by Rodrigo de Assis Torres
November 01, 2015
Rodrigo A. Torres and Felliphe Pereira
In March, 2015 Brazil enacted a New Civil Procedure Code under Law nº 13.105, and this is, one of the most important and deep legislative changes in the Brazilian Judiciary history. The Law is still in its one year vaccatio legis and will come into force in March, 2016.
Many changes will be implemented by the New Code, not only in the scope of the proceedings, but also in the appeals system and the general principles to conduct the Court’s activities.
The main change of this brand New Code can be defined on the named constitutionalisation of the proceedings in Civil Courts. It means that Brazilian Federal Constitution’s principles formally provide the basis of the New Code, such as the absolute requirement to respect the adversary system, the celerity and effectiveness of the proceedings.
An important novelty is the creation of a judicial precedent system under which similar lawsuits or similar factual situations must be treated in the same way, with the specific purpose to increase stability and legal security to the parties. This is a clear attempt to approach Brazilian Civil Law system to the common law. The consequences and effective implementation of this mixed system will certainly require a great change of mentality in Courts, not only by the Judges, but also by the parties and attorneys at law.
Still approaching the common law and arbitration rules, the parties involved in a civil lawsuit will be authorized to celebrate procedural agreements, in order to jointly establish the procedural schedules, deadlines and even the evidences to be produced before the Court.
Another relevant aspect of the New Code is the major focus on the promotion of conciliation and on the attempt to resolve the conflicts through mediation. Brazilian Judiciary has always concentrated on litigation. The possibility of conciliation, despite being already contemplated by the current Civil Procedure Code, has never been duly valued. With this New Code, the conciliation will be a mandatory stage of the proceeding and all the Justice structure will suffer changes and investments to value the culture of conciliation and mediation.
The Principle of the Cooperation between the parties and the Judge was strengthened by the New Code. Although the essence of the judicial proceeding is the resolution of conflicts and contrary interests, the parties, the Judge and all the individuals involved in civil lawsuits will be demanded to act in a collaborative way to the effective solution of the case. By that, it is possible to conclude that the parties must act in good faith and procedural loyalty, the Judge shall always promote the adversary proceeding, the due process and base properly its decisions.
About the strictly procedural novelties, it is worth to note that the appeal’s system was significantly reduced and simplified. The injunction relief system was unified, strengthened and simplified, among other various changes, always aiming to reach effectiveness and faster outcomes.
As we can glimpse from this brief report, the changes to be implemented by the New Code are deep and materialize an enormous effort to make the Brazilian Judiciary system faster, secure and effective, which will certainly favor the protection of intellectual property rights.