Litigation remains the predominant method for resolving commercial disputes in Brazil. This preference can be attributed to its cost-effectiveness, a well-established appellate system, and the creation of specialized courts dedicated to Business Law issues in regions experiencing high demand, such as São Paulo/SP, Curitiba/PR and Rio de Janeiro/RJ, which necessitates swift resolutions.  

What is the legal framework governing commercial litigation? Is your jurisdiction subject to civil code or common law? What implications does this have? 

Brazil operates under a civil law system, anchored by its Federal Constitution enacted in 1988, which sets forth essential principles including free competition and free enterprise. This legal structure is further supported by several key statutes: the Economic Freedom Act (Law 13874/2019), the 1976 Corporations Act, the 2002 Civil Code, and the 2015 Civil Procedural Code. Additionally, case law has become increasingly significant due to the establishment of a system of binding precedents by the Supreme Court, ensuring consistency and predictability in the interpretation of the Federal Constitution.  

What key issues should a party consider before bringing a claim? 

Before initiating legal proceedings, parties should verify the possibility of reaching an agreement with the opposing party, considering the lengthy duration required to obtain a final judicial decision. This is due to the protracted nature of Brazil’s appellate system, which, despite being well-established, is slow due to the vast number of ongoing legal cases. Additionally, parties should consider associated costs, such as the monetary correction of the debt and the accrual of default interest. It is worth mentioning that the party may request in advance to produce evidence, so as to analyze the convenience of an agreement or to evaluate the chances of success of a lawsuit. It may also request preliminary injunctions (precautionary or anticipatory on the merits), which may be utilized to achieve an advantage for reaching an agreement.  

What is the judicial attitude towards mediation in Brazil? 

In the current Brazilian legal system, the judiciary holds a favorable attitude towards mediation. This is reflected in the legal framework that encourages the use of alternative dispute resolution methods to alleviate the burden on the courts and expedite the resolution process.

The 2015 Brazilian Civil Procedure Code, for instance, underscores the importance of mediation and conciliation as primary tools in dispute resolution.

Courts often promote these methods early in the litigation process, recognizing their effectiveness in fostering amicable settlements and reducing judicial backlog. This judicial endorsement is aligned with broader national policies aiming to enhance legal efficiency and access to justice.  

What is the process of mediation in Brazil? 

In Brazil, the mediation process is structured to provide an efficient and effective alternative to traditional litigation. The process typically unfolds as follows: 

1. Initiation: Mediation can be initiated voluntarily by the parties or suggested by a judge during ongoing litigation. Parties agree to mediate and select a mediator, either from a list provided by the court or an independent professional meeting the qualifications set by the Brazilian National Council of Justice.
2. First Meeting: The mediator organizes a first meeting with all parties involved to explain the rules and principles of mediation, such as confidentiality, neutrality, and voluntariness. This meeting sets the stage for open communication and collaboration.
3. Exploration: During subsequent sessions, the mediator facilitates discussions to allow each party to express their interests, concerns, and positions. The mediator helps clarify the issues and encourages the parties to explore potential solutions. This phase is crucial for understanding the underlying needs and objectives of each party.
4. Negotiation: As parties better understand each other’s positions, they move towards negotiating a settlement. The mediator assists in brainstorming and evaluating possible outcomes, guiding the parties towards a mutually acceptable solution.
5. Agreement: If the parties reach an agreement, the mediator helps draft the settlement terms, which are then reviewed and signed by the parties. This agreement can be made enforceable by a court order if necessary.
6. Closure: If mediation concludes without an agreement, the parties may proceed with litigation or explore other forms of alternative dispute resolution (e.g. arbitration).

How are mediators chosen and what is the role of the mediator? 

In the Brazilian legal system, according to Federal Law 13.140/2015 mediators are typically chosen either by agreement between the parties involved or appointed by the court if mutual agreement cannot be reached. The selection process is facilitated by the presence of registered mediators who meet specific qualifications as outlined by the National Council of Justice, which ensures that they have undergone appropriate training and adhere to a set of professional standards.  

The role of the mediator in Brazil is to act as a neutral facilitator in the dispute resolution process. Their primary function is to assist the parties in understanding the issues at hand, exploring potential solutions, and negotiating a mutually acceptable agreement.

The mediator’s objective is to guide the communication process in a way that promotes understanding, addresses interests and needs, and moves the parties towards a voluntary and informed resolution of their conflict.  

