The Brazilian Code Of Civil Procedure And Its Impact On IP Litigation

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 thatconciliation, 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 preferredconciliation or mediation. The timeframe for the defendant's defense only starts to runfrom the hearing of conciliation or mediation, or the last session of conciliation, when...