Negócios jurídicos processuais e tutelas provisórias: um diálogo possível?

Abstract

Article 190 of the 2015 Brazilian Civil Procedure Code introduced powers enabling parties to civil litigation to enter into agreements governing various aspects of the lawsuit in which they are involved. These “atypical” contractual arrangements have been the subject of intense debate amongst legal scholars. The legislative provision is very broadly worded and legal commentators have sought to understand and systematize the procedures by which the parties can agree, prior to or during the lawsuit, to the creation, modification and extinction of certain procedural-legal situations, or to alter the applicable procedural rules, subject, naturally, to the limits set by the legal system. Although there is now general and settled acceptance of many of such possibilities, certain hypotheses have only recently come under greater scrutiny. That includes agreements between litigating parties as to provisional (preliminary, interim and conservatory) relief. The present study examines the possibility of entering into atypical contractual arrangements that stipulate in advance the legal requirements for the granting of such provisional relief or that broaden the circumstances in which the court may grant such relief. The author examines, in the light of the new principles of civil procedure, the limits on such agreements to modify the procedural system of granting provisional relief. In particular, consideration is given to the phenomena of cooperation, procedural flexibility and the contractual nature of civil proceedings.