About Priscila Kei Sato 

I am Priscila Kei Sato, a Brazilian attorney, admitted to the bar in 1998. My professional focus is on managing significant and complex litigation cases. Since 2006, I have had the honor of serving as a partner at Arruda Alvim, Aragão, Lins & Sato Advogados. In this capacity, I have dedicated myself to enhancing my expertise and contributing to the success of our firm. My commitment is to deliver strategic insight in every legal challenge, ensuring our clients receive the highest caliber of legal representation.  

About Arruda Alvim, Aragão, Lins & Sato 

Our firm, Arruda Alvim, Aragão, Lins & Sato renders legal consulting and litigation services to Brazilian and foreign companies, by means of administrative and judicial measures in various areas of law, through its qualified and experienced team of attorneys. It stands out due to its elevated technical performance, personalized client service with direct engagement from the partners, handling high-complexity litigation with large social and economic impact, namely in class actions, direct actions of unconstitutionality, and procedures for the standardization of case law.  

Priscila Kei Sato 
Arruda Alvim, Aragão, 
Lins & Sato Advogados 
Tel: +55 (41) 3301-3800 
Fax: +55 (41) 3301-3801 
Email: priscilasato@aalvim.com.br 
www.aalvim.com.br 

Published by: www.lawyer-monthly.com - June 4th, 2024

We are specialized lawyers for family law and partners of the law firm Pilati + Fritz Rechtsanwälte.  

For many years, we have passionately defended the rights and interests of our clients, particularly in complex and often emotionally stressful matters involving family law. 

With our extensive experience and dedicated team, we support our clients in overcoming family-related challenges and accompany them on their way to a changed future.  

There is hardly any other legal area in which critical issues clash with deep emotions as intensively as in family and inheritance law. In addition to providing our clients with strong legal assistance, we consider it to be our duty to offer tailored advice and to understand their individual needs. In every case, we endeavor to deliver the best possible solution. Divorce proceedings can take a long time and be very painful and costly. Therefore, an amicable settlement is advisable. Very often, such a settlement can be reached.  

What is your professional background and education? 

We both hold a law degree and have completed numerous training courses in family law. Through our many years of practice and specialization in this field of law, we have gained a strong foothold in Germany and abroad. Our law firm attaches great importance to ongoing further training and interdisciplinary cooperation. 

Kristina comes from a family of lawyers. Her father, Dr. Albert Paul, was a well-known and respected lawyer and notary in Frankfurt am Main. 

Kristina has worked as a notary for many years and also holds a degree in humanistic psychology. 

I (Alma) have been with the firm for 16 years, including 10 years as a lawyer, four years as a partner and now as a managing partner. I will continue the law firm and its tradition. Under the long-standing mentorship of Kristina, I was well-prepared to take over the law firm. In our law firm, I take care of family cases with a foreign element, in which child custody matters are in the foreground.  

From the very beginning, we have served major clients throughout Germany, working at a high level. We complement each other perfectly. Kristina has benefited from my experience, which I gained as a research assistant at the University of Frankfurt am Main at the chair of Prof. Dr. Guido Pfeifer. Thus, she has been able to leverage scientific, systematic work and current case law in the law firm. From the outset, we have complemented each other, operating on the same wavelength, and have secured an orderly succession. 

We have access to a large network and can, therefore, help our clients in all situations.  

What type of services do you provide?  

Our law firm provides comprehensive legal advice and representation in all areas of family law, including the following: 

• Divorces and separations
• Custody and alimony disputes
• Marriage contracts and asset protection
• International family law issues
• Estate planning and inheritance law

Why did you decide to specialize in family law? 

Family law matters can be stressful for those involved and require particular sensitivity and expertise. We have chosen this area of law in order to assist our clients in difficult times and exceptional situations and to support them in resolving their family conflicts. The opportunity to help people and give them a perspective for the future motivates us in our daily work.  

How does child custody work in Germany? 

This is a very complex topic. In Germany—unlike in many other legal systems—distinction is made between custody and contact and access rights. Custody and, contact and access rights are independent of each other. Thus, a parent who does not have custody still has a right to contact with the child. 

Under normal circumstances, custody is jointly exercised by both parents. As far as the establishment of parental custody is concerned, distinction is made as to whether or not the parents are married to each other at the time of the child’s birth. 

If the parents are married at the time of birth, they are entitled to joint parental custody.  

If the parents are not married at the time of the child’s birth, they are entitled to joint parental custody 

1. if they declare that they wish to assume joint custody and make declarations of custody,
2. if they marry each other or
3. if the family court grants them joint parental custody.

If joint parental custody is on hand, both parents have equal rights and make joint decisions for the benefit of their children. 

