Newsletter Edition 38 - July 2022
Overwhelmed by 80 million lawsuits in progress, with a negative and growing retention rate, the Brazilian Judiciary is in favor of alternative conflict resolution solutions, said judge Luiz Felipe F. Bedendi, assistant to the 1st and 2nd Corporate and Arbitration Conflict Courts of São Paulo. He discussed, with the mediation of ABPI’s Arbitration Chamber (CArb) deputy director Flávia Mansur Murad Schaal, alongside lawyers Luciana Yumi Hiane Minada and Alexandre Rodrigues Atheniense, in the webinar “Injunctive relief in arbitration” promoted by the Arbitration Chamber of ABPI’s Dispute Resolution Center (CSD). “We need to advance in other ways of resolving disputes outside the judiciary, which cannot handle all of them”, said the magistrate.
Lawyer Luciana surveyed the main arbitration chambers in Brazil and found out that, with rare exceptions, few provide for injunctive relief in their regulations. One of the exceptions is the CSD-ABPI. “ABPI was careful to build a regulation that speaks to the particularities of our IP area,” she said. “The suggested arbitration clause model itself already provides for the provision that the parties will be subject to the emergency arbitrator and the procedure provided for in the regulation, which discourages them from resorting to the judiciary”.
Successively, Atheniense, recalling that, on the internet, almost all disputes involving digital platforms are related to IP and require injunctive relief, defended the adoption of this type of decision by the arbitration chambers. “We do not need any more evidence to provide urgent relief to arbitration,” he said. According to him, the implementation and development of software and disputes involving digital marketing, among others, require urgent relief. “The traditional arbitration clause skips this part of the urgent relief. It needs to be more detailed,” he stated.
When addressing urgent relief in the pre-arbitral phase, Judge Bedendi observed that if there is a consensus between the parties, the arbitration clause can be waived, even if the emergency arbitrator is mandatory. But, he added, “if there is an allegation of the submission of urgent relief to the emergency arbitrator, jurisdiction is declined, as there is nothing to be done since there is a provision either in the arbitration clause or in the regulation of the chamber to which the parties have submitted”.
Watch the webinar on ABPI’s YouTube channel – https://youtu.be/ogLJ2gbsASc