Rules established by the parties regarding judicial proceedings
The New Brazilian Code of Civil Procedure, which will come into effect on March 17th, 2016, will allow parties to a lawsuit to agree upon changes in the judicial proceedings, before or during the course of a lawsuit, in cases dealing with alienable property rights (Articles 190 and 191 of the New Brazilian Code of Civil Procedure).
This provision is inspired by the arbitration practice, where parties usually are able to establish the rules applicable to the proceedings, and has the purpose of allowing the procedure to be adjusted to the specific characteristics of each case.
Pursuant to Article 190 of the New Brazilian Code of Civil Procedure, parties may agree upon specific rules to govern the proceedings, including rules on burden of proof. To encourage the implementation of the rules established by the parties, the New Brazilian Code of Civil Procedure provides that judges can only refuse to apply the rules in specific cases (nullity of rules, improper insertion in adhesion contracts, or if either party is in a situation of vulnerability). Moreover, Article 191 provides that judges and the parties may establish a specific procedural timetable for the conduction of the judicial proceedings.
By allowing parties to agree on procedural matters, the New Brazilian Code of Civil Procedure has introduced a mechanism that may optimize judicial proceedings and result in more effective and quicker results, as already happens in arbitration proceedings. However, the success or failure of these provisions still remains to be seen, as it depends on the willingness of lawyers, parties and judges to apply the new rules.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.