Keywords: Brazil, aviation accidents, investigative findings

On 9 May 2014, after more than eight years in course before the National Congress, Law Bill No. 2453/2007 was finally sanctioned by President Dilma Rousseff, becoming Ordinary Law No. 12970/2014.

The law in question provides mainly for investigations into accidents, incidents and occurrences on the ground relating to aviation, and brings the country more into line with the international legal scenario, since it follows the principles established by the Chicago Convention on International Civil Aviation 1944, ratified and approved by Brazil through Decree 21.173/1946.

Among the main innovations introduced by Law No. 12970/14, most notable are the merely preventive consolidation of investigations involving aircraft accidents and incidents; concern about the confidentiality of the sources of information used for such investigations and, as a general rule, the prohibition on the use of investigative findings as evidence in judicial and/or administrative proceedings.

The primary goal of these changes was to have such investigations conducted "solely for the benefit of the operational safety of air activities", creating mechanisms for all those involved, directly or indirectly, in particular accidents and/or incidents to be able to collaborate with assessing the contributing factors, in the confidence that they will not, in any way, be coerced or penalized (even if they may have contributed to the occurrence of the event).

Accordingly, Law No. 12970/14 also provides that all information supplied in connection with the investigations "will be spontaneous and based on the legal guarantee of its exclusive use for the purposes of prevention", allowing - only under exceptional circumstances - its use as evidence, and even then, covered by secrecy orders.

Although the Brazilian Aeronautical Code (Law No. 7565/86) made provision for the System for Investigation and Prevention of Aeronautical Accidents, its provisions seemed insufficient and somewhat distant from the context of the most modern doctrines of flight safety, and the way that information related to investigative activity in the sector is dealt with internationally.

In practice, there is a consensus in the airline industry that the lack of up-to-date laws, able to address clearly and appropriately the information obtained through these investigations was prejudicial to the prevention of further accidents and to operational safety in the air industry.

Despite the undeniable progress represented by Law No. 12970/14, the wording of some of its articles - especially those related to the removal and custody of the wreckage of damaged aircraft - requires a better legislative technique, and may lead to contradictory interpretations.

In any event, it is expected that Law No. 12970/14 can correct some of the shortcomings in the legislation hitherto in force, encouraging on the one hand, access to information that may help in the prevention of aviation accidents and incidents, while at the same time ensuring that those who participate in investigations will not suffer losses as a result of collaborating in such investigations.

Visit us at Tauil & Chequer

Founded in 2001, Tauil & Chequer Advogados is a full service law firm with approximately 90 lawyers and offices in Rio de Janeiro, São Paulo and Vitória. T&C represents local and international businesses on their domestic and cross-border activities and offers clients the full range of legal services including: corporate and M&A; debt and equity capital markets; banking and finance; employment and benefits; environmental; intellectual property; litigation and dispute resolution; restructuring, bankruptcy and insolvency; tax; and real estate. The firm has a particularly strong and longstanding presence in the energy, oil and gas and infrastructure industries as well as with pension and investment funds. In December 2009, T&C entered into an agreement to operate in association with Mayer Brown LLP and become "Tauil & Chequer Advogados in association with Mayer Brown LLP."

© Copyright 2014. Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. All rights reserved.

This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.