ABA JURISDICTION PROJECT
A Brazilian Perspective
1.1. Please find below a general overview of relevant legislation and parameters for jurisdiction from the standpoint of Brazilian law in addition to our comments to the "Request for Comments" in connection with the American Bar Associations Transnational Jurisdiction in Cyberspace Project.
1.2. Please note that at present there is very little specific legislation in Brazil regulating the Internet. Therefore, until such time as relevant aspects of the Internet and electronic commerce come to be expressly regulated in Brazil, Internet activities will be seen in the light of existing legislation, some of which is set forth below with a view toward providing a general overview.
1.3. For your convenience this paper has been divided into the following sections:
1. This Introduction;
2. General Regulatory Overview;
3. Judicial and Legislative Jurisdiction;
4. Contracts and Sales
5. Choice of Forum, Choice of Law, Enforceability and Foreign Judgements;
6. Consumer Protection Code;
7. Taxation of Products and Services;
8. Telecommunications and Internet Regulation;
9. Comments to Questions Posed in "Request for Comments"
10. Final Considerations
2. General Regulatory Overview
2.1. It is important to realize that in terms of legal systems, Brazil is a civil-law jurisdiction that uses a codified method in contrast to the judicial precedent or common law approach in other jurisdictions. Therefore, in Brazil, one of the primary concerns is with what the written law states or what it reasonably implies, rather than with judicial decisions. Nevertheless, prior decisions have an important bearing on the way that the written law is being interpreted, and although judicial precedents are not binding upon the courts, they are indicative of how many courts would rule on a given subject. Therefore, one may safely generalize by saying that a discussion of Brazilian law tends to be largely a discussion of legislation rather than of case law. Also significant is the commentary of jurists known as "doctrine".
2.2. The Brazilian Codes set forth a complete treatment of a given subject matter in a complete law or code. All the basic codes are federal (although there are state and municipal codes of more limited scope). Therefore, the important legislation is nationwide in scope. Several codes that may be relevant to the subject include the following:
2.3. The Civil Code, adopted in 1916, covers the subjects of rights, obligations, property and persons. It also provides for rights and obligations regarding real estate property, personal property and a combination of these. (Please see below for further discussion). The Civil Code establishes the form and effect of legal acts such as contracts, mortgages or pledges and is utilized as a source in situations where other legislation is primarily applicable.
2.4. The Commercial Code dates from 1850 and was intended to cover all commercial transactions between "commercial persons" in most situations such as agency, sales, sureytyships and factoring to which it is still generally applicable, as well as negotiable instruments and company forms to which it is only partially applicable.
2.4.1. Much of the Commercial Code has been made obsolete by subsequent developments and most important commercial matters are provided for in new legislation including company law, checks, promissory notes, and duplicate invoices.
2.5. The Code of Industrial Property ("Industrial Property Law n. 9279 of May 1996") provides for patents, trademarks, the licensing thereof, transfer of technology and the rendering of technical services.
2.6. The Consumer Protection Code ("Law 8.078 of September 11, 1990") provides for consumer protection relative to products and services and strict liability for product defects.
3. Judicial and Legislative Jurisdiction
3.1. Judicial Jurisdiction
3.1.1. The Federal Constitution of Brazil confers jurisdiction to the judiciary, jurisdiction being understood here as one of the functions of the sovereignty of the state, which manifests itself through the judiciary, deciding conflicts of interests, and, in this way, ensuring the rule of law.
3.1.2. The Brazilian judicial system is divided between the ordinary courts (civil and criminal) and the special courts including labor military and electoral courts. Article 92 of the Federal Constitution provides:
"Art. 92. The following are the bodies of the Judicial Power:
the Federal Supreme Court;
the Superior Court of Justice;
the Federal Regional Courts and the Federal Judges;
the Labour Courts and Judges;
the Electoral Courts and Judges;
the Military Courts and Judges;
the Courts and Judges of the States, of the Federal District and of the territories.
Sole paragraph- The Federal Supreme Court and the Superior Courts have their seat in the Federal Capital and their jurisdiction covers the entire national territory."
3.1.3. The ordinary courts are both federal (basically in processes in which the federal government is a party or in which a foreign state or international organization is involved) or state courts. In spite of the existence of three levels of jurisdiction within the state and federal judicial systems, each individual judge or panel of judges is free and independent of a superior court to decide in relation to the cases brought before them.
3.1.4. Legal proceedings at state and lower level federal courts are tried by individual judges. The courts of the next level, which have the function of reviewing the decisions of the lower level courts, are the state appeals courts ("tribunais de justiça estaduais") in their various sectors, and the regional federal courts (one in each state), respectively.
3.1.5. The Brazilian labour courts differ from the other courts, in the fact that they are presided over by panels of judges at all levels, including the courts of first instance. These courts are comprised of Panels of Conciliation and Judgement, the Regional Labour Courts and the Superior Labour Court. They have jurisdiction over collective and individual labour disputes. Individual disputes are those which relate to questions relating to the interests of individuals, brought before the courts by the employees themselves against their employers. Collective disputes are those, which involve the wider interests of a given category of workers and the respective trade unions in, for example, cases involving strikes. In accordance with Amendment 93 to the Constitution, these (collective) disputes may now be resolved by judgements at arbitration.
3.1.6. At the trial court level, the specialized criminal courts are composed of:
(i) Criminal Trial Courts and Criminal Appeals Courts, which are courts of first and second instance, respectively, have jurisdiction for the trial of ordinary citizens who are alleged to have committed crimes, as classified by the Penal Code. However, cases dealing with matters at the federal level are subject to the jurisdiction of the Federal Justice courts.
(ii) Jury Courts, which judge crimes with malicious intent against human life. In this forum the decision is arrived at by the people, represented by jurors, chosen from among common citizens.
(iii) Courts to Instruct Compliance with Criminal Penalties ("Vara de Execuções Criminais") which supervise the measures necessary to ensure that sentences are duly served and penalties applied.
(iv) Police Internal Affairs and Prison Supervisory Courts, which oversee the actions of the police and of the prison administrations.
3.1.7. The specialized civil courts are composed of:
(i) Civil Courts, which have jurisdiction in those processes which are not subject to the jurisdiction of the other specialized civil courts.
(ii) Public Finance Courts, which have jurisdiction in those processes in which state or municipal finance secretariats are the litigants.
(iii) Courts of Family and Successions, which have jurisdiction, primarily, in relation to processes relating to family matters, including such questions as alimony and inheritance, and matters and sequels related thereto.
