Carta Forense

Concerning the temporary reliefs that had been previously analyzed, the 2015 CPC has set forth the rule which establishes that the jurisdiction should be the one in force for the “main pleading” (article 299, last part), which are the words used in the place of “main action” formerly found in article 800 of the old law.

At first, one cannot speak of functional criteria; at least not in the sense that was approached in the case of an incidental pleading. It means that, since the pleading was filed on a preceding basis, there is not an ongoing lawsuit to be taken as a reference to the jurisdiction rule; the situation is different when the temporary relief is filed on an incidental basis. In fact, the criterion for determining jurisdiction will depend on what had been established by the various rules about jurisdiction set forth both by the CPC as well as by the additional laws. Once again, the narrow relationship of dependence makes it possible to transfer to the temporary proceedings the rule applicable to the main proceedings.

However, once the jurisdiction to plead for the temporary relief is defined, then the jurisdiction towards the permanent relief will be subject – and, this time, functionally – to the organ in charge of the preceding pleading. In fact, this is the way things flow more naturally, even because under the aegis of the 2015 CPC there is no duality of proceedings (one for the pleading of the temporary relief, and one for the “main” pleading). There is just one lawsuit in which both the pleadings for the temporary and for the permanent reliefs are brought – although, in accordance with articles 303 and 308, the moments for the pleadings may (not necessarily must) be split into several moments. The jurisdictional function – comprehending both the temporary and main reliefs – is totally included in one lawsuit, and now perhaps even more clearly to be seen, the jurisdiction really belongs to one single organ. In other words, functionally speaking the organ that has the jurisdiction to the temporary relief is the same one to the permanent relief (and, eventually, will be responsible for future compliance) – as it happens when the pleading for the temporary relief is incidental. The chronological precedence of one of the pleadings does not change the essence of things.

Thus, here we are back to the question that arose when the jurisdiction towards the pleading of the temporary relief filed on an incidental basis was examined: in the case of functional criteria, would it be possible to breach this link by means of an agreement between the parties (art. 190)? Would it be possible, on the pretext that the pleading is now on a preceding basis, to acknowledge the jurisdiction to the temporary relief as belonging to an organ while the permanent relief would be the responsibility of another?

As far as the state jurisdiction is concerned, the acknowledgment that, once again, it is a matter of jurisdiction ruled by functional criteria, the answer remains negative. The activity of the organ is a single one and the termination of the autonomy of the injunction – as stated above – only reinforces this assertion. Now, more than ever, the competence is a single one because there is only one lawsuit that brings together all the activities performed by the judge. Even from the perspective of the territorial criterion (which includes the venue), and which governs the jurisdiction for the “main pleading”, it is not possible to start from it and, in the end, change the jurisdiction, which, and this should be repeated, was ruled by the functional criterion. As an example, it does not seem feasible that the parties choose the district court of São Paulo to the judgment of the pleading of a temporary relief filed on a preceding basis, and another venue to decide on the main pleading (or, another way, to the proceedings and judgment about the decision of the preliminary relief).

Once again, it is the public interest that prevails. At this point it will be necessary to deal with procedural rules that cannot be waived, and there shall be a limit, no matter how much autonomy one intends to confer to those interested parties.

Perhaps one might say something different about the arbitral jurisdiction. However, similarly to what I had said in the previous article, I confess I have some doubts about how much the proceedings can be attainable, even in the case of arbitration: the idea of ​​associating someone’s expertise because of that individual’s occupation is the same, no matter whether it is state or arbitral jurisdiction. What may happen – and this is not so uncommon – is that, given the urgency, the arbitrator (or arbitrators) would not have been appointed yet. In this case the item XXXV of art. 5 in the Federal Constitution establishes the principle that permits the party, as an exceptional case, to go to court and seek for temporary relief until the arbitrators are able to judge. Occasionally the Chamber may appoint one arbitrator exclusively for this function; however, it can only be justified by the same reason: not to let the party lack protection due to the fact that there are not any arbitral organs regularly constituted.  In this case, breaking the unity due to the jurisdiction based on by functional criterion is justified: it is necessary, suitable, and, therefore useful.

But, again, connecting one thing to another and going back to the state jurisdictional proceedings, it would not be feasible to transfer, even if there had been an agreement between the parties, the jurisdiction ruled by the functional criterion – and just it – to an arbitrator, from which it would result a possible joint action of the state and arbitral jurisdiction: the first would be in charge of the “main” relief and the latter would be responsible for the “temporary” relief filed on a preceding basis. In this context, the options are either arbitration, or the state jurisdiction.