In the event of separation and divorce of the parents, joint parental custody generally remains in place. If the parents live separately, both parents jointly exercise parental custody, though the parent with whom the children usually reside has sole decision-making authority in matters of daily life. Everyday care includes all matters that arise in daily life, e.g. school life including participation in day trips, picking up the child from daycare or school, and so on. In matters of considerable importance for the children, such as determining their place of residence, school enrollment, enrollment and deregistration from kindergarten etc., the parents must make a joint decision. If they are unable to do so, the family court may, upon application, transfer the decision-making authority regarding the matter on which they are unable to agree to one of the parents. 

Parental custody may be withdrawn from one parent by the court and transferred to the other parent for sole exercise if there is no minimum level of cooperation and communication between the parents and the continuation of joint parental custody poses a risk to the child’s welfare.  

Can I move abroad with my child when the other parent has joint custody in Germany? 

If both parents have joint custody, moving abroad with a child requires the consent of the other parent. Without this consent, such a move could constitute child abduction. In such cases, a court decision to transfer the right to determine the place of residence may be necessary, as the transfer of residence is a matter of considerable importance for the child. If the parents disagree about the child moving abroad, it will often be necessary to transfer other areas of parental custody in addition to the right to determine the child’s place of residence, e.g. in school matters if the child is a student and needs to be enrolled in school abroad.  

International family law issues can include cross-border divorces, child abduction and custody disputes. What are the main challenges and complexities regarding international family law issues? 

It depends on the individual case. In international family law, the greatest challenges lie in the different legal regulations and legal systems of the countries involved. The recognition and enforcement of court rulings and the coordination between different national authorities are especially complex.  

International child abduction and child return proceedings, in particular, pose special challenges for all parties involved. As the situation can be unbearable for the parents concerned, it is all the more important to proceed strategically and carefully evaluate any steps to be taken. 

International family law is becoming increasingly relevant since families no longer all live in the same place or in the same country. 

Our law firm has extensive experience in cross-border legal matters and works closely with colleagues and experts around the globe.  

What is the divorce process in Germany and what happens to our finances on divorce? 

Divorce proceedings begin with the filing of the application for divorce with the court. A divorce may be pronounced after one year of separation. If the spouses did not conclude any prenuptial and postnuptial agreement, the statutory provisions apply.  

The statutory matrimonial property regime is the community of accrued gains. Under the community of accrued gains regime, each spouse retains ownership and management of his or her own assets and also benefits from them. There is no legal liability for the debts of the spouse. There are no joint assets. Instead, the spouse with the smaller gain receives an equalization payment from the other spouse. The respective gain is determined on the basis of a strict cut-off date principle, i.e. information must, on request, be provided about the assets on the date of the marriage and on the date of service of the application for divorce. This information must be substantiated with supporting documents. In addition, information may be requested about the assets at the time of separation. This information must also be substantiated with supporting documents. The spouse who has made the higher gain must pay the other spouse half of the difference between the respective gains as compensation. Inheritances or gifts made by one spouse during the marriage are added to the initial assets so that the other spouse does not participate in the increase in assets resulting from such gifts. On the other hand, any increase in value is subject to equalization. 

The spouses are subject to restrictions on the disposal of the assets as a whole and of household items. In order to counteract arbitrary reductions in assets and thus a reduction in the equalization claim, certain disadvantageous measures are either withdrawn purely by calculation, or the disadvantaged spouse may demand that the third party return what has been granted. 

If the spouses are unable to reach an out-of-court settlement, they can include subsequent proceedings in the divorce settlement (so-called combined application), e.g. post-marital alimony or equalization of gains.  

A combined application means that certain matters that are decided in connection with a divorce must actually be decided in conjunction with the divorce. The purpose of the divorce settlement is to clarify the consequences of a divorce even before it is pronounced.  

In a combined application, a matter is only decided on together with the divorce if the parties involved request this. 

Distinction must be made between this and the compulsory connection that exists between divorce and pension equalization. This means that as soon as an application for divorce is filed, the family court automatically conducts pension equalization proceedings, equalizing the entitlements acquired by the spouses during the marriage. 

From a financial point of view, a spouse may also be entitled to separation alimony for the period up to the divorce and post-marital alimony for the period after the divorce.   

What are prenuptial and postnuptial agreements in Germany, how do they work, and can they be treated as binding contracts in all jurisdictions? 

Marriage contracts can regulate property issues, alimony, and pension provisions and may be concluded both before and after the marriage. They need to be notarized in order to be legally effective. Marriage contracts may also govern the consequences of divorce, such as equalization of gains, alimony, pension equalization, allocation of the marital home or division of household items, etc. In this case, they are referred to as “agreements on the consequences of divorce”. 

