We have never met each other in person. I appreciate the result of your work, but I almost always do it at a distance – both in space and in time. Contracts are our most relevant link. However, the diversity of our professional areas, the apparent lack of harmony between the goals that are sought by each one of us, the different moments when our professional interventions take place, and the particularities, the hardships and the sufferings inherent to our jobs, among other things, make it difficult – if not impossible – to communicate effectively. That is too bad. I am totally sure that if we were given the opportunity to work together more frequently, even if – because of everything that was mentioned above – we could diverge, I imagine that our work would show potential results, with benefits not only to both of us but also to our clients.
It is not even the case to resort to the old and outworn proverb “united we stand, divided we fall” … I just think that our different professional views, if, on the one hand oppose each other, on the other hand are complementary. At least, they should be. When you idealize contractual clauses – amidst the determinisms that the economic and commercial interests impose (fees and the like) – that protect the substantial interests of your client and are at least acceptable to the other contracting party, you will certainly have in mind the procedural implications that the possible controversy may have, and the most likely solution that the judiciary or the arbitration panel would offer to the problem.
I understand that, especially in the cases of default or failure to pay the debts, you and your colleague acting for the opposing party would establish, as much as possible, material provisions capable of generating reasonably effective incentives or disincentives: penal or resolutory clauses will in part fulfill this role. However, these basic sanctions may not be sufficient and, in face of a conflict, seeking the jurisdiction (even if arbitral) also represents (or may represent) significant costs. They may exceed the amounts that are supposed to be paid to the Chamber, to the arbitrators and to the attorneys, depending on the direction that the contractual relationship will take in view of the crisis that is being discussed there. The proceduralists (which are the academic version of the litigation attorneys) have long spoken about a “marginal damage” that the lawsuits generate, as a way to justify the temporary reliefs (provisional or interlocutory) exactly to extinguish or minimize the risk of such harm. As a matter of fact, it seems that there are few cases in which the arbitrators have granted protection of such nature. Moreover, with the exception of the ICC, the other Chambers acting in the national scenario do not know the figure of the so-called emergency arbitrator…
And about the already existing distance between us, here comes the rule of the art. 190 in the CPC/15, which, as it is known, gave a wider scope to the conventions of the parties in procedural matters.
At first, I thought it could be revolutionary. But gradually and especially in face of the reaction – or sometimes the lack of it – from many colleagues who, like you, do not act in the litigation area, my expectation faded away, between irony (some of them almost a mockery …) and indifference . In fact, it will always be possible to establish procedural conventions in the course of an existing lawsuit. However, as we are aware, by now things have soured somewhat and coming to a consensus even if the idea is to determine the way the suit should follow will be much more difficult. The ideal thing would be that procedural provisions could be included in the contract, like for instance, the arbitration clause. I know it’s hard. Nevertheless, with good will and ingenuity it might be possible to break tradition and innovate. If the limits of the negotiation do not allow this advance, that will be all right. But if we did not test these limits, how would we know that useful provisions could be passed?
Sometimes, procedural provisions do not seem to have this nature: for instance, when it is established in the contract a certain burden to inform or to declare someone’s wish; or even when the silence of the party is qualified; or if a presumption is verified; then, it is potentially about the burden of proof that one is talking about. When the topic of proof is concerned, the above may also occur because basically it is a two-sided rule, which often arises from a substantial planning, repackaged as the requirement for the form of the legal act or the formalization of its accomplishment (material). After all, the contract that is signed and filed is not always exactly the one that will be put into practice by the parties … There will always be engineers … (laugh)
However, there are other suitable and feasible areas for the procedural conventions. One of them is the service of process. Furthermore, you should consider how such acts, when they are set forth in corporate matters, could solve certain insoluble problems that include optional joint actions, standing, and intervention.
In short, these are just some of the topics to explore. The space is small and it is time to finish. However, if we could talk at the right time, maybe something else could be built.
Who knows, one day we may get together for at least a cup of coffee…
I send you my regards, and may God be with you! (Who, as we all know, is not Brazilian, but apparently was involved in litigations from the beginning …)