Contracts with Brazilian Companies: What Foreign Parties Should Review Before Signing

Most cross-border disputes we handle were decided years earlier — at signature. A contract drafted for another legal system, signed with a Brazilian counterparty “as is”, tends to fail exactly where it matters: enforcement. Here is what a foreign party should review before signing with a Brazilian company.

Can we choose foreign law and foreign courts?

Partially — and this is the single most misunderstood point. Arbitration is the reliable route: Brazil has a modern arbitration act and is a party to the New York Convention, and Brazilian courts consistently enforce arbitration clauses and awards. An exclusive choice of a foreign court, by contrast, may not stop proceedings in Brazil in several scenarios, and a foreign judgment still needs recognition by the Superior Court of Justice (STJ) before enforcement. Practical rule: if the Brazilian party has its assets in Brazil, plan the dispute clause around arbitration or Brazilian courts — not around a foreign court you may be unable to use.

Which clauses decide disputes in practice?

Clause	What to check
Dispute resolution	Arbitration (seat, language, institution) or Brazilian courts; avoid exclusive foreign-court clauses as the only route
Governing law	Align with the forum; mixed choices create cost
Language & versions	Enforcement in Brazil runs in Portuguese — keep a Portuguese version or budget sworn translation; state which version prevails
Limitation of liability	Enforceable in Brazil in balanced B2B contracts, except for willful misconduct or gross fault; consumer rules are different
INCOTERMS & delivery	Define term, named place and who clears customs in Brazil
Payment & guarantees	Currency, indexation, personal/bank guarantees, retention of title — enforcement-tested wording
Termination & agency	Distribution/agency terminations in Brazil can trigger statutory protections — plan exit before entry

Are limitation of liability clauses valid in Brazil?

In genuinely negotiated business-to-business contracts, yes — Brazilian superior-court case law upholds limitation and liability-cap clauses between sophisticated commercial parties, setting them aside in cases of willful misconduct or gross fault. Two caveats: consumer relationships follow protective rules that override such clauses, and clauses imported from common-law templates (broad indemnities, consequential-damages waivers) should be adapted to Brazilian drafting to survive scrutiny.

Does the CISG apply to my sale to Brazil?

Often, yes — and many parties don’t notice. Brazil is a party to the CISG (the UN Convention on Contracts for the International Sale of Goods, in force for Brazil since 2014). If both parties are in contracting states and the contract is silent, the CISG may govern the sale by default. Decide deliberately: keep it, or exclude it expressly, but don’t discover it during the dispute.

What about e-signature — is DocuSign valid in Brazil?

Electronic signatures are broadly valid for commercial contracts in Brazil. For documents that will face enforcement or registration, form matters more (witnesses, certified signatures, translations), so the signing method should match what you may need to do with the document later.

Frequently asked questions

Should the contract be bilingual? For anything you may need to enforce in Brazil, yes — or at least budget a sworn translation. A prevailing-language clause avoids battles between versions.

Our standard terms sit on our website. Do they bind the Brazilian buyer? Incorporation by reference is possible but fragile in Brazil if the counterparty can claim it never saw the terms. Attach and have them signed.

Can you review a contract we already signed? Yes — a signed-contract audit maps your real exposure and, where needed, prepares the ground (notices, amendments) before any dispute.

Negotiating with a Brazilian counterparty? Send us the draft — we review it under Brazilian law and reply in English.