The procedural legal agreement provided for in articles 190 and 191 of the Code of Civil Procedure, which is still little used, is nothing more than an agreement through which the parties can establish powers, duties, faculties, deadlines, whether or not to carry out certain acts, and also formalize a kind of procedural calendar, dating the procedural acts to be carried out during the process.
This instrument allows the parties to agree on their own procedure adjusted to the specifics of their case, in order to optimize and rationalize judicial activity, as long as the parties involved are capable agents, the problem deals with available rights and the law admits self-composition.
Procedural deals can be typical or atypical. The typical ones already existed at the time of the repealed code (which was in force until the beginning of March 2016), however, they were much more timid, allowing negotiated settlements in the procedural sphere, in a limited way. They are expressly provided for in the law and their application must comply with the formal legal requirements in order to be valid. Some examples are: the choice of forum clause in the contract, the stay of proceedings, the arbitration agreement, among others.
Atypical agreements, which are one of the novelties brought in by the current code, give greater autonomy and protagonism to the parties, giving them the power to “make procedures more flexible”.
The procedural agreement can be made both before and during the procedural litigation, as long as the assumptions of the parties’ capacity, rights that admit self-composition are respected, in addition to being analyzed by the judge.
Before the lawsuit is filed, it can be done through clauses in the contract itself or through a separate instrument entered into concurrently with or after the main contract.
After the lawsuit has been filed, the parties can make an out-of-court settlement or even enter into a negotiated settlement in the presence of the judge at a hearing, for example.
It is important to note that this agreement is effective and valid regardless of any approval by the judge, but this does not mean that the judge will not check its validity by verifying compliance with the formal requirements demanded by law or the existence of defects.
So, what can be the subject of a procedural legal transaction?
Currently, what has been widely used and accepted is the provision to waive the prior conciliation hearing, in the contract signed or, after the litigation has been initiated.
However, it should be emphasized that today it is impossible to determine what can and cannot be done, because there is no exhaustive list of possibilities that arise from the creativity and convenience of the parties and their attorneys, so there is no way to exhaust the countless possibilities for transactions.
Therefore, questions will arise such as: can it be agreed that the deadline for defense and appeals be longer than 15 (fifteen) days? Can deadlines lasting months be set? An agreement to remove the suspensive effect of appeals? Agreement not to promote provisional execution? With the inclusion of a sanction? Among others.
Even bringing in an institute from foreign law, the current code presents the possibility of setting a calendar for the practice of procedural acts, which means that the parties do not have to be summoned in view of the agreed schedule.
Undoubtedly, this practice would reduce the bureaucratic workload of registry offices, as well as avoiding the dreaded nullity of acts due to the failure to summon any of the parties involved. However, one wonders, if a large part of the courts choose to schedule court proceedings and processes, would it not be impossible to comply with acts that involve the judge, such as a hearing, for example?
Given that this is a recent and sophisticated novelty, there is a great deal of speculation about what may or may not be the subject of this institute, which should be better delineated over the next few years by observing legal practice and case law.
There is no doubt, however, that its use can bring great benefits to the parties, translated into speed and procedural economy, which is why, always attentive to the quality and effectiveness of its work, Marcos Martins Advogados has used procedural legal transactions in its claims.
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AMORIM, Daniel Assumpção Neves. Manual de direito procedual civil – volume único – 8. Ed. – Salvador: Ed. JusPodivm, 2016.
BUENO. Cassio Scarpinella. Manual of civil procedural law: entirely structured in light of the new CPC – Law 13.105/2015. São Paulo: Saraiva, 2015.
ALVIM, Arruda. New civil litigation in the CPC/2015 – São Paulo: Editora Revista dos Tribunais, 2016.
WAMBIER, Teresa Arruda Alvim; CONCEIÇÃO, Maria Lúcia Lins; RIBEIRO, Leonardo Ferres da Silva; MELLO, Rogerio Licastro Torres de. Primeiros comentários ao novo código de processo civil: artigo por artigo / coordenação Teresa Arruda Alvim Wambier. 1. ed. São Paulo: Editora Revista dos Tribunais, 2015.