(iv) Courts of Public Registries, which have jurisdiction in processes arising in relation to registrations made in the Notarial Registers, as well as in relation to the acts of the officials of such public notaries.
(v) Courts for Minors, which have jurisdiction in processes relating to minors which, are not subject to any other specialized jurisdiction; processes are, therefore, subject to the jurisdiction of these courts as the exception rather than the rule.
(vi) Work Accidents Courts, which hear cases in relation to accidents at work, as described in the respective federal legislation, and their consequences, including ensuring compliance with commissions in this specific area.
3.1.8. Brazil also has special courts, which have jurisdiction, among other things, for hearing cases in relation to minor criminal offences.
3.1.9. In those counties where there are no specialized courts the state judges have jurisdiction to hear such cases as would normally be heard by specialized courts.
3.1.10. Above these courts is the Supreme Court of Justice in Brasília, which has the function of judging, among other matters, appeals against decisions of lower courts contrary to treaties or federal law and appeals against conflicting decisions of different courts (unification of jurisprudence). Finally, at the top of the pyramid, is the Supreme Federal Tribunal, similar to the Supreme Court in the United States of America. It is a constitutional court formed by 11 judges responsible for guaranteeing that the principles of the federal constitution are applied and respected.Final decisions on judgements, pronounced by the Federal Supreme Court, in declaratory actions of constitutionality of a federal law or normative act, shall have force against all, as well as a binding effect, as regards the other bodies of the Judicial Power, and the Executive Power.
3.2. Legislative Jurisdiction
3.2.1. In the area of legislative jurisdiction, pursuant to Article 22 of the Federal Constitution, the National Congress (at the federal level) has the exclusive power to legislate on: (i) civil, commercial, criminal, procedural, electoral, agrarian, maritime, aeronautical, space and labour law; (ii) expropriation; (iii) civil and military requisitioning, in case of imminent danger and in times of war; (iv) waters, energy, informatics, telecommunications and radio broadcasting; (v) the postal service; (vi) the monetary and measures systems, metal certificates and guarantees; (vii) policies for credit, foreign exchange, insurance and transfer of values; (viii) foreign and interstate trade; (ix) guidelines of the national transportation policy; (x) the regime of the ports and lakes, rivers, oceans, air and aerospace navigation; (xi) traffic and transportation; (xii) ore deposits, mines, other mineral resources and metallurgy; (xiii) nationality, citizenship and naturalization; (xiv) indigenous populations; (xv) emigration, immigration, entry, extradition and expulsion of foreigners; (xvi) organizations of the national employment system and conditions for practising professions; (xvii) the Judicial organization of the Attorney General’s Office and of the Public Defender’s Office of the Federal District and of the Territories, as well as their administrative organization; (xviii) the national statistical, cartographic and geological systems; (xix) systems for savings, as well as obtaining and guaranteeing popular savings; (xx) consortium and lottery systems; (xxi) general organization rules, troops, war material, guarantees, drafting and mobilization of the military police and military fire brigades; (xxii) the jurisdiction of the federal police and of the federal highway and railway police: (xxiii) social security; (xxiv) directives and bases for national education; (xxv) public registries; (xxvi) nuclear activities of any nature; (xxvii) general rules for all types of bidding and contracting, for the direct and indirect public administration, including foundations instituted and maintained by the Government, in its various spheres, and companies under government control; (xxviii) territorial defense, aerospace defense, maritime defense, civil defense, and national mobilization; and (xxix) commercial advertising.
3.2.2. A supplementary law may authorize the States to legislate upon specific questions related to the matters listed in Article 22 referred to above.
3.2.3. In some areas, federal and state legislative jurisdiction are concurrent. In accordance with Article 24 of the Constitution, these include: (i) tax, financial, penitentiary, economic and urbanistic law; (ii) the budget; (iii) commercial boards of trade; (iv) costs of forensic services; (v) production and consumption; (vi) forests, hunting, fishing, fauna, preservation of nature, defense of the soil and natural resources, protection of the environment and control of pollution; (vii) protection of the historic, cultural and artistic heritage, as well as of assets of touristic interest including natural scenic beauties; (viii) liability for damages to the environment, to consumers, to assets and rights of artistic, aesthetic, historical, and touristic value, as well as to scenic beauties; (ix) education, culture, teaching and sports; (x) establishment, operation and procedures of small claims courts; (xi) judicial procedures; (xii) social security, protection and defense of health; (xiii) legal assistance and public defense; (xiv) protection and social integration of handicapped persons; (xv) protection of childhood and youth; and (xvi) the organization, guarantees, rights and duties of the civil police.
3.2.4. Within the scope of concurrent legislation, the federal jurisdiction is limited to the establishment of general rules. The exercise of such jurisdiction does not exclude the supplementary jurisdiction of the States. Moreover, if there is no federal law on general rules, the States shall exercise full legislative jurisdiction to provide for their peculiarities. A federal law under general rules preempts state law, whenever state law conflicts with federal law.
3.2.5. With regard to judicial review, pursuant to Article 103 of the Federal Constitution, the Federal Supreme Court may declare any State law or normative act unconstitutional on its face and an absolute majority of the court must approve such a declaration. Direct action to declare a law or act unconstitutional may be brought by (i) the President; (ii) the Senate; (iii) the House; (iv) any state legislative assembly; (v) any State Governor; (vi) the Federal Procurator; (vii) the Brazilian Bar Association; (viii) any duly represented political party; or (ix) any union or class entity of national scope. For the purposes of appellate review, cases involving federal questions must be litigated before a member of the federal judiciary with jurisdiction in the capital of the state or territory.
4. Contracts and Sales
4.1.1. Contracts are governed by the Civil Code articles 1.079 through 1.504 as well as by specific legislation.
4.1.2. Article 1.079 of the Civil Code provides that the manifestation of assent in contracts may be tacit when the law does not require that it be express. As in common law, under Brazilian law agreements are reached through a process of offer and acceptance.
4.1.3. Article 1080 provides that the offer of the contract obliges the proponent provided that provisions to the contrary do not result of the terms of the proposal, the nature of the business, or the circumstances of the case.
4.1.4. However, a proposal (i.e. offer) pursuant to article 1.081 is not binding if:
(i) if it was made without term to a person present and was not accepted immediately;
(A person who contracts by telephone is also considered to be present).
