The bill for a New Code of Civil Procedure (NCPC) was approved by the Brazilian Senate on 16 December 2014. It should come into force by early 2016.
The goal behind the NCPC is to further expedite lawsuits. Therefore, the bill abolishes the dichotomy between ordinary and summary procedures, expediting both modalities further than the current configuration of Brazilian civil procedure, and strengthens the role played by small claims courts.
The NCPC does away with certain preliminary jurisdictional matters that were deemed to delay the onset of lawsuits, maintaining only the plea of lack of jurisdiction and that of challenging the appointed judge on grounds of impartiality. With regard to procedural acts, the NCPC innovates by asserting that procedural time limits should apply to weekdays only.
One of the main features of the NCPC is its encouragement of alternative dispute resolution methods, especially arbitration and mediation.
Arbitration
The NCPC encourages and supports the choice of arbitration, which should foster the institute’s growth and promote further collaboration between the arbitrators and judicial courts.
The NCPC adopts the suggestions of working groups, one convened by the Rio de Janeiro Section of the Brazilian Bar, chaired by partner Joaquim de Paiva Muniz, and the other by the Pontifical University of São Paulo, chaired by Prof. Francisco Cahali, regulating cooperation between arbitration panels and state courts, instituting the arbitral letter (carta arbitral), which is similar to rogatory letters exchanged by judges from different jurisdictions, enabling arbitrators to request and obtain court support in favor of arbitration.
The NCPC also regulates the recognition and enforcement of foreign arbitral awards, consolidating the favorable case law developed by the Brazilian Superior Court of Justice ‑ STJ, which has long since adopted a favorable stance as regards the recognition and enforcement in Brazil of foreign decisions.
Another innovation relates to confidentiality. The current Brazilian Civil Procedure Code does not specifically foresee that court proceedings deriving from confidential arbitrations should remain confidential before the courts. The NCPC provides that lawsuits ancillary to confidential arbitrations should also remain confidential, respecting the confidential character of the arbitration proceedings.
Mediation
The NCPC provides that, after service of process, the defendant will be summoned to appear at a conciliation hearing, which can be converted into a mediation procedure. This may happen even before the defendant is required to submit his or her statement of defense.
This preliminary hearing strengthens the reliance on amiable methods of dispute resolution, especially mediation. The NCPC includes a section dedicated to court mediators and conciliators, regulating their registration and the role that they play in court proceedings. The courts shall maintain a roster of mediators and conciliators. Once the defendant is summoned, if the parties decide to submit their dispute to mediation, such a procedure can be referred to private mediation and conciliation institutions, or to professionals appointed by the courts.
The NCPC also regulates the duties of the mediators and conciliators during the conduct of the proceedings, requesting the latter to protect, inter alia, confidentiality, neutrality and good faith, listing potential conflict of interest situations and setting penalties for non‑compliance.
Finally, the text provides that the settlement agreement obtained by conciliation or mediation may become, after homologation before state courts, a judicial execution instrument allowing the parties to compel the enforcement of the settlement terms.
These changes promote mediation and ADR in Brazil, which might be the next wave in the development of dispute resolution mechanisms in Brazil.
