INTRODUCTION

The new civil procedural system, adopting a reformist approach, introduced legislation grounded in principled instructions and closer alignment with the constitutional text. These innovations directly impact cases of international jurisdictional conflicts between Brazilian and foreign jurisdictions.​

The primary advancement regarding party autonomy is the assurance that parties involved in an international contractual relationship—within legal limits—may choose a foreign forum to resolve disputes that would typically fall under Brazilian jurisdiction.​

This article aims to analyze disputes arising from relationships based on international contracts, where there is a conflict between national and foreign jurisdictions, focusing on the innovations brought by the 2015 Code of Civil Procedure.​

1. LIMITS OF NATIONAL JURISDICTION AND THE PRINCIPLE OF TERRITORIALITY

A crucial factor in studying the limits of Brazilian state jurisdiction relative to foreign states is understanding the effectiveness of judicial protection. As Vera Maria Barreto Jatahy states, “the judgment should be rendered where it is to produce effects.”​

Jurisdictional limits directly affect the effectiveness of legal protection. It is futile for a state to grant protection through a judicial decision in an international relationship if it has no effect in the foreign state.​

Daniel Amorim Assumpção Neves, interpreting the theories of Gusmão Carneiro and Botelho de Mesquita, explains:​

“The principle of effectiveness dictates that Brazilian justice should only consider itself competent to judge cases whose decisions have effects in national territory or in a foreign state that recognizes such decisions, thus making its actions always useful and theoretically effective.”​

In reality, competence limitations in international relations are restrictions on the exercise of Brazilian state jurisdiction.​

Territoriality should not be confused with the location where the judicial decision is rendered but with the effectiveness of protection and where it should produce effects.​

Territoriality, therefore, defines the space where jurisdiction operates.​

Fredie Didier Jr. notes:​

“International competence aims to delimit the space in which jurisdiction should operate, as the state can sovereignly enforce its judgments.”​

Thus, the effectiveness of judicial protection is paramount in resolving any international competence conflict and should guide state actions in configuring internal regulations. This approach was adopted with the institutionalization of new Brazilian civil procedural norms, as demonstrated below.​

2. INTERNATIONAL COMPETENCE

– RULES FOR DELIMITING COMPETENCE

Before delving into the topic, it is essential to outline some rules, primarily based on the effectiveness of jurisdiction, that govern decisions related to recognizing potential competence conflicts and addressing disputes involving foreign parties or states.​

These are: (i) the Kompetenz-Kompetenz rule; (ii) forum shopping; and (iii) forum non conveniens.​

All are grounded in jurisdictional effectiveness but each defines a specific precept.​

The Kompetenz-Kompetenz rule essentially establishes that the preliminary analysis of competence limits to judge a particular matter should be conducted by the court intending to render the decision. In other words, the judge is competent to assess and deliberate on their own competence.​

The application of the Kompetenz-Kompetenz rule is accepted in the Brazilian legal system and is increasingly utilized in judicial protection, ensuring that the court deliberates on its competence to resolve the dispute presented, thereby ensuring the effectiveness of its decision.​

Secondly, the forum shopping rule allows parties to choose in advance the forum for resolving potential disputes. Until the enactment of the 2015 Code of Civil Procedure, the forum shopping rule was not institutionalized.