- In the first phase, carried out between August 2007 and March 2008, a database was created containing all judicial decisions from state courts and higher courts (excluding the labor sphere, FGTS surveys and Special Courts) related to arbitration. The decisions issued between November 1996 (date of entry into force of law 9.307/96) and February 2008 were identified (with the exception of the TJSP, whose decisions were collected until December 2007).
- In the second phase, which began in March 2008, the decisions were studied in depth to verify how the provisions of the arbitration law were applied. To this end, the decisions were divided into seven thematic groups:
2nd Phase of the Research “Arbitration and the Judiciary” – Report on the 2nd Theme: Existence, Validity and Effectiveness of the Arbitration Agreement – English Translation
2nd Phase of the Research “Arbitration and the Judiciary” – Report on the Theme: Existence, Validity and Effectiveness of the Arbitration Agreement
2nd Phase of the Research “Arbitration and the Judiciary” – Report on the Theme: Execution and Enforcement of the Arbitral Award
ARBITRATION IN THE COURTS
The conclusions of the research “Arbitration in the Courts”, carried out by lawyers Antônio Carlos Rodrigues do Amaral and Letícia Mary Fernandes do Amaral Viggiano, were recently published in the newspapers O Estado de São Paulo and Valor Econômico and also at an event held at the São Paulo Trade Federation on June 21, 2007.
These conclusions have caused distrust among the lay public regarding the effectiveness of arbitration in our country and also regarding its suitability as a private method of resolving disputes involving available property rights.
According to the authors, “the risks involved with arbitration are high” since the research indicates that the Brazilian Judiciary is annulling almost half (44%) of the arbitration awards issued, and furthermore, that the national courts are not extinguishing the case due to an arbitration clause in more than half (51%) of the cases in which an arbitration clause is present.
The Brazilian Arbitration Committee (CBAr), composed of numerous Brazilian professionals and academics with extensive experience in domestic and international arbitration, has a different perception of the Brazilian arbitration reality.
The practical experience of CBAr members demonstrates that civil and commercial arbitration, especially after the 2001 decision of the Federal Supreme Court that declared the provisions of the Arbitration Law constitutional, has been consistently developing as a useful and effective way to resolve disputes involving available property rights. Furthermore, arbitration has enjoyed broad acceptance and collaboration from the Brazilian Judiciary.
Despite all due respect to the authors, the CBAr understands that the methodological criteria and premises used in the preparation of the research referred to herein are not sufficient to support the conclusions drawn from it, as can be seen from the following findings:
1) only cases brought to the attention of the Judiciary were investigated, without taking into account the number of arbitrations carried out and arbitration awards issued during the period studied in Brazil and which did not come to the attention of the Judiciary because they were voluntarily complied with; international statistics indicate a high degree (over 90%) of spontaneous compliance with arbitration awards;
2) the research covered the period from 1997 to 2001, when relevant provisions of the Arbitration Law were having their constitutionality questioned before the Federal Supreme Court, and ignored the developments of the last 6 (six) years, when arbitration has experienced vigorous growth in the country;
3) Of the 416 decisions assessed:
a) 181 cases – termination of the legal proceedings due to the existence of an arbitration agreement. The reason for termination is not specified. Were these clauses pathological?
b) 9 cases – specific execution of the Arbitration Clause. The decision is not disclosed. What was the result?
c) 55 cases – annulment action, of which 31 were dismissed and 24 were granted. The matter dealt with is not disclosed.
d) 75 cases – incidental and procedural matters, such as execution of arbitration awards, preliminary matters on the merits (art. 301 of the CPC), injunctions, etc. What was the result? In favor of or against arbitration?
e) 25 cases – coercive and precautionary measures in general (it seems to us, perhaps, prior to the initiation of arbitration). In favor of the initiation of arbitration?
f) 46 cases – FGTS (Federal Court and TRF), of which 43 were deemed admissible.
g) 15 cases – approval of foreign arbitration award, of which 10 were granted and 5 were denied.
In view of the above, the Brazilian Arbitration Committee does not share the conclusions reached in the research carried out and will conduct scientific research in order to demonstrate and extract a real x-ray of the application and use of arbitration in our country.