The Brazilian Private international Law Bill Modernization Territoriality and Systemic Innovation

THE BRAZILIAN PRIVATE INTERNATIONAL LAW BILL: MODERNIZATION, TERRITORIALITY AND SYSTEMIC INNOVATION

On the morning of 4 December 2025, the draft bill of the new Brazilian Private International Law Act was delivered to President Luiz Inácio Lula da Silva by the working group responsible for its preparation, marking the conclusion of the technical phase of the project. The text represents the most extensive and ambitious reform of Brazilian private international law since the enactment of the Law of Introduction to the Rules of Brazilian Law in 1942, opening the way for a modern and systematic codification of the field.

Approved by the Superior Court of Justice in October, the proposal is the result of a year of work by a commission composed of Justices Luis Felipe Salomão, Moura Ribeiro and Paulo Sérgio Domingues, as well as jurists and scholars with notable expertise in the subject. Its central goal was to consolidate, within a single normative framework, rules that have historically been scattered and formulated in a pre-digital context, and which no longer correspond to the complexity of contemporary transnational legal relations.

Among the topics of greatest practical and systemic relevance, two central axes stand out: (i) the enforcement, within Brazilian territory, of decisions issued by foreign authorities, a fundamental discipline for the efficient functioning of global networks of trade, investment and movement of persons; and (ii) the normative reorganization of intellectual property rights, traditionally subject to regimes of strict territoriality, automatic protection and hybrid systems of registration and enforcement against infringement. By addressing these dimensions in an integrated and technically refined manner, the draft signals a decisive move toward aligning Brazil with the main international trends in legal certainty, predictability and regulatory interoperability.

This article examines these two axes with particular attention to the ways in which the proposal reconfigures them, identifying their potential impacts on transnational litigation, on the country’s capacity to attract investment, and on its integration into global innovation chains. The analysis shows that the proposal not only updates the legislative techniques applicable to international private relations, but also reshapes Brazil’s position in comparative perspective, bringing it closer to jurisdictions that have traditionally served as benchmarks in the legal governance of cross-border flows.

1. THE BRAZILIAN PRIVATE INTERNATIONAL LAW PROJECT AND THE MODERNIZATION OF THE SYSTEM

In summary, the Private International Law Bill proposes the complete repeal of Articles 7 to 19 of the 1942 Law of Introduction to Brazilian Law, replacing them with a systematic framework inspired by major contemporary codifications.

For the first time, the draft clearly and expressly regulates the criteria for international jurisdiction of Brazilian courts, filling a historical gap in the Law of Introduction, whose silence forced doctrine and case law to develop ad hoc solutions. The legislative choice in Brazil follows a trend already consolidated in the European Union since the Brussels I Regulation (recast), although with a less detailed and more open formulation, approaching the style of the Hague Principles on Choice of Law, which rely on flexible criteria and prioritization of the effective connection with the competent forum.

The regulation of the application of foreign law is one of the most sensitive and innovative aspects of the bill. While the Law of Introduction provided a minimal regime, leaving broad room for judicial practice to define how foreign law should be proven, its reach, and its limits, the draft bill establishes detailed rules on the presumption of judicial knowledge, means of proof, integration and interpretation, in addition to reinforcing the prohibition of fraud to the law and the boundaries of public policy. This formulation echoes debates present both in the Hague Principles and in the European Union’s Rome I Regulation.

Finally, the set of conflict-of-law rules represents a qualitative leap compared with the LINDB, especially through the adoption of more refined techniques for determining the applicable law. The bill incorporates connecting factors that reflect the international movement away from nationality toward domicile, habitual residence or the centre of gravity of the legal relationship, aligning itself with solutions adopted in the European Union’s Rome II Regulation on non-contractual obligations, as well as in recent Chilean and Mexican reforms.

By replacing the rigid and fragmented structure of the LINDB with an integrated normative body, the draft bill projects a Brazilian private international law capable of engaging with the contemporary global landscape and responding more effectively to the challenges of transnational legal relations.

2. THE ENFORCEMENT OF FOREIGN JUDGMENTS: BETWEEN COOPERATIVE OPENNESS AND THE SAFEGUARD OF PUBLIC POLICY

The reform proposed by the Private International Law Bill represents a significant shift in the way the Brazilian legal system engages with judicial decisions originating abroad. In a context of growing interdependence among legal systems and intensifying transnational relations, the Bill seeks to modernize and rationalize the mechanisms for recognition, cooperation and enforcement of foreign decisions, bringing Brazil closer to international trends that promote the freer circulation of judgments and the strengthening of judicial cooperation.

