BRAZIL: An Introduction to Public Law

Public Law and Public-Private Partnerships in Brazil

Introduction: Brazil’s legal foundation for infrastructure investment

Brazil has never been more attractive to infrastructure capital. A resilient macro-economy, solid democratic institutions and a mature public-private partnership (PPP) framework are converging to create a pipeline of ambitious, bankable projects. At the same time, investors must still navigate a dense web of administrative, constitutional and regulatory norms — now overlaid with cross-cutting demands such as data-protection compliance and an ongoing, far-reaching reform of the tax system.

Structurally, Brazil is a presidential federation rooted in the civil-law tradition, with the rule of law and its attendant principles enshrined in the 1988 Constitution. Almost all substantive norms must be enacted by Congress, yet the federal model grants states and municipalities concurrent legislative powers for strictly local matters, provided they remain in accordance with the constitutional framework. Unlike many jurisdictions influenced by French public law – where administrative courts stand apart from ordinary courts – Brazil operates a single, unified judiciary that adjudicates both public and private-law disputes. This unified bench, while sometimes slower than specialised administrative tribunals, offers investors a consistent procedural environment and constitutionally entrenched protections against arbitrary state action.

The Brazilian PPP framework

The general approach to public law and the specific treatment of PPPs must be understood as a sub-product of the Brazilian legal framework. Brazilian private participation in infrastructure investment is heavily influenced by the French concession contracts scheme (“user-pays PPPs” as they are known in common law tradition), which is mostly applicable to “traditional” public utilities (eg, water distribution, power plants and public transportation) that generate revenue from user charges. The British private financial initiative (PFI) model was only incorporated into the Brazilian legal system via Federal Law No 11.079/2004. Government-pays PPPs (“pure” PFI) were then introduced as “administrative concessions”, as well as “sponsored concessions”: a “hybrid” model that admits both user charges and government payment.

For this overview, the term PPP will encompass all possible long-term partnership models that require significant private investment and risk allocation, regardless of legal terminology.

PPP contracts are typically contracts with significant aspects being determined by federal law, which leaves less room for stipulating obligations and other matters by the contracting authority. As a result, there are several pieces of legislation that must be considered when it comes to PPPs. Federal Laws No 8.987/1995 and No 9.074/1995 regulate user-pays PPPs, whilst Federal Law No 11.079/2004 is the piece of Brazilian PPP legislation that deals with “PFI model” terms. Furthermore, it is worth noting two other pieces of legislation that are fundamental to the Brazilian PPP Framework: Federal Law No 13.334/2016, which establishes the Brazilian Private Participation in Infrastructure Investment Programme (PPI) and Federal Law No 14.133/2021, which ascertains general rules and principles on public procurement and governmental contracting. Most industries also have rules and legislation that apply to PPP contracts in specific sectors/contexts, such as energy, ports, airports, roads, railroads, basic sanitation, and transportation services.

The “new era” for private investment in infrastructure

Federal Law No 13.334/2016 is responsible for creating the Brazilian Private Participation in Infrastructure Investment Programme (PPI). The establishment of a federal PPP programme was a decisive moment for private investment in infrastructure and a turning point in Brazil’s approach to the matter. From that moment on, PPPs started to be treated more systematically; project structuring evolved significantly; and aspects of governance, transparency and compliance entered the agenda in a much more professional manner. Brazil’s current PPP pipeline can be found in overview on the websites of the PPI and the National Economic and Social Development Bank (BNDES). This new regulatory environment has led to the current moment, one in which institutional and financial investors show growing interest in the Brazilian infrastructure investment market.

At present, Brazil faces new challenges mostly linked to capacity building in contract management. Since PPPs were not widely used throughout the 20th century, public officials in contracting authorities tend to favour traditional procurement when dealing with PPPs. Overcoming this challenge is one of the main challenges regarding efficient use of PPPs for developing infrastructure.

Brazil is on the brink of its most significant legislative overhaul in infrastructure since the early 2000s. Bill 2.373/2025 — currently advancing through Congress — seeks to consolidate the country’s concession and PPP statutes into a single, technology-neutral “umbrella law.” The draft text goes far beyond mere codification: it aims to correct long-observed frictions between the user-pays model of the 1990s and the PFI-inspired framework introduced in 2004.

For the first time, a unified matrix would govern every class of project, stipulating core allocation principles (force majeure, demand, macro-economic risk) while allowing sector-specific deviations only through Presidential decree. This harmonisation should reduce rating-agency uncertainty and narrow the pricing gap between greenfield Brazilian assets and comparable OECD ones.