(ii) if it was made without term to a person absent, and sufficient time had elapsed for an answer to reach the proponent;
(iii) if made to an absent person and an answer was not given within the period determined;
(iv) if, before, or simultaneously, the other party receives knowledge of the retraction of the proposal.
4.1.5. The application of the rules of offer and acceptance establish the existence of an agreement between the two parties. In addition, the Civil Code expressly requires, as an essential condition for the validity of a contract, the existence of a lawful cause. Therefore, for example, in an onerous contract, the cause of the party’s obligation is the reciprocal obligation of the other party.
4.1.6. The Civil Code covers, in relevant places, the concepts of mistake, supervening impossibility, frustration and revision of contracts, contractual liability, forms of breach of contract and remedies. In addition to general principles of contracts, the Code also provides for particular contracts such as sales, loans, lease, deposit, etc.
4.2.1. Specifically, sales are governed by the Civil Code in its articles 1122 to 1163, the Commercial Code, articles 191 to 220 and supplementary legislation.
4.2.2. Pursuant to article 1.122 of the Civil Code, a contract of sale is one, whereby:
" ... one party agrees to transfer title to specified goods in consideration of payment by the other party of a certain price in money."
4.2.3. Moreover, the contract becomes binding, in accordance with article 1.126, as soon as the parties agree on the goods and the price. The determination of the price may be left to third parties or to market quotations at a specified time and place (article 1.124).
4.2.4. The transfer of title, as a general rule, is effected upon delivery, actual or constructive. However, where the sale is made subject to the acceptance by the purchaser, title does not pass with delivery, and the purchaser holds the goods as bailee until he manifests his acceptance thereof, or the stipulated period for such manifestation expires.
4.2.5. A sale by sample implies a warranty of quality corresponding to sample. A sale of goods, which are customarily sampled, tested, weighed or measured before acceptance will be considered a sale to the satisfaction of the purchaser.
4.2.6. The Commercial Code governs sales made with the intent on the part of the purchaser to resell or rent the goods for profit, where one of the parties to the sale is a merchant, or with the intent to use them as supplies in his business. The Civil Code recognizes a conditional sales contract wherein title does not pass until performance of the condition, and besides sales by sample, the code recognizes a sale by description of goods of standard qualities.
5. Choice of Forum, Choice of Law, Enforceability and Foreign Judgements
5.1. Choice of Forum
5.1.2. The choice of a foreign Court in an agreement is valid in Brazil, but it does not exclude the jurisdiction of the Brazilian Courts to judge any disputes arising therefrom, because Brazilian Courts understand that there is concurrent jurisdiction in connection with certain circumstances. In this respect:
(i) Article 12 of the Law of Introduction to the Brazilian Civil Code ("LICC") determines that the Brazilian Courts have jurisdiction over defendants domiciled in Brazil and on disputes resulting from obligations to be performed in Brazil;
(ii) Likewise, Article 88 of the Brazilian Civil Procedure Code determines, "in verbis":
"Art. 88. The Brazilian authority is competent when:
I - the defendant, whatever the nationality, is domiciled in Brazil;
II - the obligation is to be performed in Brazil; or
III -the dispute arises from matters occurring or practised in Brazil.
Sole Paragraph. For the purposes of no. I above, the foreign legal entity having an agency, branch, or office in Brazil is presumed to be domiciled in Brazil."
5.2. Choice of Law
5.2.1. The election of foreign law to govern the provisions of an agreement is valid in Brazil provided it does not violate public policy. In this respect, Article 9 of the LICC, provides that disputes arising in connection with contractual obligations shall be governed by the law of the Country where the obligations are contracted. The obligations will be presumed to have been contracted:
(i) in the place of residence of the person proposing the contract (Article 9, 2nd paragraph of the LICC); and/or
(ii) in the place where the contract is proposed (Art. 1087, of the Brazilian Civil Code).
5.3.1. As a general rule, the obligations under an international contract can be enforced against one of its parties in Brazil, to the extent that:
(i) the execution, delivery and performance of the contract have been duly authorized by all necessary corporate acts;
(ii) the contract has been duly executed and delivered by the Brazilian legal entity;
(iii) the contract is legal, valid, binding and enforceable under the law governing the contract; and,
(iv) the relevant obligations are not contrary to Brazil's national sovereignty, public order or morality.
5.3.2. Article 135 of the Brazilian Civil Code determines that a private instrument signed by a debtor and two witnesses is proof of contractual obligations of any value. However, validity of contractual obligations against third parties depends on registration of the contract with a Public Register of Deeds and Documents.
5.3.3. In accordance with article 130 of the Law on Public Registration, contracts will be valid against third parties as of the date of their respective signatures, provided they are registered within twenty days of their execution. Contracts registered after this period, will be valid against third parties as of the day of their registration. This may cause a substantial impact for a creditor in the event the debtor becomes insolvent prior to registration of the relevant contract.
5.3.4. Signatures must be notarised and if an agreement is signed abroad, the notarisation must be recognised by the nearest Brazilian diplomatic division. Subsequently, instruments celebrated in a foreign language must be translated into Portuguese by sworn translators in Brazil.
5.4. Foreign Judgements
5.4.1. For a foreign judgement to be enforced in Brazil, it must be ratified by the Brazilian Federal Supreme Court pursuant to Articles 483 and 484 of the Code of Civil Procedure and Article 15 of the LICC. Ratification will be granted provided the following requirements are observed:
(i) the judgement must have been rendered by a judge duly vested with jurisdiction;
(ii) the defendant must have been properly summoned or have appeared before the court;
(iii) the judgement must be final as ratified by the local judicial court where the judgement was rendered;
(iv) the judgement must be legalized by a Brazilian Consulate in, or appropriate to, such jurisdiction and translated by a sworn translator in Brazil; and
(v) the judgement cannot violate Brazil’s national sovereignty, public order or morality.
5.4.2. With the advent of the "Arbitration Law", Law 9.307/96 of September 23, 1996, foreign arbitration awards will be recognized and executed in Brazil once ratified by the Federal Supreme Court, thereby dispensing with the previous necessity for ratification of the award by a judge in the country where the award was granted.
6. The Consumer Protection Code
6.1. The Consumer Protection Code protects and regulates consumer relations in Brazil. A consumer is defined in Article 2 as:
Sole Paragraph. - A group of persons even if indeterminable, which has intervened in consumer relations, shall be held equivalent to a consumer."
6.2. Supplier is defined in Article 3 as:
"Article 3. - Supplier is any individual or legal entity, either public or private, Brazilian or foreign, as well as depersonalized beings, that carry out activities for the production, assembly, creation, construction, transformation, importation, exportation, distribution or marketing of products or rendering of services.
