Law No. 13,105 of March 16, 2015, which instituted the new Brazilian Code of Civil Procedure (Code) and which will supersede the 1973 Code as of March 16, 2016, will usher in substantial changes to litigation overall, including IP litigation.
The new Code, in the spirit of the Universal Declaration of Human Rights adopted in 1948 by the General Assembly of the United Nations, seeks to promote a fairer society, prioritizing ethics and the guarantee of freedom. The Code aims to promote the achievement of justice in the most effective manner possible while assuring citizens a reasonable duration of process.
The Code contains 1,072 articles and is characterized by advances concerning procedural speed, the end of appeals filed merely to extend timelines and the standardization of case law. Brazil is one of the world’s most litigious countries. Whereas the U.S. Supreme Court hears an average of 70 appeals per year, Brazil’s Federal Supreme Court hears 60,000. Among the various new procedures created are conciliation and mediation; the Code is meant to simplify and encourage alternative methods of conflict resolution because the judicial branch, overwhelmed by a deluge of cases, has proven that, in most cases, it is unable to perform its duties in a timely manner.
The importance of these alternative methods is highlighted by the fact that they are mentioned in Chapter I, paragraph 3, Article 3, “Fundamental Rules of the Civil Proceeding,” which states that “conciliation, mediation and other methods of consensual solution of conflicts shall be encouraged by judges, lawyers, public defenders and members of the Public Prosecutor’s Office, including in the course of the judicial proceeding.” Article 319 (item VII) further states that the plaintiff must indicate in its complaint which option is preferred—conciliation or mediation. The timeframe for the defendant’s defense only starts to run “from the hearing of conciliation or mediation, or the last session of conciliation, when any party fails to attend or, while attending, no compromise is reached.” (Article 335, item I) The compromise, if obtained, will be set out in writing and ratified by the judge, bringing the litigation to an end.
It will be a major challenge to transform the culture of litigation into one of consensus and dialogue. However, even prior to the new Code, attempts to promote compromise between par-ties proved to be very successful. Conflicts involving consumer law, for instance, have been resolved by conciliation, and at times through mediation. The National Institute of Industrial Property (INPI), in one of the most import-ant initiatives, in partnership with the World Intellectual Property Organization (WIPO), will implement, as yet without a defined date, the service of mediation by the Center for Defense of Intellectual Property (CEDPI), for alternative resolution of disputes, seeking to facilitate the mediation of controversies concerning IP rights in the INPI’s areas of action, involving both parties based or resident in Brazil, or one/both parties based or resident abroad.
This new Code is sure to have an enormous impact on IP litigation. It will be an important tool for amicably resolving conflicts by making use of alternative methods for dispute resolution. Similarly, the CEDPI’s mediation service will not only reduce the time for analysis of administrative proceedings, but also avoid new lawsuits coming to court, which is the paramount purpose of the Code: to promote speedier and more effective justice.
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