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TECHNICAL NOTE No. 12/2026

LITIGATION, COMPETITION, AND CIVIL LIABILITY IN BRAZILIAN AIR TRANSPORTATION

BRASÍLIA DECLARATION for a Technical Debate on the Regulation of Digital Platforms

Gathered in Brasília for the Seminar “Regulation of Digital Platforms and AI in Brazil – Challenges and Legislative Perspectives,” experts, scholars, and private-sector representatives hereby subscribe to this Brasília Declaration, with the aim of contributing to an informed debate on the competition-related regulation of digital platforms in Brazil.

PROPOSED STATEMENTS TO FONAJUS/CNJ

The three draft guidelines set forth below aim to establish objective criteria for granting court orders regarding coverage or funding for therapies intended for individuals with Autism Spectrum Disorder (ASD) and other neurodevelopmental disorders, in accordance with Recurring Issue No. 1,295 of the Superior Court of Justice and with Statements Nos. 133, 138, 139, and 140, approved at the 7th Health Law Conference of the National Council of Justice.

ABUSIVE LITIGATION IN STRATEGIC SECTORS

Abusive litigation in the private health insurance sector is characterized by the widespread and systematic use of the judicial system as a means of extracting value, divorced from the legitimate protection of rights. The patterns documented by the IBCI study—corroborated by precedents from the Superior Court of Justice (STJ), the Federal Supreme Court (STF), and the Courts’ Intelligence Centers—point to a structural, rather than episodic, phenomenon with systemic impacts on the cost of health insurance plans and the sector’s sustainability.

ABUSIVE LITIGATION IN STRATEGIC SECTORS – PRESENTATION

Since 2021, the Brazilian Institute of Competition and Innovation has been conducting systematic research on patterns of abusive litigation. The methodology combines in-depth case law analysis, statistical mapping using DataJud/CNJ, and the identification of behavioral indicators drawn from representative samples of court cases—with a focus on structural, rather than episodic, patterns.

Regulation of Digital Platforms in Latin America. Challenges And Perspectives

Abstract: On February 2, 2026, the IBCI launched its annual series of webinars and events,establishing a cross-sector regulatory agenda for the year. The first event focused on legislativeproposals intended to regulate digital platforms in Brazil and sought to collect evidence and expertassessments from Brazilian and international specialists. The adoption of these proposals, and theinstitutional reconfiguration they may entail, could have far-reaching regulatory, economic, andstrategic implications for Brazil’s digital governance landscape. As these bills continue to beconsidered within Brazil’s legislative process, key design choices remain contested. However, thereis still no clear convergence around the specific regulatory architecture to be adopted, includingthe allocation of mandates and enforcement responsibilities. While multiple stakeholders share aninterest in legal certainty and effective oversight, perspectives diverge on CADE’s prospective roleand on how lessons from European and UK approaches should inform Brazilian rulemaking,alongside industry and Latin American academic experience. Following the webinar convened bythe IBCI, participants and organizers consolidated the main points raised during the discussion.Based on these inputs, this report synthesizes the evidence collected and sets out conclusions andrecommendations intended to inform Brazil’s ongoing national debate on the regulation of digitalplatforms and artificial intelligence.

Digital Overreach: A Premature Turn to Ex Ante Regulation in Brazil

On September 18, 2025, the Brazilian government submitted Bill 4,675/2025 to the House of Representatives as part of President Luiz Inácio Lula da Silva’s “Digital Brazil Agenda.” The bill would amend Brazil’s Competition Law (Lei No. 12,529/2011) to create a new Digital Markets Superintendency (SMD) within the Administrative Council for Economic Defense (CADE), empower it to designate firms of “systemic relevance in digital markets” for up to 10 years, and impose “special obligations” drawn from a non-exhaustive statutory menu. These include prohibitions on self-preferencing, interoperability mandates, data portability requirements, mandatory merger notification regardless of existing thresholds, and broad business-user data access rights.

Soy Moratorium: An Evidence-Based Assessment

The Soy Moratorium, established in 2006 by the Brazilian Association of Vegetable Oil Industries (ABIOVE) and the National Association of Cereal Exporters (ANEC), constitutes an agreement between soy-buying companies that establishes the non-purchase of production originating from areas with deforestation after July 22, 2008, in the Amazon biome. Presented as a "zero deforestation" initiative, the Moratorium involves the main global trading companies that concentrate approximately 90% of the national soy export market.

Predatory Litigation in the Health Sector: Competition Challenges of Judicial Activism in Brazil

Predatory litigation has become increasingly prevalent in Brazil’s health and pharmaceutical markets, serving as a mechanism to delay the entry of generics, extend patent monopolies, and inflate healthcare costs. In 2024, Brazilian courts recorded 154,857 new lawsuits related to hospital treatments, with São Paulo accounting for 37% of these cases. Additionally, legal expenses for private insurers emerged by 37.6% in 2023, reaching BRL 5.5 billion, highlighting significant competitive and public health concerns. This study seeks to address the question: “To what extent do predatory litigation and judicial activism impair competition in Brazil’s health and pharmaceutical sectors, and what measures can mitigate these effects?” It posits that the absence of binding criteria for identifying predatory practices, coupled with limited judicial expertise in competition and regulation, enables the courts' systematic misuse. By referencing the U.S. Noerr-Pennington doctrine, its sham-litigation exception, and related tests (such as PRE, POSCO, and fraudulent litigation), this research contrasts doctrinal protections against baseless lawsuits with practices including evergreening, patent thickets, and trademark misuse. Employing a convergent mixed-methods design, the study integrates: (a) a systematic review of literature, judicial statistics, and precedents; (b) quantitative analysis of a variety of cases from the Brazilian judiciary, focusing on the volume of lawsuits, their duration, and financial repercussions; and (c) qualitative case studies and semi-structured interviews with judges, lawyers, economists, and regulators. The synthesis of these findings aims to quantify economic damage, identify procedural bottlenecks, and offer evidence-based recommendations for regulators, competition authorities, and legislators to combat predatory litigation and promote accessible, innovative healthcare.

Competition and Innovation: Reflections and Insights (Volume II)

This book is a collection of the best articles from the 4th and 5th International Congress of the Brazilian Institute of Competition and Innovation - IBCI. In this volume, besides the debates about the challenges imposed by digital markets, interdisciplinary and transdisciplinary approaches to competition law are introduced, covering topics that are part of the resumption of antitrust law and addressing general issues involving traditional markets, such as the failing firm theory, behavioral economics, and the concept of sham litigation.

Competition and Supplemental Healthcare

This book addresses a topic of extreme relevance: competition in the supplemental healthcare sector in Brazil. The work takes an interdisciplinary approach to the main challenges faced by the sector’s regulation.

The book Competition and Supplemental Healthcare is divided into three parts: the first focuses on the challenges of regulating the supplemental healthcare sector in Brazil; the second offers a competitive analysis of the sector, primarily addressing the trend towards verticalization; and the third examines anti-competitive practices and innovation strategies.

Competition and Innovation: Reflections and Insights (Volume I)

This work is the result of the 3rd International Congress of the Brazilian Institute of Competition and Innovation – IBCI and includes the best articles selected from the event's call for papers, as well as contributions from speakers related to their panels and presented research.

Readers will find reflections from renowned Brazilian and international professors, as well as promising researchers from various backgrounds and research lines. In line with the 3rd IBCI International Congress, this book focuses on the main challenges posed to public authorities worldwide by the disruptive phenomenon of digital markets and ecosystems.

Conselho Editorial

André Santa Cruz

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