Paragraph 1. - Product is any movable or immovable, material or immaterial asset.
Paragraph 2. - Service is any activity provided on the consumer market for considerations, including banking, financial, credit and insurance activities, except those arising out of labor relations."
6.3. Strict liability for the product and service fact is provided for in Article 12 as follows:
"Article 12 - The manufacturer, producer, and builder, either Brazilian or foreign, and the importers, are liable, independently of fault, for redress of damages caused to consumers by defects resulting from the design manufacture construction, assembly and erection, formulas, handling and making up, presentation or packing of their products, as well as for insufficient or inadequate information on the use and hazards thereof.
Paragraph 1. - A product is defective when it does not offer the safety rightfully expected of it, taking relevant circumstances into consideration, including:
I. - presentation of the product;
II. - use and hazards reasonably expected of it;
III. - the time when it was put into circulation.
Paragraph 2. - A product is not considered defective because another better quality product has been placed on the market.
Paragraph 3. - The manufacturer, builder, producer or importer will only not be held liable only if it proves:
I. - that it did not place the product on the market;
II. - that although it did place the product on the market there is no defect;
III. – that the sole fault is that of the consumer or of a third party."
6.4. The tradesman and service providers are also liable pursuant to Articles 13 and 14:
"Article 13. - The tradesman is likewise liable, pursuant to the preceding article, when:
I. - it was not possible to identify the manufacturer, builder, producer or importer;
II. - the product is supplied without clear identification of the manufacturer, producer, builder or importer;
III. - he does not adequately preserve perishable goods.
Sole Paragraph - The party making payment to the damaged party may exercise the right to recover against the other responsible parties, in accordance with their part in the cause of the damaging event.
Article 14. - The service supplier is liable, regardless of fault for redress of damages caused to consumers by defects relating to the rendering of the services, as well as for insufficient or inadequate information on the fruition and hazards thereof.
Paragraph 1. - The service is defective when it does not provide the safety the consumer may expect of it, taking the relevant circumstances into consideration, including:
I. - the manner in which it is provided;
II. - the result and hazards which may reasonably be expected of it;
III. - the time when it was provided.
Paragraph 2. - A service is not considered defective because of the use of new techniques.
Paragraph 3. - The supplier of the services will not be held liable only if it proves:
I. - that, having performed the service, there is no defect;
II. – that the sole fault lies on the consumer on third party.
Paragraph 4. - The personal liability of liberal professionals shall be determined by verification of fault."
6.5. With regard to offer, Article 30 provides:
"Article 30. - Any sufficiently correct information or publicity circulated in any way or by any means of communication, in connection with products and services offered or presented, binds the supplier who circulates or uses it, and is made part of any contract that may be later executed."
6.6. Distance sales are provided for in Article 33:
"Article 33. - In the case of an offer or sale by telephone or collect on delivery, the manufacturer's name and address shall be shown on the packaging, publicity and all printed matter used in the commercial transaction."
6.7. The Consumer Protection Code contains many provisions that regulate construction of contracts concerning the consumer relationship. We transcribe below articles 46 through 49 in view of their importance in this regard.
"Article 46. - Contracts regulating consumer relations shall not bind consumers if they are not given the opportunity to have prior cognizance of their content or if the respective instruments are worded in such a way as to hamper understanding of their meaning and scope.
Article 47. - Construction of contractual clauses shall be more favorable to the consumer.
Article 48. - Statements of volition in private writings, receipts and precontracts relating to consumer relations bind the supplier, allowing its specific performance, pursuant to Article 84 and paragraphs thereof.
Article 49. - The consumer may withdraw from a contract within seven days as from execution thereof or from the act of receipt of the product or service, in the event the contracting of the product and service supply occurs outside the commercial establishment, particularly by telephone or home delivery.
Sole Paragraph. - If the consumer exercises the right to retraction under this article, any amounts paid in any way whatsoever during the grace period shall be immediately returned, with monetary updating."
6.8. In connection with what is termed "abusive contractual clauses" the Consumer Code provides, in article 51:
"Article 51. - Contractual clauses, inter alia, are null and void by operation of law when relating to the supply of products and services that:
I. - prevent, exonerate or reduce the supplier's liability for imperfections of any kind whatsoever of the products and services or entail a waiver or disposal of rights. In consumer relations between the supplier and the legal entity consumer, indemnification may be limited in justifiable situations;
II. - deprive the consumer of the option of reimbursement of the amount already paid, in the events provided for herein;
III. - transfer liability to third parties;
IV. - establish obligations considered inequitable or abusive that places the consumer at an unreasonable disadvantage, or that are incompatible with good faith or equitable practice;
V. - (VETOED);
VI. - establish inversion of the burden of proof to the detriment of the consumer;
VII. - determine the compulsory use of arbitration;
VIII. - impose a representative to conclude or realize another legal transaction by the consumer;
IX. - leave the supplier with the option of concluding or not the contract, while obligating the consumer;
X. - permit the supplier to directly or indirectly vary the price in a unilateral manner;
XI. - authorize the supplier to cancel the contract unilaterally without conferring the same right on the consumer;
XII. - obligate the consumer to reimburse the charges for collection of its obligation, without the same entitlement being granted against the supplier;
XIII. - authorize the supplier to unilaterally modify the contents or quality of the contract, after conclusion thereof;
XIV. - infringe or allow for violation of environmental regulations;
XV. - are in contravention of the consumer protection system; and
XVI. - make possible the waiver of indemnification rights for needed improvements.
Paragraph 1. - Inter alia, unreasonableness is presumed in the case of an advantage that:
I. - offends the basic principles of the legal systems to which it belongs;
II - restricts basic rights or obligations inherent to the nature of the contract, so as to threaten the object thereof or contractual equilibrium;
III. - shows itself to be excessively onerous for the consumer, considering the nature and contents of the contract, the interests of the parties and other circumstances specific to the case.
Paragraph 2. - Nullity of an abusive contractual clause does not invalidate the contract, except when, despite efforts as to integration, the absence of such clause results in an excessive burden for any of the parties.
Paragraph 3. - (VETOED).
Paragraph 4. - Any consumer or entity representing the consumer may request that the Public Attorney's Office lodge the proper action to have the contractual clause that contravenes any provision hereof, or otherwise fails to ensure a fair equilibrium between rights and obligations of the parties, declared null and void."
