at least 5% of a company’s share capital to access its accounting records (article 105 of the Brazilian Companies Act). The action may nevertheless be deployed in a wide range of other situations, including to enforce reporting obligations in SPAs (as illustrated by AREsp no. 3,098,187). Arguably, the same reasoning would equally apply to similar obligations contained in, for example, JVAs, SHAs, debt instruments, or intercreditor agreements, underscoring its significance for commercial parties. 

Defences

Under article 404 BCCP, production may be excused on the basis of privilege, if it would expose the respondent to criminal prosecution, or if there is a legal provision that justifies refusal. Article 404(V) BCCP nevertheless gives the court wide discretion to excuse compliance with a disclosure order where ‘there are other grave motives that … justify the refusal’. This catch-all statutory defence is broad enough to capture all the grounds otherwise available to resist a PAD request, such that they may likewise be deployed as defences here, depending on the circumstances of the particular case. As with PAD, neither confidentiality nor privilege are complete defences to production (articles 396 and 404, sole paragraph, BCCP – see above).

Discoverable Evidence

The scope of the evidence discoverable under this mechanism is narrowly circumscribed to document production, whereas PAD enables the production of a range of other types of evidence (including oral examination, expert inspections, and site visits). The standalone document production action therefore functions as a targeted, surgical tool, aimed at securing access to specific documents or categories of documents in the possession, custody, or control of third parties.

Procedure

A request shall contain: (i) a description in sufficient detail of the requested documents or categories of documents; (ii) a statement as to the purpose of the evidence being sought; and (iii) a statement of the reasons why the applicant assumes that the requested documents exist and are in the possession or control of the respondent (article 397 BCCP). Where these requirements are not made out, the court has the same power of summary disposal as under article 381 BCCP for PAD. If, however, the claim is admitted the court shall order the respondent to file a defence within a compressed timetable (article 398 BCCP) and, where it is established that the document is in the possession of a third party, that third party will also be given a chance to be heard (article 401 BCCP). Unless the requested documents are produced voluntarily or there is a bare refusal to produce, the court may then schedule a hearing (articles 402 and 403 BCCP). Ordinary rules on appeals apply, such that any lower court judgment may be appealed as of right (article 318 BCCP).

Enforcement

In contrast to PAD, monetary sanctions are a last resort and can only be imposed after a prior search and seizure has failed to yield any evidence (article 400 BCCP as construed, with binding effect, in STJ Repetitive Theme no. 1,000). The broader remedial powers afforded to the court under PAD are therefore a significant practical advantage over this latter type of action. 

It is questionable, however, whether the stated rationale for the distinction – namely, that monetary sanctions are unnecessary where non-compliance may lead to negative inferences being drawn (REsp no. 2,186,939) – should be carried over to the arbitration context, where whether adverse inferences are warranted is a matter for arbitral tribunal, not the court.

Conclusion

Even after Bluemoon, parties to arbitration agreements in Brazil still have meaningful options for obtaining judicial assistance in gathering evidence for prospective proceedings. Notably, the standalone document production action has emerged as a powerful yet underused tool for targeted disclosures. Nevertheless, this type of action, which requires the applicant to establish a discrete legal or contractual entitlement to specific documents (or categories of documents), remains untested in cases of contracts governed by a foreign law. It therefore remains to be seen whether Brazilian courts will engage with claims based on a foreign law or will rather rely on the fact that that law must be pleaded and proved to refer parties to arbitration. At any rate, aside from the question mark hanging over this action’s suitability in multi-jurisdictional disputes, under the current state of the law, the threshold for relief is relatively demanding under either of the examined mechanisms.

In sum, however valuable, each instrument has its own pitfalls, making evidence gathering in a post-ZF Automotive and post-Bluemoon world dependent on imaginative legal strategy, including increased reliance on investigative support by trusted advisors.