The recognition of marriage contracts in other legal systems depends on the respective national laws.  

It is advisable to regularly review and adapt marriage contracts, as marital life can change over time.  

What does an amicable divorce mean and what is the role of the lawyer in achieving an amicable divorce? 

An amicable divorce means that both spouses want to get divorced and agree on the main consequences of the divorce. A lawyer files an application for divorce on behalf one of the spouses. The other spouse does not need their own lawyer, but can agree to the other spouse’s application for divorce.

The divorce becomes final once the one-month period for lodging an appeal has expired. If both spouses are represented by a lawyer, a waiver of appeal can be declared at the divorce hearing, so that the divorce decree becomes legally binding right after the judge has pronounced the divorce decree, i.e. immediately. Thus, the marriage is finally dissolved on the same day.  

How is an estate dealt with if there are assets inside and outside of Germany? 

In the case of an estate with assets in Germany and abroad, both national and international regulations must be observed. This may require cooperation with foreign authorities and lawyers. It is important to consider all relevant inheritance and tax regulations in order to ensure a settlement that is both lawful and efficient.  

Probate matters can be emotionally charged and challenging to resolve. What are the main issues clients face and how are these resolved? 

The main problems are often family conflicts that may also arise from patchwork families, especially if there are several ex-wives, uncertainties about the legal situation, and tax issues. These problems can be solved through clear communication, timely arrangements, i.e. arrangements made during the lifetime of the respective person, comprehensive legal advice, and mediation.  

In the case of divorced entrepreneurs with underage children, it is advisable to have a divorce will. 

Sometimes, overcoming the obstacle of entering a mediation process is a greater hurdle than actually reaching an agreement.  

What are the challenges and issues regarding German property disputes on the breakdown of a marriage or relationship, and how are these resolved? 

Challenges can include valuations of complex business structures in the context of gain equalization, which can be resolved through expert advice and thorough financial analysis, negotiations and, if necessary, court decisions.   

Family mediation is a popular Alternative Dispute Resolution (ADR) method to settle disputes between ex-spouses and separated parents. What impact has mediation and other ADR methods had on German divorce cases? 

Mediation can considerably shorten court proceedings and reduce emotional stress. It can promote an amicable agreement and avoid lengthy court proceedings and offers the parties a chance to talk in a protected environment. A mediator helps the parties to take responsibility, learn how to deal with the conflict, and come to a mutual agreement. 

Subject to the parties’ agreement, mediation can take place before or during court proceedings. In family law proceedings, mediation is often conducted in court by judges who do not have jurisdiction in the case itself. Out-of-court mediation can even take place while the court proceedings continue.  

Have there been any recent significant changes in German family law? 

Yes. In recent years, there have been some significant changes in German family law, particularly with regard to custody, strengthened rights of unmarried fathers and same-sex marriage, especially since the introduction of “marriage for all” in October 2017. 

In January 2024, the Federal Ministry of Justice presented key points for a reform of parentage and filiation law. Besides the conventional marriage and family model consisting of father, mother, and children, new forms of cohabitation have emerged and might need to be taken into consideration.  

What skills and qualities do you need to become a good family lawyer? 

A good family law lawyer needs excellent legal knowledge, empathy, communication skills, and negotiation skills. Moreover, passion, trust, integrity, confidentiality, and a sense of responsibility are essential. 

Pilati + Fritz Rechtsanwälte 

Friedensstr. 11 . 60311 Frankfurt am Main  

Tel: +49 69 2695853-0  |  Fax: +49 69 2695853-65   |  Email: fritz@pilati-fritz.de 

www.pilati-fritz.de 

Published by: www.lawyer-monthly.com - June 4th, 2024

Since Venezuela withdrew from the Andean Community in 2006, intellectual property rights are regulated by the Industrial Property Law of 1955 (implemented in 1956), which provides protection for trademarks, patents and commercial names and the Copyright Law of 1993, which covers the protection of original works or authorship. In 2020, following a fifteen-year hiatus in patent grants, the Venezuelan Autonomous Service of Intellectual Property (SAPI) formally recognized and subsequently began applying the Agreement on Trade-Related Aspects in Intellectual Property Rights (TRIPS), alongside the Industrial Property Law of 1955. In the event of conflicting provisions, the most favorable to patent applicants prevails.  

What is the duration of each of these intellectual property rights? What procedures exist to extend the life of registered rights in appropriate circumstances? 

Trademarks, including trademark renewals, have a life span of 15 years from the date of registration or the date of renewal, as applicable, and may be renewed indefinitely. Renewal requests may be filed six months prior the trademark expiration date. Prior to Venezuela’s withdrawal from the Andean Community, the duration of trademarks and trademark renewals was for a period of 10 years.  