6.9. "Adhesion contracts" are defined and regulated by the Consumer Protection Code, which provides in article 54 that:
"Article 54. - An adhesion contract is one where the clauses have been approved by the competent authorities or established unilaterally by the product or service supplier, without the consumer's being able to bargain or substantially modify the contents thereof.
Paragraph 1. - The inclusion of a clause in the standard form does not disqualify the contract from being an adhesion contract.
Paragraph 2. - Adhesion contracts may contain resolute clauses, provided that these are an alternative, with the consumer's being given the choice, with due regard for the provisions of Paragraph 2 of the previous articles.
Paragraph 3. - Written adhesion contracts will be worded clearly, and in easily visible manner, with legible characters, thereby facilitating their comprehension by the consumer.
Paragraph 4. - Clauses involving a limitation of consumer rights shall be drafted in an easily visible manner that can be immediately and easily comprehended.
Paragraph 5. - (VETOED)."
6.10. With regard to jurisdiction, the Consumer Code provides in Article 93 that:
"Except for the competency of the federal courts, local courts shall have the jurisdiction for the case:
I. In the jurisdiction of the place where the damage occurred or is expected to occur, when at a local level;
II.- In the jurisdiction of the Capital of the State or Federal District for damages at a national or regional level, the rules of the Code of Civil procedure being applicable in the event of concurrent jurisdiction..."
7. Taxation of Products and Services
7.1. Products and services are subject to a wide variety of taxes in Brazil ranging from the federal taxes to various state and municipal taxes (there are about 60 different taxes in Brazil). Some of the more relevant taxes are listed below:
(i) Import tax (I.I.): imposed on transactions of import of goods and calculated over CIF price. The tax rate on imported manufactured goods depends on the fiscal classification of the goods in the CNM – Common Nomenclature of Mercosul, which is based on International rule and listed in the CET- Common External Tariff, varying from 0% to 30%.
(ii) Tax on manufactured goods ("I.P.I."): due at the moment the manufactured goods leave the factory and calculated over its sales price. I.P.I. is a federal tax on consumption charged on industrial products at selective rates, which vary according to the class of products per the classification in the table included in the I.P.I. tax Law.
(iii) Export tax ("I.E."): imposed on transactions of export of goods in accordance with the prevailing Brazilian foreign trade policy. An industrialised product is considered as being a product resulting from any process which is classified as industrialisation, albeit partial, incomplete or intermediate; industrialisation can be defined as any operation which modifies the nature, function, finish, appearance or function of a product or places it in conditions to be consumed.
(iv) State Tax on the Circulation of Goods and Services ("ICMS"). This is a 'value-added' tax on the circulation of goods and services. The rate of tax is determined by each State and varies depending upon the destination of the goods and services. Thus, varying rates can exist if the goods circulate within the same state or outside the originating State.
(v) Services Tax ("ISS") is provided for in Article 156, IV of Brazilian Federal Constitution, which attributes the power to levy such tax to the municipalities. As opposed to the other taxes focused above, there is no national body of valid rules to deal with the subject. In fact, each municipality has its own regulation on the subject and because of that tax rates and the range of the services taxed may vary from one municipality to another
7.2. However, according to constitutional provisions, the basic legal regime of each tax should be outlined in federal legislation (Article 146, III of the Brazilian Constitution). In the case of ISS, it is Decree-law No. 406, dated December 31, 1968, that establishes that ISS will be due by virtue of the rendering of any services (except for services under a labour contract) listed in federal legislation.
8. Telecommunications and Internet Regulation
8.1. In 1964, the Brazilian government created the National Telecommunications Systems, uniting the elements of a system that had been inefficient and obsolete. Until relatively recently, most of the state monopoly of the telecommunications sector has been exercised by subsidiaries of "TELEBRÁS", the state controlled communications holding. Local telephone services have been rendered by 28 regional telephone subsidiaries of TELEBRÁS. Empresa Brasileira de Telecomunicações ("EMBRATEL"), which is linked to the TELEBRÁS structure, has been supplying domestic and international long-distance services, telegraphy, maritime communications and data transmission.
8.1.1. The state-controlled monopoly was ended with the publication of Constitutional Amendment 08/95 and the privatisation of the sector started with concessions granted in relation to mobile phone, Band B in accordance with Law 9295 of July 19, 1996. In 1997, the Brazilian Congress approved new laws, specifically a new Telecommunications Code, and created a competitive telecommunications model. The new code updated existing legislation and established rules to create an independent regulatory agency, the National Telecommunications Agency ("ANATEL").
8.1.2. Ruling n. 172, issued by the Ministry of Communications on May 28, 1998, approved the general conditions for the privatisation of the TELEBRÁS System in accordance with the stipulation set forth in Decree n. 2.546 of April 14, 1998 and Law 9.472 of July 16, 1997 ("General Telecommunications Law") and on July 29, 1998 TELEBRAS was privatized.
8.2. Brazil entered the Internet in 1988 when the academic community in São Paulo and Rio de Janeiro successfully connected the computers and networks of the universities and research centers to the United States. With the growing demand for Internet connection in the academic community in 1989, the Ministry of Science and Technology created the National Research Network ("NRN") for the purpose of establishing and maintaining a national backbone that would integrate the state networks and permit the Internet to reach the interior of the country.
8.2.1. The NRN established a long distance network based upon the Transmission Control Protocol/Internet Protocol ("PTCI/IP") technology thereby adhering to standards for the flow of information across networks and allowing for the identification of users through Internet addresses or domain names. By connection with this network, World Wide Web (WWW) services could be accessed by the academic communities. Since that time the Internet has grown into one of the most promising markets for value-added services in Brazil.
8.3. Telecommunication services in Brazil are regulated by federal law, some of which include the following:
(i) Decree n. 52.795 of 31.10.63 regulating Broadcasting Services;
(ii) Law n. 8.977 of 06.01.95 regulating Cable Television Services;
(iii) Decree n. 2197 of 08.04.96 regulating Limited Services;
(iv) Law n. 9.295 of 19.07.96 regulating Telecommunications Services and their Organization and Regulatory Agency;
(v) Decree n. 2056 of 04.11.96 regulating Mobile Telephone Services;
(vi) Decree n. 2.195 of 04.08.97 regulating Satellite telecommunications-Signal transportation Services;
(vii) Decree n. 2.198 of 08.04.97 regulating Restricted Public Services;
(viii) Law n. 9.472 of 16.07.97 regulating the Organization of Telecommunications Services, the creation and the Operation of a Regulatory Agency;
(ix) Decree n. 2206 of 14.04.97 regulating Cable TV Service, and
(x) Decree n. 2196 of 08.04.97 regulating Special Services.
