The Declaration of Economic Freedom was recently instituted by Presidential Provisional Measure 881/2019. Designed to curtail the state's undue interference in economic activities performed by individuals and companies, the law (which is subject to confirmation by Congress) is also expected to affect new and existing litigation, including the Civil Code. On its face, the Civil Code modification seems positive. However, it is unclear how the courts will react to these novelties.
Serving companies and individuals in Brazil in connection with suits abroad has just become easier, as Brazil has formally adhered to the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The convention should expedite both the summons of Brazilian parties involved in foreign proceedings and the service of parties abroad in connection with Brazilian litigation.
In addition to contractual fees, winning attorneys are entitled to court-awarded attorneys' fees, which are determined using objective criteria. However, despite being relatively straightforward to calculate, some courts struggle to award attorneys' fees, particularly in disputes involving significant amounts. A recent Superior Court of Justice decision provides clarity in this regard and is likely to set the tone for future disputes regarding court-awarded attorneys' fees.
The relatively new Civil Procedure Code specifically authorises parties to a contract to select a foreign jurisdiction to decide their disputes. Although the language of the code is straightforward, the lower courts are still debating whether the choice of a foreign jurisdiction would set aside the jurisdiction of the Brazilian courts. Until the Superior Court of Justice sheds some light in this regard, it will remain unclear whether Brazilian courts' jurisdiction can be set aside in favour of foreign courts.
Since 2016 Minas Gerais has been establishing transparency laws to create a system whereby consumers and society at large will be able to access information regarding incentives and payments between healthcare professionals and the health industry. Under the state laws, the health industry must provide information on the relationships that they maintain with healthcare professionals which may represent a potential conflict of interest.
Even though Brazil is a civil law country, the New Civil Procedure Code of 2015 has brought elements of common law jurisdictions to the Brazilian courts. Certain precedents rendered by the Supreme Court and the Superior Court of Justice – the country's highest courts for constitutional and federal law issues, respectively – are now binding on the lower courts.
The importance of clinical research for developing new treatments and discovering cures for diseases is indisputable. However, the degree to which patients benefit from participating in clinical trials and whether they should have post-trial access to experimental treatments are highly disputed, especially in Brazil, where free universal healthcare is a constitutional right. The House of Representatives is discussing clinical research and post-trial access as part of a new legislative bill.
One of the most influential moves in the healthcare sector is the recent development of point-of-care solutions. The main goal is to allow patients to get on-demand healthcare outside the hospital, mainly through medical devices and apps. Such technologies are likely to have a significant positive effect in the Brazilian public health system by making diagnostic testing accessible in areas where healthcare is hard to access.
The continuity of traditional healthcare models seems unlikely with the breakthrough of disruptive technologies. Historically, the healthcare sector has been slow to implement technological tools that have quickly transformed other areas of people's daily lives. However, a promising solution to address the interoperability, integrity and security challenges presented in the healthcare sector seems to be blockchain technology.
Advances in technology and the so-called 'fourth industrial revolution' continue to have an effect on society. For instance, telemedicine has rapidly developed and transformed the services provided by healthcare providers worldwide. Due to the expansion of telemedicine in Brazil, the Federal Council of Medicine intends to review and update Resolution 1643, which will hopefully attract new players to the market.
The National Council of Private Insurance recently submitted for public consultation a draft regulation on the acceptance of retrocession by insurers and its intermediation. Among other things, the draft regulation allows insurers to accept retrocession risks from foreign reinsurers not registered with the Superintendence of Private Insurers (SUSEP) through foreign reinsurance brokers also not registered with the SUSEP, provided that the local insurer is authorised to operate in the lines of risks accepted.
Brazil's complex and inefficient tax system is known worldwide. In addition to a heavy tax burden, the tax compliance costs that companies must bear in order to do business in the country are particularly high. This is also the case for the healthcare sector. However, there are specific cases of tax exemption, 0% tax rates and other exceptions which aim to reduce the final price of pharmaceutical products, devices and equipment. Several of these rules add to the complexity of Brazil's puzzling tax system.