Together with other colleagues, I had the honor of attending the above mentioned event, which was held in Brasilia on September 13th and 14th. For those who are not acquainted with the dynamics of such meetings, I remember that it begins with the opportunity to send suggestions of statements, which are compiled and forwarded to different scientific commissions that are in charge of choosing the most suitable and relevant ones. On the first day, the suggestions are discussed before the respective committees, and those approved are submitted to the plenary session the following day. For the approval, a qualified majority is required.
There were commissions focused on the general part, the discovery process, the provisional remedy, the special proceedings, the appeals and precedents and, finally, the execution and satisfaction of the judgment.
Personally speaking, it was a unique experience, and from different angles, very useful.
First of all, it is a highly qualified ambience, not only because of the members of the different commissions but also because of the audience, largely constituted of experienced legal practitioners, who are, at the same time, academics. Secondly, it is an event that – notwithstanding the number of participants – gives chance to a democratic debate, not only for the interventions it entails but also for the cultural diversity it reveals, which is directly proportional to the multiplicity of realities that a country with our dimensions shows. It is interesting to notice how certain issues, which are seemingly unimportant in certain states, are of great relevance in others, what, to a large extent, is a result of us having a single federal law applied to considerably distinct realities. It is also interesting to notice the heterogeneous composition of the audience, which certainly gives rise to a variety of views: it ranges from students to Justices of higher courts. Thirdly, as it should happen in events like those, in addition to the discussions before the committees or in the plenary sessions, there is room for gratifying relationships with fruitful conversations, what makes those events even more remarkable due to the fact that the court in charge of standardizing the interpretation of the federal law (Superior Court of Justice) is open to an ample debate of ideas. It is necessary to value it and to praise this attitude.
Therefore, as a consequence of the significant performance of numerous professionals and a competent coordination the result can only be taken as positive.
Nevertheless, some slightly more critical remarks shall be made, always with a constructive spirit.
From the beginning, one should be careful towards the weight that the selected statements may have. Even though they are submitted to a high quorum, they cannot be considered as effective tools for the protection of the principles under article 926 of the CPC. Notwithstanding the importance of the event and the diversity of its participants, the statements are nothing but references to be considered. Their persuasive power is small, and maybe their greatest contribution is to draw attention to the necessity to go on with the debate until a satisfactory degree of maturity can be achieved to, maybe then, inspire judgments by means of some of the procedures provided by article 927 of the civil procedural law. Therefore, if caution is usually necessary with arguments of authority, in the case of the approved statements one should have prudence.
Moreover, there were lessons given by the approval of many of the proposed statements, but perhaps some of those that were rejected could have offered such or more important reflections. That is: the excellence of the event is not only about what was approved, but maybe about what did not reach the necessary level of consensus.
To illustrate, and regardless the severity of statistics, it is visible the resistance of the plenary against the approval of topics involving the admissibility of the right to professional fees. This could even be a virtue, as it highlights the independence of the debates, immune to any corporatist interference. However, in some cases, the resistance is puzzling. This is the case of the statement which proposed that, once the provisional remedy becomes stabilized and the proceedings are dismissed, the above mentioned amount should be levied. The refusal in the plenary suggests that the majority of the participants will conceive the proceedings in which the attorney’s fees are simply borne by the plaintiff, even if the judgment was in his or her favor; or, worse, the case in which the attorney’s fees remain unpaid. It’s really hard to understand…
It is also noticeable the resistance that, as per the participants’ point of view, may somehow unbalance the relationship between the parties, by giving some of them a position of supposed prominence. Thus, as it had already happened in the previous event, the argument according to which the judge could grant the provisional remedy “ex officio” was rejected, even with the approval (in a committee) that it could be possible in case of interlocutory relief of a preliminary nature – after all, it is of an instrumental nature, and seeks to preserve the usefulness of the final outcome of the proceedings. Similarly, proposals for a greater magnitude concerning challenges or appeals are also seen with high levels of distrustfulness. The fear (with due respect, unfounded) of a multiplicity of actions for relief from judgment, if and when the contents of entry 401 in the precedent set forth by the Superior Court of Justice are reviewed, illustrates well what was said above. As this is a relevant and complex topic, I will dedicate an article to the issue in a forthcoming edition.
In the end, it is quite possible that the non-acceptance of many of the proposals did not take place because of aversion to this or that argument, but only because of a state of indecision which, in the limit, is solved by a simple refusal. It is also necessary to consider that the debates in the plenary sessions are long and tiring and, occasionally, there may be some loss of concentration, which may also be a reason to the lack of approval due to a large number of abstentions. In order to solve the latter, the suggestion is that the computer program that counts the votes should not appraise the quorum considering the ownership of the gadgets used for this purpose (some of the participants are absent from the premises but they do not return the gadgets) but considering the total of the effective votes (for or against). In other words, the qualified quorum would remain, but the universe considered for it would be different. That would mean making both voluntary and involuntary abstentions irrelevant.
Finally, none of those comments undermine the excellence of the event and the usefulness of its results. We hope, therefore, that the initiative perseveres and that other conferences may be arranged.