‘CONTRACTING FOR PROCEDURE’: THREE TOPICS ABOUT CONTRACTUALIZED PROCEDURES (AND THEIR POSSIBLE “FAILURE”)

Abstract

Procedural agreements are receiving, over the last few years, substantial academic attention - not only in Brazil, but also in comparative perspective. Nonetheless, some lectors and practitioners are starting to sustain that such element is not achieving the same dimension at reality, which could lead to the conclusion that it has failed. This essay refuses that conclusion, based on three notes: (i) procedural customization is not thought to every case (due to its costs and benefits) and will not always receive extreme shapes; (ii) as a cultural modification, procedural agreements surely could not have an immediate impact - especially due to the current uncertainty about the dimension of its enforcement; and, (iii) since ex ante agreements cannot be fully known, any empirical study of their use might be insufficient. Considering these topics, one must be careful to present any conclusions about the mechanism's fate, since it still incipient in our reality.

Keywords

• procedural agreements
• costs and benefits
• procedural culture
• procedural effectiveness