Within this framework, the Bill revises the role of the Superior Court of Justice in reviewing foreign decisions, gives new density to the regime governing provisional enforcement during the homologation process, and redefines the function of the international public policy clause in light of constitutional and human rights parameters. The result is a more permeable, functional and value-oriented system, one that moves away from a defensive posture and towards cooperative models adopted by jurisdictions that occupy central positions in global trade and capital flows.

To begin with, the Bill reaffirms the institutional logic currently enshrined in the Federal Constitution and in ordinary legislation by maintaining the competence of the Superior Court of Justice to homologate foreign decisions that necessarily require the intervention of the Brazilian judiciary. This reflects a choice for institutional continuity, preserving the centralization of the screening of foreign decisions in a single high court, thereby contributing to the uniformity of criteria and the predictability of the system.

The innovation lies in how the very filter governing access of foreign decisions to the domestic legal order is redesigned. Homologation is expressly waived for decisions of a purely declaratory nature, provided they do not seriously contravene Brazilian international public policy and do not require compliance with obligations to give, to do, or not to do. In practical terms, this tends to reduce transaction costs, shorten timeframes and avoid unnecessary judicialization in situations whose nature—lacking coercive or executory consequences—is essentially informational or probative.

Second, in addressing international legal cooperation, the Bill broadly admits the use of technological means, direct communication between authorities, and other contemporary techniques of judicial cooperation, provided Brazilian international public policy and applicable treaties are respected. By expressly endorsing the use of technological mechanisms and direct judicial communications, the Bill aligns itself with the practices encouraged by the Hague Conference on Private International Law, strengthening a model of cooperation that is more agile, less bureaucratic, and more responsive to the demands of transnational litigation.

Combined with a more rationalized homologation filter, it fosters an environment in which the circulation of decisions and information between foreign jurisdictions and Brazil is less defensive and more cooperative.

Taken together, these elements reveal a paradigm shift: the Bill tends to strengthen a posture of deference toward foreign decisions, treating State intervention as an exception to be triggered only in cases of serious violations of international public policy. The underlying logic is that in a scenario of interdependent legal orders, mutual trust and reciprocal recognition of judgments are essential conditions for the legal certainty of transnational relations and for Brazil’s competitive integration into international trade and investment flows.

Even more disruptive, the Bill breaks with a long-standing tradition of caution in Brazilian case law regarding the possibility of granting enforceable effect to foreign decisions before the formal conclusion of the homologation process. This is because, during the homologation proceedings, the Brazilian judicial authority may grant urgent relief and perform acts of provisional enforcement, subject to Brazilian legislation, treaties in force, and the internal rules of the Superior Court of Justice.

In practice, the Bill allows the homologating court not to confine itself to a purely formal and retrospective review, but to act functionally to preserve the usefulness of the foreign decision while assessing its compatibility with domestic law. The logic mirrors that of provisional measures in domestic civil procedure: where there is concrete risk of harm or of rendering the final decision futile, it is justified to provisionally anticipate effects—albeit on a provisional and reversible basis—until the definitive assessment is completed.

This possibility is particularly important in matters of international commerce. Delay in producing effects within Brazilian territory can transform a judicial victory into a merely symbolic triumph. By admitting provisional enforcement, the Bill seeks to reconcile the supervisory nature of homologation with the need for swift responses in highly dynamic economic contexts.

Naturally, this openness does not eliminate the compatibility review vis-à-vis international public policy, nor does it preclude the possibility of later revocation or modulation of the provisionally granted effects. What changes is the default position: instead of requiring the foreign decision to remain ineffective until the end of the homologation process, the system now allows it to produce effects—under supervision and with reversibility—whenever delay could frustrate the very purpose of the relief granted.

Third, the Bill redesigns the international public policy clause. Unlike more open and indeterminate treatments, the Bill gives this clause a substantive and normatively guided character by establishing that foreign laws, public or private acts, and judicial or extrajudicial decisions that produce results potentially contrary to Brazilian international public policy shall have no effect in Brazil. It further exemplifies its core: “serious violations of fundamental principles enshrined in the Constitution or in international human rights treaties ratified by Brazil.”

