Camila Goldberg
BMA, Rio de Janeiro
cgc@bmalaw.com.br

Iara Conrado Ferreira
BMA, Rio de Janeiro
icf@bmalaw.com.br

Introduction

Cross‑border interactions among individuals, companies and economic actors in general have intensified in the modern globalised society, reshaping social, commercial and legal relations. Alongside undeniable benefits, globalisation has produced complex jurisdictional challenges. A striking recent development is the export of indemnification claims governed by Brazilian law arising from environmental, social and governance‑related (ESG-related) events that occurred in Brazil. In most cases, extensive litigation is already pending before Brazilian courts, with effective relief being provided to affected people and the society, as well as the active institutional engagement by the Public Prosecutor’s Office and the Public Defender’s Office.

Despite the undisputed jurisdiction of Brazilian courts to hear and judge those claims, claimants are being recruited in Brazil to file mass claims abroad, predominantly in Europe and the United States. Given the high costs of transnational litigation, these suits are typically organised on a large scale and supported by significant litigation funding. To justify foreign jurisdiction, litigants often seek tenuous connecting factors between the event occurred in Brazil and the foreign forum. However, the applicable substantive law to those cases is frequently Brazilian law, which requires foreign courts to familiarise themselves with Brazilian legislation and case law, typically through expert evidence.

The internationalisation of these disputes poses challenges for cross-border civil proceedings; as a relatively recent phenomenon, it still requires further consideration by the legal community.

International civil procedure

Jurisdiction is the state’s authority to resolve disputes by applying the law within its territory and constitutes a core expression of sovereignty. In Brazil, the constitutional guarantee of access to justice (Federal Constitution, Article 5, XXXV) underscores the availability of Brazilian courts to adjudicate disputes that are under their jurisdiction. In a globalised context, multiple states may concurrently assert jurisdiction over the same dispute. As a consequence, international civil procedure must establish territorial limits on the effectiveness of procedural rules and set out criteria for judicial cooperation.

The Brazilian framework

Articles 21–25 of the Brazilian Code of Civil Procedure (CPC) sets out the scope of Brazilian jurisdiction, which may be exclusive or concurrent. Article 12 of the Law of Introduction of the Norms of Brazilian Law (LINDB, Decree-Law 4.657/42) brings similar provisions.

Brazilian courts have exclusive jurisdiction (CPC Article 23), inter alia, over:

• claims concerning real estate property located in Brazil;
• inheritance proceedings involving assets situated in Brazil; and
• divorce/separation cases when division of property in Brazil is at stake.

The scope of ‘claims relating to real estate property’ is debated, but prevailing scholarship and case law read it broadly to include obligational claims closely tied to rights in rem.

Brazilian courts have concurrent jurisdiction (CPC Article 21–22) when the defendant is domiciled in Brazil, the obligation must be performed in Brazil, or the underlying facts/acts occurred in Brazil. Other hypotheses include alimony, consumer disputes where the consumer is domiciled in Brazil, and submission to Brazilian jurisdiction (expressly or tacitly).

Under CPC Article 24, a suit filed abroad does not bar proceedings in Brazil concerning the same cause of action. Conversely, the Superior Court of Justice (Superior Tribunal de Justiça or STJ) may recognise a foreign judgment even if a parallel case is pending in Brazil. However, recognition will be denied if a final judgment has already been rendered in Brazil on the same matter, thereby safeguarding national sovereignty.

Exporting Brazilian ESG disputes

The disputes taken abroad typically arise from large‑scale environmental accidents in Brazil, involving Brazilian entities operating within the country, with harms concentrated in Brazilian territory. While corporate structures or commercial ties of those entities may extend abroad (eg, shareholders, subsidiaries or suppliers), such links are often the central connecting factor invoked to ground foreign jurisdiction. This is important to note given that, in today’s economy, cross‑border corporate relations are ubiquitous.

In practice, these ESG claims are usually already the subject of extensive domestic litigation: collective actions, individual suits, enforcement proceedings, and numerous collective and individual settlements judicially ratified. From a jurisdictional perspective, Brazil plainly qualifies under CPC Article 21 (defendant’s domicile, place of performance of obligations, and place where the harmful event occurred). Where there is dispute over real estate property located in Brazil, exclusive jurisdiction may even apply (CPC Article 23, I).

Applicable law

Conflict‑of‑laws rules determine the law governing obligations by reference to connecting factors. In Brazil, under LINDB Article 9, obligations are governed by the law of the place where they are constituted. As to these ESG claims filed abroad, they are usually governed by Brazilian substantive law, as referred above – adding complexity for foreign courts, which must apply Brazilian statutes and precedents.

Limits on forum choice in concurrent jurisdictions

When multiple fora are theoretically competent, the claimant’s choice must be reasonable and reflect a sufficient nexus to the forum selected. Abusive forum shopping is restrained in common law jurisdictions by the doctrine of forum non conveniens, which allows courts to dismiss a case in favour of a more appropriate forum (considering factors such as access to evidence and ease of enforcement).

In Brazil, in a judgment rendered in 2019 (MC 15.398/RJ), the STJ held that this concept does not have a direct statutory basis in Brazilian procedure. Yet, the Court controlled duplicative litigation by invoking the procedural duty of good faith (currently provided for in CPC Article 5), condemning contradictory conduct – eg, refiling the same claim in Brazil after an adverse judgment issued abroad, prior to its recognition in Brazil.

Contemporary scholarship and another STJ decision issued in 2023 (CC 199.079/RN) have moved toward a material perspective of the ‘adequate jurisdiction’ principle, acknowledging – exceptionally – the possibility of identifying the most appropriate court among several abstractly competent ones, echoing the spirit of forum non conveniens.

Procedural and systemic challenges

The internationalisation of these ESG claims that are essentially domestic raises several issues which require further reflection from the internation legal community to ensure effectiveness in their resolution. Some of these issues are:

• Judicial acculturation costs. Foreign courts must master complex Brazilian legal issues – often public policy matters and subjects of ongoing debate within Brazilian courts. This increases reliance on expert evidence and may inflate costs and timelines.
• Fragmentation and conflicting outcomes. Parallel proceedings require special attention to avoid disrupting redress solutions, duplicative efforts, and generating inconsistent outcomes that could complicate enforcement and the finality of relief.
• De facto ‘international jurisprudence’ on Brazilian law. Decisions issued by foreign courts may give rise to an ‘international jurisprudence’ on Brazilian law, even when those foreign decisions are not submitted for recognition by the STJ and despite domestic courts concurrently adjudicating the same questions.

Conclusion

Litigating ESG-related disputes governed by Brazilian law in foreign fora tests the boundaries of concurrent jurisdiction and heightens the need for principled forum selection, cooperative adjudication, and respect for public policy.

As these transnational cases proliferate, the legal community should promote clearer standards for (1) when those claims can legitimately be accepted in foreign jurisdiction and (2) if they are processed by a foreign court, how to ensure consistency with the remedies already in place in the local jurisdiction, ensuring effectiveness without sacrificing systemic integrity or legal certainty.