8.3.1. Law n. 9472/97 provides valuable definitions in articles 60 and 61 as follows:
"Article 60. Telecommunication service is a set of activities that permit the supply of telecommunications.
Paragraph 1. Telecommunications is the transmission, emission or reception, by wire, radio, optical means or any other electromagnetic process, of symbols, characters, signals, writing, images, sounds or information of any nature.
Paragraph 2. Telecommunications station is the set of equipment or apparatus, devices and other means necessary to carry out telecommunications, its accessories and peripherals and, whenever the case, the installations holding and complementing the same, including portable terminals.
Article 61. Value added service is the activity that adds value to the telecommunications service that supports the same, and with which new features related to the access, storage, presentation, handling or recovery of information are not mistaken.
Paragraph 1. Value added service is not a telecommunications service, however, the provider thereof is classified as user of the telecommunication service providing support thereto, with the rights and obligations inherent to this condition.
Paragraph 2. Access to the utilisation of telecommunications service networks for rendering value added service is assured to interested parties, for which the Agency shall regulate the conditions as well as organize the relationship between the same and the telecommunications service providers."
8.4. With regard to the Internet (a value added service), the principal legislation is listed below:
- Interministerial Norm MCT/MC n. 147 of May 31, 1995 – Creates the Brazilian Internet Management Committee ("CG").
- Administrative Ruling MCT n. 148 of May 31, 1995 – Approves Rule 004/95 – Use of the Public Telecommunications Network for INTERNET access.
- Resolution CG n. 2 of April 15, 1998 – Gives jurisdiction to FAPESP to effect the activities of registration of domain name, distribution of IPS addresses and the maintenance of the electronic network - INTERNET.
- Resolution CG n. 1 of April 15, 1998 – Rules on the registration of domain names for INTERNET connections, with the objective of providing for information and services.
8.4.1. MCT Rule 004/95 regulates the use of the Public Telecommunications Network for the providing and use of Internet Connection Services and applies to Public Telecommunications Service Explorers ("EESPT") and Providers and Users of the Internet Connection Services.
8.4.2. Internet is defined in article 3, letter a, as: a generic name that designates the group of networks, means of transmission and commutation, routers, equipment and protocols necessary to the communication between computers, as well as the software and the data contained in the computers;
8.4.3. Value Added Service is defined as the service that is added to a pre-existing telecommunications service, means or resources that create new specific uses or new productive activities related to the access, storage, movement and recuperation of information;
8.4.4. Internet Service Connection ("SCI") is defined in article 3, letter c as: the generic name that designates the Value Added Service that makes possible Internet access by Users and Providers of Information Services.
8.4.5. Moreover, an Internet Connection Service Provider ("PSCI") is the entity that provides Internet Connection Services. An Information Service Provider ("ISP") is the entity that possesses information of interest and places it on the Internet by means of an Internet Service Connection.
8.4.6. Point of Connection to Internet: is the point by which the SCI connects to the Internet;
8.4.7. Internet Coordinator: is the generic name that designates the agencies responsible for the standardization, normalization, administration, control, attributer of addresses, management of domains and other correlated activities related to Internet.
8.4.8. Internet Connection Service is considered by MCT Rule 004/95 to consist of:
(i) the equipment necessary for the routing, storage and forwarding of information, and of the software and hardware necessary for the provider to implement Internet protocols and manage and administer the services;
(ii) the routines for the administration of the Internet connections (passwords, addresses and Internet dominions);
(iii) the software provided by the PSCI such as electronic mail, access to remote computers, file transfer, access to data banks, access to directories, and other correlates- security control mechanisms and others;
(iv) the data files, banks and other information provided by the PSCI;
(v) the hardware necessary for the provider to supply, maintain, manage and administer the software and the specific files of letters b, c, and d of this subitem;
(vi) other specific hardware and software used by the PSCI.
8.4.9. The use of the Public Telecommunications Network by Providers and Users of Internet Connection Services is provided for in Article 5 which basically states that the use of the Public Telecommunications Network for the providing and use of Internet Connection Services shall be effected by means of the Telecommunications Services rendered by the EESPTs.
8.4.10. Providers are allowed to choose any of the Telecommunications Services rendered by the EESPTs to constitute its own service.
8.4.11. The Public Telecommunications Network resources shall be provided to all PSCI’s who request them without exclusivity in any point of the nation and may be also used to connect SCIs to the Internet abroad or to interconnect SCIs to different providers.
8.4.12. Users of Internet Connection Services may choose access to the SCI by any means of the Public Telecommunications Network at its disposal.
8.4.13. The classification of Internet services as a value-added service rather than telecommunications services is of crucial importance from the point of view of applicable law, authorization, permits and also for tax purposes since value added services are exempt from certain excise tax incident on telecommunications services.
8.4.14. Further in regard to Internet regulation, Resolution CG n. 001 of April 15, 1998 of the Coordinator of the Management Committee of Internet provides for registration of domain names.
8.4.15. Article 1 states that:
"The Registration of the domain name will adopt as a criteria the principle that the right to the domain name will be conferred to the first applicant that satisfies, at the time of application, the requirements for the registration of the name, as per the conditions described in this Resolution and its Annexes."
8.4.16. Article 2 provides on who can register:
"The registration of the domain name is permitted solely to entities that are legally established in the country, liberal professionals and natural persons, as per Annex II hereto."
8.4.17. The categories under which the domain names are registered are described in Annex II, First Level Domains ("DFLs"), as well as the documentation required. Of note, under the domain .br are :
I - Group of Legal Entities
.br, directed to institutions of higher learning and research, which are inscribed directly under this domain; this "implicit" DFL is equivalent to the North American ".edu". There is the obligation to present proof of enrollment before the Taxpayers Registry of the Ministry of the Treasury ("CNPJ") and the proof of the specific activity.
.com, directed to commercial institutions. There is the obligation of presenting the CNPJ;
.org., directed to non-governmental non-profit institution. There is the obligation to present documentation, which proves the nature of the institution and the CNPJ. In special cases, the obligation to present the CNPJ for this DFL can be dispensed.
.g12 directed to educational institution of first and second level. There is the requirement to present the CNPJ.