This approach moves away from a vague and purely formal conception of public policy and reconstructs it as a concept anchored in constitutional values and in Brazil’s international human rights commitments. Instead of serving as an open-ended clause permitting broad and discretionary refusal of foreign decisions, public policy now operates as a qualified exception, applicable only in cases of serious violations of objectively identifiable fundamental principles.

3. INTELLECTUAL PROPERTY IN THE DRAFT BILL: TERRITORIALITY, CONNECTING FACTORS AND TRANSNATIONAL TORTS

It is worth noting that the draft bill introduces into Brazilian law a conflict-of-laws rule specifically designed for intellectual property, structured around three axes: copyright, industrial property, and related torts — unfair competition and misappropriation of trade secrets. This tripartition reflects an effort to harmonize with the international IP system, which distinguishes between copyright, generally not subject to registration; industrial property rights, necessarily territorial and dependent on formal grant procedures; and relational torts that lie at the frontier between competition law and innovation protection.

The normative technique aligns both with the Berne Convention and the TRIPS Agreement — which enshrine territoriality and the autonomy of national legislations — and with the European model embodied in Article 8 of the Rome II Regulation, whose central reference is the lex loci protectionis, understood as the law of the State whose protection is invoked.

With respect to copyright, the draft bill introduces a distinctive solution by privileging the criterion of the place of publication or dissemination of the work, approaching—although not fully adopting—the “country of origin” logic set out in the Berne Convention. Unlike the more widespread standard, which applies the lex loci protectionis to all aspects of protection and infringement, the Brazilian text shifts the connecting factor to the act of making the work available to the public. This reveals a sensitivity to digital transformations and to the deterritorialized nature of contemporary content circulation.

On global platforms, simultaneous transmissions, or works primarily published online, determining the place of protection under the classical rule can generate fragmentation and uncertainty, whereas the publication criterion offers greater predictability for rights holders, users, and intermediaries. Still, this solution is not without tensions, especially in cases of simultaneous multinational publication — an increasingly common scenario in audiovisual and publishing markets.

A functional interpretation of the rule, aligned with comparative scholarship and with WIPO Recommendations on digital works, will require interpreters to identify the territory with the most significant connection to the work, avoiding artificial multiplication of applicable laws. This normative choice departs from the rigid model of Rome II but converges with contemporary Latin American doctrine, which favors more flexible connecting factors compatible with the phenomenon of transnational circulation.

In the realm of industrial property, the draft bill unequivocally reaffirms the principle of territoriality: any dispute involving industrial property rights registered or pending registration in Brazil shall be governed exclusively by Brazilian law. This solution, in addition to being consistent with the international tradition consolidated by TRIPS and the Paris Convention, aligns with the Rome II Regulation, which also subjects infringements of industrial property rights to the law of the State of registration.

The clarity of the Brazilian rule carries important practical implications: actions involving patent infringement, misuse of well-known trademarks, parallel importation disputes, or invalidity claims will necessarily be decided under national law, regardless of underlying international contracts or the nationality of the parties. By excluding external normative influence over the scope of titles granted by the BRPTO, the draft bill adheres to a classical view of territoriality while still guaranteeing legal certainty.

Regarding related torts — unfair competition and trade secret misappropriation — the bill subjects them to the criterion of the place of damage, adopting a broad conception of locus damni, including damage occurring in multiple States. Choosing the place of damage as the connecting factor is appropriate for torts not subordinated to the strict logic of registration, such as parasitic competition, unlawful reverse engineering, misappropriation of know-how, irregular technology transfer, or the capture of sensitive data within global research and development chains.

The damage criterion is also consistent with international efforts to harmonize trade secret protection, particularly after the adoption of the European Directive 2016/943 and the principles of the Association Internationale pour la Protection de la Propriété Intellectuelle, which link the territoriality of protection to the actual economic impact of the violation. This articulation reinforces the internal coherence of the system: whereas copyright protection may require a criterion linked to the circulation of the work, and industrial property demands the territoriality of registration, related torts call for a functional connecting factor capable of capturing the cross-border dimensions of harm.

Compared with other systems, the draft bill positions Brazil closer to the European model in its treatment of torts, closer to the Paris Convention and TRIPS tradition for industrial property, and closer to Berne and WIPO trends in the copyright sphere. This plurality of techniques confirms that the proposal is not a mere transposition of foreign models; rather, it represents an attempt at normative synthesis capable of offering effective solutions in a regulatory environment increasingly characterized by simultaneity, digital circulation and overlapping jurisdictions.

