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 Business and Arbitration Courts of Arbitration of São Paulo. He debated, with the mediation of the deputy director of the Arbitration Chamber (CArb) of the ABPI, Flávia Mansur Murad Schaal, alongside lawyers Luciana Yumi Hiane Minada and Alexandre Rodrigues Atheniense, during the webinar “Emergency protection in arbitration” promoted by CArb, of the ABPI’s Dispute Resolution Center (CSD). “We need to advance in these other ways of resolving disputes outside the judiciary, which is not enough”, said the magistrate.
Lawyer Luciana Minada carried out a survey with the main arbitration chambers in the country and found that, with rare exceptions, there are few that provide for emergency protection 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”, he 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 the parties from resorting to the judiciary”.
Atheniense, in turn, recalled that, on the internet, almost all disputes involving digital platforms are related to IP and require urgent relief, advocating the adoption of this type of decision by the arbitration chambers. “We don’t need any more evidence to provide for the urgent injunction to arbitration”, he said. According to him, the implementation and development of software, 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 added.
When dealing with 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, “in case there is an allegation of the submission of urgent relief to the emergency arbitrator, jurisdiction is declined because 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 were submitted ”.
Watch the full webinar on the ABPI YouTube channel