.net. – directed exclusively to providers of physical means of communication, legally accredited for the rendering of public telecommunications services. There is the obligation to prove this activity by specific documentation and the CNPJ;
.mil directed to the military organs;
.gov directed to the Brazilian government, that is, the Three Powers of the Republic (Executive, Legislative and Judiciary), the Federal Public Ministry, States and Federal District. Except for the organs of the federal sphere, the sign of the corresponding State (ex. al.gov.br, am.gov.br) etc. There is the possibility that the CNPJ requirement can be dispensed if justified.
.art directed to institutions dedicated to art, (crafts) and related. There is the CNPJ obligation that can be dispensed with if justified.
.esp directed to institutions dedicated to sports in general. There is the CNPJ obligation that can be dispensed if justified.
.ind directed to institution of industrial activity. There is the requirement to present the CNPJ.
.inf directed to the providers of information. There is the requirement to present the CNPJ.
.psi directed to Internet providers of services in general. There is the CNPJ obligation.
.rec addressed to institution related to entertainment and games in general. There is the CNPJ obligation.
.tmp directed to temporarily events of short duration, such as fairs, workshops, etc. The CNPJ requirement in this category is dispensed.
.etc addressed to institution not indicated in the above categories There is the CNPJ obligation.
8.4.18. Resolution CG 001/98 also provides inter alia on the policy for the number of domains, responsibility for misrepresentation, cancellation and fees.
8.4.19. Resolution CG 002/98 establishes the entity that shall register domain names as being the Foundation for Assistance to Research of the State of São Paulo - FAPESP. Pursuant to Article 1 the CG determines:
"To give FAPESP jurisdiction to effect activities of registration of domain names, distribution of IPS addresses and its maintenance in the INTERNET network.
§ 1º The acts already practiced by FAPESP related to activities mentioned in article 1 above are hereby legalized.
§ 2º The conditions for the registration and cancellation of the Domain Names to be followed by FAPESP will observe the rules established in Resolution CG n.. 001 of April 15, 1998.
Art. 2º For the performance of the activities foreseen in article 1, FAPESP will charge amounts compatible with the ones internationally in force, previously approved by CG."
8.4.20. In a controversial court decision of the first instance, the 16th Civil Court of Curitiba, State of Parana, ordered that the registration of a domain name before FAPESP, which was identical to a trademark registered before the Brazilian Institute of Industrial Property ("INPI") be suspended and title over the domain name given to the trade mark owner.
8.5. Recently, a bill of law was introduced to the Brazilian Congress regulating electronic commerce, electronic documents and digital signatures. Denominated Bill of Law n. 1589 of August 18, 1999, the draft legislation was originally presented by the Brazilian Bar Association, São Paulo Section, and incorporated elements of the major existing legislation applicable in the European Community as well as the United States.
8.5.1. Of note, it is important to point out that Bill of Law n. 1589/99 provides inter alia for consumer protection of purchases effected via electronic means under the Consumer Protection Code as well as for the limits on liability of access providers. In this regard Article 9 provides (our translation):
"Article 9. The intermediary who supplies services of connection or transmission of information, to a seller or buyer, shall not be liable for the content of the information transmitted."
8.5.2. Moreover Article 11 states that the intermediary, transmitter or storer shall not be obliged to scrutinize or monitor the content of the information transmitted or stored. However, if the intermediary knows of a criminal offense, and does not take the appropriate measures to suspend or interrupt the relevant information, it is answerable for damages and criminally co-responsible.
8.5.3. As concerns the legal efficacy of electronic documents, Article 14 provides:
"Art. 14. The electronic document shall be considered original when signed by its author by means of a public key cryptographic system."
8.5.4. Moreover, the declarations appearing on a digitally signed electronic document are presumed to be true provided that the digital signature meets certain pre-requisites.
8.5.5. It is important to point out that the bill of law took into consideration the principal that traditional concepts should not simply be put aside but rather adjusted to the reality of electronic commerce, thereby providing greater security to the parties inclusive with regard to future decisions handed down by the Judiciary.
8.5.6. However, although the bill does claim to respect the transnational characteristic of electronic commerce by recognizing the legality of foreign certifications on equal footing with the domestic certificate, it does place the domestic party at a considerable competitive disadvantage with respect to common law jurisdictions, by requiring authentication by public notaries and validation by the courts for validity of digital documents before third parties.
8.5.7. It is expected that the bill will be voted by Congress during the year 2000 session and may be enacted into law as early as 2001.
9. Comments to Questions Posed in "Requests for Comments
9.1. What is the jurisdictional relevance of the presence on a state’s territory of the Internet network infrastructure, such as a server?
(To the extent that courts are comfortable with traditional notions of territorial power as the basis of either or both adjudicatory and prescriptive jurisdiction, there is a great temptation to assert jurisdiction over the owner of the Internet infrastructure found within the state’s borders. However, when such jurisdiction is asserted based on the content of the information transmitted through the network, the legal responsibility of the server for the content is not clear. If liability is created because adjudicatory jurisdiction is thought to be apparent, it is arguable that "the tail is wagging the dog." Historically, changes in substantive law have propelled changes in jurisdictional understanding. For example, when privity of contract was required in order for a consumer to sue a manufacturer, parts manufacturers were ordinarily not liable to consumers. Thus, no jurisdictional construct was necessary to enable a consumer to sue them conveniently, i.e. at the consumer’s home. After the privity requirement was abandoned, the parts manufacturer’s liability was theoretical rather than real until the law developed the notion of a "stream of commerce" which permitted the manufacturer to be sued in the forum in which the final product was sold to and injured a consumer. Ease of jurisdictional assertion, on the other hand, would seem as a matter of policy to be questionable reason to expand liability).
COMMENTS: At the present time, there is no specific legislation regulating the liability of an Internet access provider. Therefore, in the event of a dispute, relevant statutes from the Consumer Protection Code or relevant legislation would most likely be applicable. We note however, that Bill of Law n. 1589/99 does expressly exclude Internet access providers from liability under certain conditions as mentioned in item 8 above..
9.2. What is the jurisdictional relevance of maintaining a web site?
( A web site may be accessed from anywhere in the world and, at least in light of today’s technology, there is little that its author can effectively do to prevent it from being seen anywhere. Does that mean that the author has "contacted" any state in which the site could be or is accessed? Does it matter whether the web site author has "pushed" her message to a targeted audience or whether the reader must "pull" the site to his own computer? Does it matter if the author appears to have focused on a particular geographical region by her use of content or language on the web site?)
