*Per Camila Cristina Murta
We are living new times! Everything has changed. Looking at the same situation today, awakens different understandings and interpretations than in the past. There is a paradigm shift in society that affects human relationships and, by logical assumption, legal relationships, after all, evolution is part of the human condition.
In this scenario, alternative means of conflict resolution have been incorporated into the practice of law since 1996, with the approval of the Arbitration Law (Law 9.307/1996). Another relevant milestone was in 2010, with Resolution 125/2010 of the National Council of Justice and, later, the forecast in the Civil Procedure Code of 2015 (Law 13.015/2015) and the Mediation Law (Law 13.140/2015).
Litigation loses strength in the legal world from the observation of the following variables: Judiciary overcrowding, long processing times, vulnerability of litigants, excess resources and failure or lack of communication with the parties. And that's where alternative means of conflict resolution came in.
This change in legal culture is reflected in Chapter XII of the New Bidding and Contracts Law (Law 14.133/2021) in Articles 151 to 154, which brings the institutes of conciliation, mediation, dispute resolution committee and arbitration, as an example, opening space for new extrajudicial methods of conflict resolution.
Well then, how do each of these institutes work?
Conciliation and mediation are self-composing forms of conflict resolution. In them, the parties, with or without the help of a third party, resolve their disputes by consensus. In both mediation and conciliation, a neutral and impartial third party (the mediator or conciliator) assists the parties in settling the conflict. Mediation and conciliation, however, are not the same. The distinction is subtle: while in mediation the third party (mediator) must lead the parties themselves to build the path to agreement, without directly influencing the choices made, in conciliation the conciliator is allowed to play a more active role in conducting the dialogue, presenting suggestions to the parties in the search for a consensual solution[1].
The dispute resolution committee (dispute boards) is a collegiate body, generally formed by three specialists in the subject matter of the contract, indicated by the parties at the moment of the conclusion of the contract. Its objective is to follow up the contractual execution, from the planning until the end of the contract, acting as supervisory agents. And, if summoned, they will act independently and impartially, being able to issue recommendations or decisions, depending on the specific case, in order to present the solution that best interests the full compliance with the contract without causing greater damage. Although it is of little application in Brazil, it is believed that this mechanism may be relevant for the resolution of controversies in contracts of great economic importance and complexity of the Public Administration.
And, arbitration is the mechanism in which an impartial arbitrator and specialist in the concrete case (a third party), by private agreement between the parties, who decides the dispute and not the State judge. Also, under the enforcement regime of the new Code of Civil Procedure, the arbitral award is considered a judicially enforceable title, under the terms of art.515, VII.
Such alternative means reinforce legal certainty and speed in the resolution of conflicts arising from disputes between the public entity and the private entity, obeying the principle of publicity and relating to the available property rights, such as issues related to the reestablishment of the economic and financial balance of the contract, the performance of contractual obligations by any of the parties and the calculation of indemnities.
It is certain that the NLLC incorporated the existing legal provisions of other institutes, however, it brought as an innovation the possibility of amending contracts already signed, so that they can be covered by the adoption of alternative means of dispute resolution, leaving to the judiciary only what it clearly became impossible to compose between the parts.
It is evident, therefore, that the innovation brought by Law 14.133/2021 will allow greater speed and effectiveness for the resolution of disputes between the Public Administration and the private sector. Bringing, therefore, the possibility of obtaining a solution in a short time compared to the Judiciary and obtaining a qualified targeted analysis, which will certainly bring greater advantages for both parties.
That is, its relevance lies in the search for administrative consensus, and the gradual opening of the public contractual harvest for the non-judicialization of its disputes, thus evidencing the high degree of specialization of knowledge required for the understanding and adequate resolution of a specific issue .
*Camila Cristina Murta is leader of the Public Procurement Working Group of the Brazilian Association of Software Companies (ABES). A lawyer specializing in Tenders and Contracts, Public and Technological Governance in Public Administration, Camila Cristina Murta works as a Specialist in Procurement and Strategies in the Public Sector at Amazon Web Services (AWS).
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References:
[1] Christiana Fortini, Tatiana Shrimp, Rafael Sergio Lima de Oliveira – COMMENTS ON THE BIDDING LAW AND ADMINISTRATIVE CONTRACTS – v2
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