I was fully committed to writing about co-operation in civil procedural law when I was distracted by the following news: there is an ongoing judgment before the Superior Court of Justice in which the Special Court is discussing whether it is possible to establish the so-called incident for the resolution of repetitive demands (IRRD). It appears that in the proceedings of the interlocutory appeal filed in the petition 11.338, the rapporteur Justice Laurita Vaz understood that the incident was restricted to the district courts belonging to the Common Justice (federal and state ones). Disagreement was shown by Justice Napoleão Nunes Maia Filho because in his view the incident would be appropriate under the condition that the controversial issue had not already been affected in a regime of repetitive appeal. The rapporteur apparently argued that the law would generate a significant overload of cases and would “drown in” the Court. On the other hand, Justice Luis Felipe Salomão would have reported that for the SCJ it would be important not to suppress the law since it could act as a kind of release valve (“reserve soldier”): whether and when there was no repetition (because the case had not reached the Court or because there was not an appropriate case to represent), the IRRD could be employed in a subsidiary manner. Finally, it was reported that Justice João Otávio de Noronha postponed the decision and requested a further examination of the case records.

Attracted by the news, although I myself did not directly check the information from the records of the SCJ (that is the reason why the verbs above were used partially in the conditional form), and even running the risk that the decision will already have been  made by the time this article is published (which is not relevant because the opinion herein is not supposed to be of any importance to the final decision), I am temporarily going to leave aside the topic of co-operation and dedicate this article to the above mentioned issue.

As it is known, one of the pillars of the CCP / 2105 is the text of the head of its article 926: “The courts must standardize their jurisprudence and keep it stable, trustworthy and coherent”. In this way, a system that protects values ​​such as isonomy, legal safety and confidence (article 927, paragraph 4, and article 976, paragraph 2) is sought. To that end, not only was the procedure for judging repetitive appeals (or for general repercussions in the case of the SCJ) strengthened, but also new procedures were created, among which the IRRD itself and the incident of assumption of jurisdiction (article 947). Therefore, the interpretation to be extracted from all these procedures – according to the systematic and finalistic criteria – must be consistent with the rule established in art. 926, which  states that provided that there is no risk of undue suppression or misappropriation of jurisdiction (what could even undermine the principle of the natural justice), it is necessary to allow the system to provide the party with as many clear messages as possible in order to generate predictability and, thus, safety.

From this premise, and not without overcoming the potential arguments against it, it seems fair to admit that the IRRD should be originally established even at the appellate courts.

Therefore, there is no way to deny this possibility to the actions whose jurisdiction originates from the appellate courts: in this case, it is pointless to consider a judgment of appeals under the general repercussion or repetitive regime. In fact, the sole paragraph of art. 978 considered this possibility which, if admitted, could even democratize and legitimize the judgment of any theses that may appear – just once or more frequently – in actions of original jurisdiction (and not exactly for appeals).

But even considering only the appeals, some of the provisions in the code might suggest the inadequacy of the incident. For example, when art. 976, paragraph 4, set forth that the IRRD is not appropriate if one of the appellate courts had already indicated an appeal under the repetitive category, the code really focused on the incidents that had been brought before district courts, and, to a certain extent, suggested the incompatibility between the procedures as their concomitance was not feasible. Similarly, when art. 982, paragraph 3, dealt with the possibility of suspending lawsuits under way, the reference was to the district courts, inasmuch as the petition mentioned therein is to be addressed “to the court with jurisdiction to hear a writ of certiorari or a special appeal.” Yet, the text of article 979, paragraph 3, stated that the rule of the provision above could be applied to decisions of repetitive appeals and to the general repercussion of a writ of certiorari, which, unless otherwise understood, would lead to the conclusion that other provisions, other than that mentioned, would not be adequate to the appellate courts .

But the alleged deterrents do not convince.

Firstly, the guess that repetitions and IRRD (article 976, § 4) cannot coexist is logical and is justifiable by the prevalence of the decision of the appellate court, which makes the use of that procedure pointless in a district court. However, that does not prevent the IRRD from originating directly at the appellate court. It is clear that the occurrence of the IRRD at the appellate court will need similar internal coordination, so that useless and even contradictory activities take place. However, this is not a deterrent, and unimaginably, something insuperable. Secondly, the fact that the law forwards the plea for the suspension of the litigation to be examined by an appellate court (article 982, paragraph 3) does not mean that the incident cannot originate at the same court, even because a judgment on a possible stay of proceedings is a characteristic of the standardization procedures, as it happens in the case of repetitive appeals. Thirdly, the text of article 979, paragraph 3, extends the rule of the IRRD to the regime of repetitions and general repercussion, and seeks coherence in what was intended to be a real system of editing decisions with a potential for standardization. That is to say: it is not because the SCJ will ordinarily make use of the procedure of repetitive appeals, and solely for this reason,  the subsidiary procedure, which is also in accordance with the scope sought by the code,  shall be excluded from its area of ​​operation.

Finally, there is the argument – of judicial policy – that the appellate courts may be overwhelmed. This is not something irrelevant: it is clear that, due to the inability of the SCJ to account for its stock of theses with admitted general repercussion, one should question whether it would not be the case of “limiting the limitation”, that is, choosing the most relevant one among those that have already been acknowledged as such. Therefore, the result would be a limitation of theses to be judged within a certain period of time, having a remaining balance lacking a decision. From this debate, the concern expressed by the rapporteur of the lawsuit mentioned in the beginning of the article is judicious: before one recognizes (one more) burden of standardizing, it is really prudent to ask whether the body will be able to give adequate and timely response to the task that has been imposed because, otherwise, the risk of discredit is big.

However, despite the seriousness of purpose that inspired her, the concern does not seem to be enough to justify the refusal of IRRD. In fact, it is enough to be considered as a subsidiary instrument, towards which the procedural interest will only arise if it gets proved, in the concrete case, that standardization is not possible by means of repetitions (or general repercussions). And the role that the Supreme Court has played hitherto in the field of repetition, unless otherwise understood, seems to accredit it to assume the ultimate task to proceed and decide an IRRD, and we shall repeat, even if it is on a subsidiary basis.