Post by account_disabled on Mar 12, 2024 23:46:06 GMT -5
Arbitration has been expanding in Brazil since the enactment of Law 9,307/1996, which regulated the institute. However, even before the Arbitration Law, the topic was already the subject of controversy in many resources. Since then, in its decisions, the Superior Court of Justice has honored the institution of arbitration as an extrajudicial solution to conflicts.
Soon after the installation of the STJ, in 1990, when judging Special Appeal 616, the court defined that the distinction between arbitration clause and arbitration commitment has no relevance in the scope of international B2B Lead arbitration. In this case, the ministers deemed the arbitration clause valid, as well as the arbitration ruling set.
The rapporteur of the appeal, Minister Gueiros Leite — now retired — stated that, as the contract is international in nature, the rules of the Geneva Protocol, to which Brazil is a signatory, apply in terms of arbitration. The protocol was ratified by the country in 1932, in Decree 21,187.
The minister cited theory and jurisprudence in the sense that there is no practical distinction between the provisions of the clause and the arbitration commitment.
"In international contracts submitted to the protocol, the arbitration clause dispenses with the subsequent act of commitment and, in itself, is capable of establishing the arbitration judgment", explained Gueiros Leite when rejecting the appellant's thesis — according to which, despite the existence of the clause, there was no express commitment to submit the dispute to arbitration.
Restricted control
After the publication of the Arbitration Law, the STJ had to rule on several of its aspects, especially regarding the rules of articles 38 and 39. When analyzing the Contested Foreign Judgment 507, in 2006, the Special Court recalled that the control judicial approval of the foreign arbitration award is limited to the aspects set out in articles 38 and 39 of Law 9,307/1996, and the merits of the relationship of material law related to the object of the approved award cannot be assessed.
"The ratification act of a foreign sentence is limited to the analysis of its formal requirements. This means that the object of the deliberation in the action to ratify a foreign sentence is not to be confused with that of the process that gave rise to the foreign decision, having no economic content . It is in the execution process, to be initiated after the extraction of the sentence letter, that there may be an intention of an economic nature", commented the rapporteur of the case, minister Gilson Dipp — now retired —, about the appellant's intention to re-discuss the matter facts of the arbitration award during ratification.