The bill widens the range of available credit-enhancement mechanisms: besides traditional up-front grants, authorities could offer revenue-floor guarantees, standby liquidity facilities funded by multilateral development banks, and statutory FX-swap windows for projects with demonstrable foreign-currency exposure. Each support instrument would be tethered to performance indicators, reinforcing value-for-money discipline.

Recognising that PPPs thrive on long-term co-operation, Bill 2.373/2025 shifts the focus from ex-post litigation to ex-ante risk prevention. It requires each major concession to maintain a permanent dispute board empowered to deliver reasoned recommendations within tight deadlines, enabling the parties to correct course before disagreements escalate – a feature applauded by credit analysts because it shields cash-flow projections from judicial uncertainty. Mediation is promoted as the default first-tier remedy, triggered automatically upon a notice of dispute and designed to preserve commercial relationships while avoiding tactical injunctions. By combining swift advisory findings with consensual, interest-based dialogue, the bill strengthens regulatory predictability and materially enhances the bankability of Brazilian infrastructure assets.

By weaving swift advisory mechanisms into the contractual fabric, the bill enhances regulatory certainty, safeguards project bankability and, it is hoped, will ultimately satisfy national aspirations while aligning Brazil’s PPP practice with the highest standards worldwide.

The impact of certain key public law topics on PPPs: data protection regulation and Brazilian tax reform

Data protection is a critical issue in PPPs. Brazil’s General Data Protection Law (LGPD), in force since 2020, aligns the country with international data privacy standards. The law applies to all operations involving personal data in Brazil, regardless of the origin of the data or the location of the company handling it. In a PPP, both the contracting authority and the private partner may act as “data controllers” or “processors”, which provides for shared responsibilities. This situation requires clear contractual definitions and compliance mechanisms.

Additionally, ongoing reform of the Brazilian tax system is an issue of paramount importance, and the extent of its repercussions for private investment in infrastructure are still unclear. Federal Law No 214/2025 is the first piece of legislation passed to regulate the reforms introduced by Constitutional Amendment No 132/2023. It establishes new taxes to the legal system while replacing existing ones. Foreseeing the magnitude of the reform’s impact on ongoing projects, Federal Law No 214/2025 explicitly establishes the right to financial equilibrium and the rebalancing of contracts affected by the new tax burden, once this has been proven.

These two topics provide a glimpse of the complexity of the Brazilian legal system’s treatment and regulation of private investment in infrastructure. Understanding this regulatory environment is essential for foreign investors evaluating opportunities in Brazil’s PPP market. Brazil’s PPP ecosystem has reached a tipping point: legal predictability is improving, capital markets are deepening, and the project pipeline is both large and diversified. Yet success still hinges on disciplined structuring and a granular understanding of public-law peculiarities. Investors prepared to pair global best practice with local nuance will find a jurisdiction keen to deploy private ingenuity and balance-sheet strength in service of long-term development goals. Legal support is key to navigating this complex but promising landscape.

Conclusion: navigating complexity with confidence

Brazil’s infrastructure renaissance is real, but success will hinge on disciplined navigation of an intricate public-law landscape. From evolving concession statutes to data-protection mandates and tax-reform offsets, every project now straddles legal frontiers that can either unlock – or erode – value. In this environment, advisers who combine deep knowledge of administrative, regulatory and constitutional law with proven transactional insight do more than draft contracts: they translate statutory nuance into bankable certainty, anticipate friction points before they mature into disputes and structure safeguards that protect cash-flows over decades.

Seasoned public-law practitioners also act as strategic interpreters between market expectations and government priorities, helping investors align risk-allocation matrices with policy objectives and guiding authorities toward solutions that meet international standards without losing local legitimacy. Their reputation before audit courts, regulators and multilateral lenders often proves decisive when timelines tighten or novel structures are tested for the first time.

Ultimately, sophisticated counsel should be regarded not a cost but a cornerstone of project economics – delivering regulatory clarity, accelerating credit approvals and preserving stakeholder confidence throughout the asset life cycle. Firms that pair authoritative scholarship with hands-on deal execution, and whose standing has been forged in Brazil’s most complex infrastructure mandates, are uniquely positioned to convert legislative opportunity into durable, risk-adjusted returns. For sponsors, lenders and public entities alike, partnering with such specialists is the surest path to transforming bold infrastructure visions into tangible and resilient outcomes.