Newsletter Edition 36 - May 2022


Arbitration and Mediation grow in the software and franchising sectors

The participants of the webinar “Mediation and Arbitration in litigation involving computer programs or franchises”, held on May 12, pointed out that the growth in the use of digital platforms, especially after the pandemic, has boosted the practice of mediation and arbitration in conflict resolution – the ADR (Alternative Dispute Resolution) processes. The event, promoted by the CSD-ABPI – ABPI’s Dispute Resolution Center with the support of WIPO was attended by Manoel J. Pereira dos Santos and Rodrigo Azevedo, from the CSD-ABPI; Ignacio de Castro and Chiara Accornero, from WIPO; Tereza Gorito, from CGG (Compagnie Générale de Géophysique); Júlio César Castelo Branco Reis Moreira, from BPTO, and Carlos Sacco and Sidnei Amendoeira Júnior, from ABF (Brazilian Franchising Association).

In his presentation, Manoel J. Pereira dos Santos, president of the CSD-ABPI, addressed the concepts of arbitration and mediation, and the advantages of these extrajudicial alternatives for conflict resolution, emphasizing the areas of software and franchising. He also addressed the most commonly addressed topics, as well as the role of the lawyer and the action strategy to be adopted in these types of dispute settlement mechanisms.

The legal director for Latin America at the French CGG, Tereza Gorito, presented, with due regard for confidentiality, a mediation process in which she participated. The controversy, which had dragged on for two decades, was resolved in six months. In her presentation, Gorito emphasized the importance of seeking a chamber specialized in conflict resolution to obtain quick, less costly, and more efficient results.

Ignacio de Castro, director of WIPO’s IP Disputes and External Relations Division, reported that over the past two years, the mediation cases resolved within WIPO have increased from 70% to 75%. He also revealed an increase in cases of non-contractual ADRs, of the order of 57% against 43% governed by contract cases.

Rodrigo Azevedo, in turn, observed that at least a quarter of the mediation cases that reach the CSD-ABPI Mediation Chamber, of which he is deputy director, involve franchising. In his presentation, he addressed franchising legislation and the relationship between franchisor and franchisee and listed the most common conflicts between them. Finally, he talked about the advantages of mediation to resolve these disputes.

Chiara Accornero, legal officer of the WIPO Arbitration and Mediation Center, showed the procedures of the ADR services offered by WIPO for the franchise sector, demonstrating how to make a request for mediation and listing the most common types of disputes, such as requesting mediation, and the most common types of disputes, among licensing, software development, and contractual terminations.

In his presentation, when addressing arbitration, ABF’s legal advisor Sidnei Amendoeira Júnior discussed some aspects of the Brazilian Franchise Law (Law 13,966). He highlighted art. 7, §1: “The Franchise Law was absolutely expressed in the sense that the parties may choose arbitration as a form of conflict resolution”. He added that “everything is in line with the provisions of art. 3 of the Brazilian CPC (Civil Procedure Code), which encourages consensus and the use of ADRs”.

You can watch the webinar on the ABPI YouTube Channel. Access it!