4. FUTURE PERSPECTIVES

By establishing clear, systematic and coherent rules for industrial property, the draft bill positions Brazil as a more attractive State for investors, right holders and technology developers, consolidating a “pro-patent” vocation aligned with economies that compete for global innovation flows.

The new regime protects the country against disputes concerning the territorial “scope” of titles granted by the BRPTO, preventing foreign courts or external norms from interfering in the determination of the extent and limits of the protection afforded by Brazilian patents. This doctrinal shield is strategic: it reduces transaction costs, avoids interpretive fragmentation, and prevents litigation involving sensitive technologies from being shifted to jurisdictions that are less predictable or potentially hostile to national interests. At the same time, it strengthens Brazil’s position in technological cooperation negotiations and international agreements, as it signals that the country offers a legally secure environment capable of hosting innovation-intensive investments.

The bill also creates a more favorable ecosystem for inventive activity by articulating the locus damni rule for unfair competition and trade secret misappropriation, combined with the possibility that Brazilian courts may consider damages occurring abroad. This approach demonstrates regulatory maturity and reinforces protection against practices that undermine the competitiveness of innovative firms, such as parasitic conduct, unlawful reverse engineering, technological espionage or misappropriation of know-how. In a global scenario in which innovation and research chains are increasingly internationalized, the ability to protect trade secrets and business models beyond territorial borders is a factor of considerable economic relevance.

Moreover, the simplicity and clarity of the connecting rules adopted by the bill substantially reduce the regulatory risk perceived by foreign companies considering the establishment of development activities, clinical trials, R&D centers or manufacturing facilities in Brazil. The predictability afforded by the application of Brazilian law and by the centrality of national registration diminishes exposure to legal uncertainty and prolonged disputes, thereby encouraging the internalization of productive capacities and local innovation. Added to this is the fact that the modernization of private international law enhances the possibility that Brazil will become a preferred forum for disputes involving technologies implemented in the Brazilian market.

In highly complex disputes — such as those involving biosimilars, telecommunications, artificial intelligence, embedded software, medical devices or standard-essential patents (SEPs) the choice of forum may be decisive for the commercial success of a product. By conferring coherence and robustness to the system, the bill creates incentives for right holders to select Brazil as the natural forum for litigation affecting the national market, strengthening the country’s capacity to adjudicate strategic technological matters and attracting experts, law firms and investments geared toward patent enforcement.

Therefore, the bill not only updates Brazilian legislative technique; it profoundly reshapes the country’s position on the global innovation map. By combining firm territoriality, interpretive predictability, reinforced protection against transnational torts and alignment with international standards, Brazil begins to offer a regulatory environment that is safer, more transparent and more functional.

This movement has the potential to transform the country into an attractive destination for industrial property and into a prominent jurisdiction in international patent litigation, contributing to the strengthening of national technological competitiveness and to the consistent attraction of high value-added foreign investment.

CONCLUSION

The submission of the draft bill of the new Private International Law Act to the Office of the President marks the beginning of a cycle of structural reform in the treatment of transnational legal relations in Brazil. By replacing a fragmented, outdated and insufficient regime for the digital era with an integrated, coherent normative framework aligned with international best practices, the proposal elevates the country to a new institutional standard.

In the field of international legal cooperation, the incorporation of modern mechanisms for the circulation of decisions — such as the provisional enforcement of foreign judgments and direct communication between authorities — strengthens Brazil’s openness to the efficiency and mutual trust standards essential to global trade, mobility and investment.

In matters of intellectual property, the draft bill demonstrates doctrinal maturity by combining the classical territoriality of industrial property, functional criteria for copyright, and a refined treatment of transnational torts. This normative architecture not only overcomes historical vulnerabilities but also repositions the country as a stable, predictable and technically equipped jurisdiction for hosting high-complexity disputes, especially in innovative intensive sectors. By reinforcing legal certainty and reducing transaction costs, it helps build an environment conducive to technological development, international knowledge transfer and the attraction of investment.

The success of this transformation, however, will depend on a continuous process of jurisprudential harmonization, institutional capacity-building and engagement with the international instruments that inspired its formulation. If effectively implemented, the new regime may consolidate Brazil not merely as a country aligned with the legal demands of globalization, but as a protagonist in the governance of international flows of technology, information and intangible assets.

This is, therefore, a historic moment: an opportunity to reposition Brazilian private international law in the twenty-first century and to strengthen the country’s strategic integration into global innovation chains.