New decree establishes Resolve network and reinforces the possibility and importance of self-composition of conflicts within the Federal Government

On July 04, 2024, the Brazilian Federal Government published Decree No. 12,091/2024, establishing the Federal Mediation and Negotiation Network (“Resolve”), which aims to organize, promote, and enhance the use of self-composition within Federal Government agencies, bureaus and autonomous bodies (including public foundations).

This new regulation is based on the premise that mediation and negotiation are essential tools for improving management and implementation of public policies. The rules also emphasize the feasibility of a practical application of mediation and negotiation by the Federal Government, as it reduces litigation.

The Resolve network will be an entity aimed at coordinating mediation and negotiation within the Federal Government, divided as follows:

• Superior Board (“Management Committee”): encompasses members from (1) the Attorney General’s Office (“AGU”), (2) the Presidency’s Chief of Staff (“Casa Civil”), (3) the Ministry of Finance, and (4) the Ministry of Management and Innovation in Public Services. Its responsibilities include, among others, monitoring and supporting the activities of Resolve.
• Central Board: exclusively composed of AGU members, who will be responsible for facilitating the Federal Government’s participation in mediation and negotiation procedures.
• Sectoral Mediation and Negotiation Units: responsible for collaborating with the AGU, suggesting best practices, identifying challenges, and proposing measures to enhance self-composition processes.
  • Sectoral Mediation Units, which comprise (1) a Chamber of Mediation and Conciliation of the Federal Government, (2) specialized chambers, and (3) dispute resolution committees to be established within the scope of the federal government.
  • Sectoral Negotiation Units, responsible for conducting transactions or judicial and extrajudicial agreements, with members from (1) the Attorney General’s Office for the National Treasury, (2) the Attorney General’s Office, (3) the Federal Attorney General’s Office, (4) the Central Bank’s Attorney General’s Office, and (5) the General Secretariat for Litigation of the Attorney General’s Office.
• Focal Points, which are public officials, currently in office, appointed by the highest authorities of federal government agencies, bureaus, and autonomous bodies (including public foundations). Among other responsibilities, focal points will assist with negotiations, provide necessary information to Resolve members, and ensure procedural efficiency.

The central role to be played by AGU in Resolve, as Central Board, is noteworthy. Specifically, the participation and advice of the AGU are mandatory when mediations and negotiations involve federal government agencies, bureaus and autonomous bodies (including public foundations), to ensure legal certainty and compliance. Further, according to Article 14 of Decree No. 12,091/2024, the AGU has the prerogative to authorize the participation of federal government agencies, bureaus and autonomous bodies (including public foundations) in consensual dispute resolution procedures within the scope of the Federal Audit Court (“TCU”), which previously occurred without their engagement.

Regarding the new regulation, on July 09, 2024, the AGU published guidelines on agreements within TCU’s mediation and negotiation bureau SecexConsenso, clarifying that its authorization will only be required for requests filed within the TCU as of July 4, 2024. For ongoing consensual solutions, the agreement must solely comply with prior existing regulations, requiring no express prior authorization from the AGU.

Decree No. 12,091/2024 creates opportunities for self-composition within the scope of the Federal Government, facilitating the resolution of disputes and encouraging reduced litigation levels. These potential benefits extend to both public authorities and private parties.

Demarest’s Public and Regulatory Law, Infrastructure and Project Financing and Telecommunications, Media, and Technology (TMT) teams are closely monitoring the development of the matter and remain available to provide any clarifications.