ADVANCE TAKING OF EVIDENCE IN NON-URGENT CASES AND ARBITRATION: THE AUTONOMOUS RIGHT TO EVIDENCE

Abstract

Brazil’s 2015 Code of Civil Procedure significantly reformed the framework for the advance taking of evidence by expressly recognizing the right to evidence as an autonomous right and allowing its exercise regardless of urgency or any intention to bring subsequent court proceedings. This broader framework raises important questions where the underlying legal relationship is subject to arbitration, particularly as to which forum has jurisdiction over requests for the advance taking of evidence that involve no urgency and are not expressly covered by the arbitration agreement. This article critically examines the availability of this procedure in the context of arbitration under Article 381 of the Code, distinguishing urgent cases from those aimed at informing the parties’ decisions and preventing disputes. The study adopts a doctrinal legal research method and a deductive approach. It shows that, while the compatibility of urgent evidence-taking measures with arbitral jurisdiction is well established, referring non-urgent requests to arbitration gives rise to theoretical and practical tensions concerning the autonomous nature of the right to evidence, the scope of the arbitration clause, and the role assigned to the grounds set out in Article 381(II) and (III) within the procedural system. The article concludes that determining jurisdiction over evidence-taking requests in the context of arbitration requires more than a categorical rule. It calls for a functional assessment of the purpose for which the evidence is sought, the terms and structure of the arbitration agreement, and the conditions necessary to ensure effective legal protection.