Under current Venezuelan law, patents of invention have a 20-year life span, whereas industrial design patents have a 10-year life span, each as of the date of the grant of the application. Patents granted prior to October 1, 2020, have shorter durations and cover terms beginning as of the date of filing of the patent application.  In order to maintain the validity of patents, annuities must be paid in advance of the anniversary of the grant of the application. Venezuelan law does not contemplate patent renewals.  

Copyright protection extends from the date of creation to 60 years after the death of the author, pursuant to the Copyright Law of 1993.  

Who can apply for registration of these intellectual property rights and, briefly, what is the procedure for registration? 

Any inventor or owner, including assignees or entities owning the rights to an invention, are eligible to apply for a patent. The filing requirements for patents, including design patents requires the submission of the (i) name, domicile and citizenship of the inventor/ designer and representing party, where applicable, (ii) original, apostilled declaration of inventorship (with assignment, where applicable), (iii) specifications, claims and drawings, if applicable, of the invention, including drawings showing different views of the design, and (iv) any applicable priority information, including jurisdiction, registration number and date.  

If priority is claimed, the applicant must provide a certified hard copy of the priority application filed in a foreign jurisdiction, or alternatively, a digital copy of such priority application signed by the applicable foreign patent office, within three months of the patent application date. Priority applications must be filed in Spanish. Any translation of such documents must be executed by a locally certified translator. Such applications must be accompanied by an original, notarized and apostilled power of attorney in the name of the applicant.  

Trademark and commercial name applications require the applicant to file their name, domicile and citizenship. Applications must be accompanied by an original, notarized and apostilled power of attorney in the name of the applicant. If the trademark is a logo or a logo composite mark, applicants must submit such image in a .jpg format, subject to other size specifications.  

If priority is claimed, the applicant must provide a certified hard copy of the priority application filed in a foreign jurisdiction, or alternatively, a digital copy of such priority application signed by the applicable foreign patent office. Priority trademark and commercial name applications do not need to be apostilled. Any translation of such documents into Spanish must be executed by a locally certified translator.  

Copyright applications require the applicants to submit the following to the Venezuelan PTO: (i) the author’s name, citizenship and address, (ii) the applicant’s name, citizenship and address (if different from the author), and (iii) a hard copy and digital copy of the material.     

What criteria does my invention have to meet to obtain a patent? 

Inventions must be novel, involve an inventive step and have industrial applicability. Neither the Industrial Property Law nor TRIPS provide a grace period in the Venezuelan PTO’s assessment of the novelty of an invention.  Accordingly, to avoid the risk of failure to satisfy the novelty requirement, the patent applicant must ensure that they have not, prior to the filing date, disclosed the subject matter of their invention.    

Can I obtain a patent for any product or process? 

Applicants may obtain a patent for any well-defined and useful product, excluding drugs, medicines or pharmaceutical compositions, including instances where a new use for a previously patented product is discovered. Substances or elements, or combinations thereof, in the public domain are also excluded from patent coverage, unless such combinations are proven unable to function separately without impairing their functionality. Processes, including processes used to obtain pharmaceutical compositions, are likewise patentable under Venezuelan law.  

How long do patents last in Venezuela and do they expire? 

Patents of inventions granted after October 1, 2020, last for a term of 20 years, whereas industrial design patents have a life span of 10 years, as of the date of the grant of the application. Patents of inventions and industrial design patents granted prior to October 1, 2020, have a life span of 10 years from the application filing date. Venezuelan patent law does not currently provide for patent term extensions. Consequently, patents expire at the end of their terms.  

Does Venezuela consider ‘statement of inventorships’? 

Yes; patent applications (including patents of invention and design patents) require filing original, apostilled declarations of inventorship, which must be signed by each inventor or patent owner. In situations where the patent applicant is different from the inventor, the applicant must submit proof of assignment along with the declaration of inventorship.   

Can I license my patent in Venezuela or internationally and what are the requirements to do this? 

Patent owners may license their patents Venezuela upon the licensor’s registration in the Venezuelan PTO. Such registration enables patent holders to enforce their rights against third parties domestically, but this does not extend to other jurisdictions.  

Dana Bentata 
Bentata Abogados  
Av. Orinoco con calle Mucuchies 
Torre Nordic, PH 
Las Mercedes, Caracas - Venezuela 
Tel: +58 212 6007400 
Fax: +58 212 6007401 
Email: dbentata@bentata.com 
www.bentata.com 

Published by: www.lawyer-monthly.com - June 4th, 2024