A aplicação do direito material estrangeiro em contratos pelos tribunais de justiça brasileiros: uma análise sobre dez anos de jurisprudência (2004-2013)

Abstract

This paper deals with the application of foreign law, on issues of conflicts of law in contracts matters. The initial sample gathered more than 1.000 decisions containing the term “private international law”, extracted from the Brazilian State Courts of Appeal from 2004-2013. After the application of several filters, the final sample contained 17 decisions. The first assessment made, after the analysis, is that 17 decisions is almost nothing once compared with the number of contract cases brought to the Judiciary in the analyzed period. Crucially, however, is that in 4 out of 7 cases (57%) on which, as the result of the conflict of law, foreign law came up as the applicable law, the Courts applied foreign law. The “application of foreign law” should be understand with caution, though. The application was, most of the times, a byname for the presumption of regularity and legality of acts celebrated abroad and/or the rebuttal of the application of domestic law. The application of foreign law, with the due scrutiny of the content of foreign law, was not found in the sample. The paper also reveals and debate methodological issues that should be taken into account in a sample containing conflicts of law.