COMMENTS: As was seen in item 8 above, under Brazilian regulations, in order to register a Domain Name in Brazil, a legal entity must be established in Brazil pursuant to Brazilian laws and enrolled before the Taxpayer’s Registry ("CNPJ") . Therefore, pursuant to territorial principles, such factors would naturally target the activities of the legal entity by the laws of Brazil and jurisdiction will be found where the entity’s Internet site is established.
9.3. If a web site author cannot prevent access to its site from any country, what is the jurisdictional effect of a geographical disclaimer on the site?
( Can the author’s attempt to screen certain viewers from actively participating in the site affect the jurisdictional consequences of the site?)
COMMENTS: In our opinion, a geographical disclaimer could be contractually effective to diminish liability exposure ex partes, but would not override public policy issues nor exclude liability arising from the same.
9.4. If parties to a transaction agree at the outset that the law of a given state will apply to any future disputes or that any future dispute will be litigated in the courts of a chosen state, is that agreement enforceable?
(Does it matter if one of the parties is a consumer? Does it matter that Internet technology makes it possible to inform the consumer in whatever degree of detail is appropriate of the substance of the law thus chosen and to permit her to compare that law to other laws chosen by other potential contracting partners?)
COMMENTS: As was seen in item 5.2 above, the election of foreign law to govern the provisions of an agreement is valid in Brazil provided it does not violate public policy. However, consumers are assured of additional protection in the case of abusive clauses or so called adhesion contracts. Therefore, it could be construed that the "unreasonable" choice of foreign law could provide a consumer with a defense in this regard.
9.5. Is it possible to identify a state in which transactions occur?
( For example, if an individual gambles online from Minnesota with a web site located in Nevada, does the transaction occur in Minnesota, in Nevada, or in both or neither? If a doctor in Maine diagnoses a patient in Illinois based on medical records sent to her electronically, is she practicing medicine in Maine, in Illinois, or in both?
If identifying the state in which a transaction occurs is problematic, the location of parties involved in the transaction becomes even more critical than it currently is. How can one party determine the location of another party? May a party reasonably rely on information about location provided by another party? Is the relevant location where the party is at the moment he utilizes the Internet, where he is domiciled, or somewhere else? )
COMMENTS: As was seen in item 6 above, the Consumer Protection Code makes it imperative that the service or product provider inform consumers correctly of all relevant product or service information including providers name and address. By analogy then to cyberspace situations, in a consumer relationship, correct information should be supplied to enable the consumer to identify and locate the supplier if required. Otherwise the consumer party could argue bad faith.In a normal scenario therefore, one should take the necessary steps to ascertain the bona fide nature of the contract into which one is entering. Moreover, as mentioned in item 5.2.1. above, pursuant to Article 9 of the LICC, obligations will be presumed to have been contracted in the place of the residence of the person proposing the contract and/or the place where the contract is proposed. However, this can be a complex question because of the different "topographies" arising from the structures of the computers by which communications take place. Recognising the limited resources of consumers, the Consumer Protection Code provides in Article 101 that a consumer may sue in his/her own domicile.
9.6. Are analogies to prior technology, such as print media, telephone, television, radio or satellite transmissions, possible and useful?
COMMENTS: Under Brazilian law, in the absence of specific legislation or when a statute is omissive, a judge may employ analogy as a hermeneutic device to arrive at judgement. Accordingly, analogies to prior technologies such as print media, facsimile transmission and others, may be applicable, particularly in connection with issues such as the validity of digital signatures and acceptable proof of electronic contracts. Also as was seen in item 6 above, the Consumer Protection Code does contain certain specific provisions for distance sales, which could be applicable to transactions regarding electronic commerce. It is hoped that with the advent of specific legislation regulating electronic commerce, digital signatures and electronic documents, that there will be less need for recourse to analogy based upon prior technologies. This would add certainty as to the applicable rules.
9.7. If a plaintiff obtains a judgment in one country against a defendant with no assets there, where and how can that judgement be enforced?
( In one sense, this question has been around as long as law suits against non-present defendants have been permitted. But again, technology increases the potential that an answer will be necessary and may itself provide creative remedies).
COMMENTS: Foreign judgements are enforceable in Brazil provided that they are ratified by the Brazilian Federal Supreme Court in accordance with the provisions set forth in Articles 483 and 484 of the Code of Civil Procedure and Article 15 of the LICC. Therefore, Brazilian courts would be in a position to enforce judgements of other States against defendants domiciled in Brazil. Clearly execution would only be possible if the defendant had assets in the country
9.8. Does the Internet change the basis upon which commerce should be taxed?
COMMENTS: From a Brazilian perspective, the taxation of digital delivery of merchandise and services could present certain problems since virtual objects would appear to constitute different categories from products and services physically delivered. For example, the downloading of a CD recording from the site of a supplier could either be understood to be a purchase of merchandise subject to ICMS state excise tax or a service subject to Municipal ISS service taxes. Moreover, it was questioned whether Internet access providers should be taxed on the basis of telecommunications services subject to state ICMS excise tax or value-added Internet services subject to Municipal ISS tax. Furthermore, the use of e-cash as a means of payment in on-line commerce may cause difficulties in establishing the competent government to institute and collect taxes relative to business transactions. In these cases, direct or indirect taxation may become very complicated, principally when considering the necessity of avoiding double taxation.
However, when the Internet is used as a simple communication device between buyer and seller, the difficulties of taxation determination as to the operation are more easily resolved and would not appear to constitute obstacles.
10. Final Considerations
10.1. At present, there is no significant legislation in Brazil governing the Internet, although it is clear that much general legislation is applicable, such as the Consumer Protection Code. Furthermore, with exception of several domain name /trademark conflicts, there has not yet been any significant court cases concerning the Internet involving jurisdictional issues.
10.2. Notwithstanding, the multi-jurisdictional aspects of the Internet, it would appear that disputes arising therefrom would be susceptible to fairly coherent resolution under existing jurisdictional doctrine. Moreover, despite the complexities raised by taxation or intellectual property issues, the same would not appear to be made particularly more difficult by the digital medium as such.
10.3. Finally, we would agree with the ABA Jurisdiction Projects assertion that the concept of country sovereignty characterized as supremacy within a defined geographical territory and independent of other legal systems is being challenged by the Internet. Such would appear to signal that geographical boundaries alone are inappropriate and archaic concepts for a modern electronic digital age and that more sophisticated concepts of jurisdiction shall have to be adopted.
We trust the above has been of use in providing you with basic jurisdictional information from a Brazilian perspective and we remain available for any further clarification necessary in this regard.
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