Carta Forense

In search of a regime that can possibly be as uniform as the temporary reliefs , the  2015 CPC set forth a rule for jurisdiction which is similar to the one established in article 800 of the 1973 CPC, but with differences and, eventually, some remarkable developments.

Firstly, the head of article 299 in the 2015 CPC preserves the rule that the court of the “case” has jurisdiction to judge the pleading. This jurisdiction is determined by   functional criteria – according to the functions in the lawsuit, the judge has jurisdiction to hear the pleadings of the temporary reliefs – and, therefore, the parties will not be allowed to waive it. Not even the prerogative given to the parties in article 190 of the new law could change that rule, which was established to protect the good development of the judicial activity, and thus is included in the list of procedural rules that cannot be waived.

While the 2015 CPC, differently from what had been set forth in the previous law when dealing with the provisional relief (article 796), has not expressly established a relationship which shows that the temporary relief – provisional, interlocutory, filed on an urgency basis or on preponderance of evidence- and the main action are mutually dependent, this is what actually happens. It is a question of logic: no matter the reason, if the relief is temporary, it should not be expected to create a concrete link with the main pleading when the lawsuit comes to an end (e.g. in case it becomes stable within the deadline mentioned in § 5 of article 304), then the act of pleading necessarily has to mention this link. This is expressly stated in the head of article 303, in which the “indication of the pleading for the temporary relief” is required, which should be even confirmed (§ 1, section I) – that is the case of interlocutory relief. The same is said about the provisional relief (head of art. 308, and §§ which have several references to the “main pleading”). The temporary relief only makes sense in face of what is potentially definitive. At least, in jurisdictional matters this is how things should work.

This dependent relationship was not arbitrarily determined by the legislator: in case it is filed on an urgency basis or on preponderance of evidence (provisional or interlocutory), the temporary relief is only one way of dealing with controversies, having suitable knowledge and provisions to preserve the usefulness of the final judgment or possibly the anticipation of substantial effects by managing, in the best possible way, the burden imposed on the matter of time in the proceedings. Therefore, as it has been said, there is no way to change this rule by means of an agreement between the parties in the context of the state court proceedings.

Something different one might say about the arbitration: the parties would have liberty to determine that during the proceedings (and that is what we are talking about right now), any urgent provision could be judged by a third person other than the arbitrator or arbitrators who had already been appointed for that purpose. I confess I have some doubts concerning such a range of the procedural availability, even in the case of arbitration: the idea of ​​associating someone’s expertise because of the function they perform is the same, whether it refers to the state jurisdiction or to the arbitral jurisdiction. From the moment that there is a duly constituted arbitration body, and able to decide the controversy, apparently it is not useful to separate that body and the jurisdiction awarded to assess a temporary relief filed on an urgent basis (provisional or interlocutory). One might remember that even in arbitration there is some margin for procedural rules that cannot be waived, which either the Chamber or the panel has the power to reject. Not everything that the parties agree with can be always binding for the Chamber or the arbitrators.

However, the question above lies not only on the freedom that the parties have to contract, but also on the usefulness that, although not intended for the state proceedings, it may have to the parties in the private sector. There would then be a division of functions among different arbitrators in such a way that each one would play the role assigned by the parties, so that they would respect each other’s decisions within their jurisdiction range.

Putting the two things together and back to the state court proceedings, there would not be the possibility of the jurisdiction determined by functional criteria – and just it – to be transferred to an arbitrator, even if the parties come to an agreement about it; as a result, there would be a possible joint action of the state and the arbitral jurisdictions: one in charge of the “main” action and the other in charge of the temporary relief. Back to the beginning, the dependent relationship that results from the law prevents the split, which, moreover, seems to be somewhat rejected by the law, although in a different context, that is, when it established that if the defendant fails to claim for the arbitration agreement in its defense, “it implies the acceptance of the state jurisdiction and the waiver of arbitration proceedings” (article 337, § 6).

Such a separation only seems possible when it comes to a pleading of temporary relief filed on a preceding basis. However, the situation is different then and should be approached separately.