Lawyer

11/17/1997 – Process 4234/97 – Full Council of the Federal Council OAB – Art. 21 of law 9307 – Lawyer

Claim of unconstitutionality of art. 21, par. 3, of law 9307 – Recommendation of the College of Presidents of the OAB – Proposal for intervention with the Legislative Branch to identify the unconstitutionality, due to the mandatory presence of a lawyer – Mandatory presence of a lawyer and his indispensability in the administration of justice constitutionally guaranteed – Rejection of the thesis of unconstitutionality – Judgment in the sense of inadvisability of adoption of measures by the OAB regarding art. 21, par. 3 of law 9307 before gathering practical experience in arbitration, under penalty of confusing such initiative with “mere corporate interest aimed at reserving the labor market”
17/11/1997 – Processo 4234/97 – Conselho Pleno do Conselho Federal OAB – Art. 21 da lei 9307 – Advogado

2001 – Instrument Appeal 197978-4/0 – TJSP – TRW/Celso Varga

Suspension of arbitration proceedings by means of preliminary injunction – Appointment of arbitrator by the defendant in the arbitration – Subsequent questioning of arbitrability and constitutionality of the arbitration law in court – Reasonable grounds for suspension – In case of doubt, the state monopoly of jurisdiction prevails – Appeal dismissed.
2001 – Agravo de Instrumento 197978-4/0 – TJSP – TRW/Celso Varga

2002 – Case 00109052374 – 2nd VFP Porto Alegre – RGE/AES

Precautionary action – Request for an order to suspend the institution of arbitration and its continuation, under penalty of a daily fine – Dispute regarding an electricity sales contract – Communication, by AES Sul Distribuidora to Rio Grande Energia SA, of the institution of arbitration according to the ICC rules – Consideration, by the Honorable Judge, that the headquarters of the secretariat (in Paris) is contrary to the arbitration clause, by providing for Porto Alegre as the place of arbitration – Consideration, further, that the adversarial system and full defense are violated due to the fact that the arbitration is in a foreign language and there is a need to hire an interpreter through bidding, with reduced time to present a defense – Acknowledgement that a mixed-capital company cannot be a party to arbitration, given the unavailability of interests – Preliminary injunction granted.
2002 – Processo 00109052374 – 2ª VFP Porto Alegre – RGE/AES

2003 – Case 24334 – preliminary injunction – 3rd VFP Curitiba – Copel/UEG

Contract involving a public company – Full arbitration clause – Action seeking to declare the clause null and void – Anticipatory injunction to suspend the instituted arbitration – Characterization of “periculum in mora” by notifying the plaintiff to present a defense in the arbitration – “Fumus boni iuris” characterized by the presence of public interest – Granted.
2003 – Processo 24334 – antecipação de tutela – 3ªVFP Curitiba – Copel/UEG

2004 – Case 160213-7 – decision – TJPR – UEG/Copel

Precautionary action – Judgment pending review by virtue of an appeal – Judgment determining that the appellant “refrain from continuing the arbitration process, under penalty of a daily fine” – Appeal without suspensive effect – Proof that the Appellee will participate normally in the procedural acts in the arbitration – Acknowledgement that the prohibition on the practice of acts in the arbitration violates procedural constitutional principles – Suspension of the abstention order granted – Suspension of the incidence of the fine.
2004 – Processo 160213-7 – decisão – TJPR – UEG/Copel

2004 – Case 134330 – TJSP – Kaplan/Syncor and others

Precautionary action – Injunction seeking to suspend the institution of arbitration – Service provision and lease agreement entered into between Brazilian parties, containing an arbitration clause – Filing, by some of these, of a lawsuit for cognizance (compensation) against another, Brazilian party, and its foreign controlling company – Acceptance, in this lawsuit, of an exception to arbitration (in relation to the Brazilian party) – Also acceptance, of a preliminary claim of passive illegitimacy (in relation to the foreign legal entity) – Pending appeal against the merely conclusive sentence – During the pendency of the appeal, institution of arbitration by the Brazilian parties filing the lawsuit for cognizance – Claim, by the defendants, of existence of lis pendens – Granting of the injunction, for immediate suspension of the institution of arbitration.
2004 – Processo 134330 – TJSP – Kaplan/Syncor e outros

1973 – Instrument of Appeal 52181 – STF – Organization and Estate of Lage/Union

Incorporation of assets of shipping companies into the assets of the Union – interest in national defense – state of war – institution of arbitration court by DLs 4648/42 and 9521/46 – determination of compensation – partial non-compliance with the ruling – judicial enforcement of the award – allegation of nullity of the arbitration due to its nature, origin and purpose – allegation of unconstitutionality of the DLs for dealing with an unavailable right of the Union (“no appeal” clause) – constitutionality of the arbitration court.

1999 – Writ of Mandamus 3066-9 – TJDF – Serveng/TCU DF

TCU Decision – Determination to CAESB to refrain from using arbitration to resolve contractual issues – Principle of binding to the public notice – Legality of the arbitration clause in administrative contracts.
1999 – Mandado de Segurança 3066-9 – TJDF – Serveng/TCU DF

2002 – Appeal 247646-0 – 7th CC TAPR – Compagás/Carioca-Passarelli

Arbitration agreement – ​​Declaratory claim of its nullity dismissed – Appeal – Mixed economy company – Submission to the regime of private companies, due to the qualification of the activity as exploration of an economic activity (exploration of piped gas services) – Full availability of the rights and interests involved in a contract regarding the provision of distribution network services – Appeal dismissed.

2003 – Representation 005.250/2003 – 2nd C TCU – FNE/CBEE and PIEs

Representation of the National Federation of Engineers FNE – Challenge, among others, to clause 47 of 29 contracts between CBEE Comercializadora Brasileira de Energia Emergencial and Independent Energy Producers PIEs – Arbitration clause – Emergency energy supply contracts – Claim of invalidity of the clause, due to the unavailability of the rights of CBEE, a public company – Claim that its patrimonial rights are unavailable – Interpretation that law 10433/2002 is restricted to disputes based on the commercialization of electric energy within the scope of the MAE Wholesale Energy Market – Partial provision for the exclusion of undue clauses.

2003 – Instrumental Appeal 07839/2003 – TJRJ – Eliomar/Cesar Maia and Guggenheim

Popular action – Request for annulment of contract for installation of Guggenheim Museum in the city of Rio de Janeiro – Contract contains choice of law clause (NY) and arbitration clause (ICC) – Injunction for immediate suspension of contract granted – Instrumental appeal filed by the Municipality of Rio de Janeiro – Appeal dismissed – Claim that confidentiality of arbitration violates the principle of publicity to which the Public Administration is subject – Claim that application of foreign law violates the principle of legality to which the Public Administration is subject – Claim that the rights of the Municipality are unavailable, with no distinction between contracts “with the Administration” and “Administrative contracts” – First instance decision upheld.
2003 – Agravo de Instrumento 07839/2003 – TJRJ – Eliomar/Cesar Maia e Guggenheim

2004 – Case 24334 – judgment – ​​3rd VFP Curitiba – Copel/UEG

Declaratory claim – Mixed-capital company sued through arbitration – Allegation, in court, of nullity of arbitration agreement (arbitration clause) – Legal provisions invoked: art. 1 of law 9307/96; art. 173, § 1 of the Federal Constitution; art. 55, § 2 of law 8666/93 – Distinction between state-owned companies providing public services and those operating economic activities – Acknowledgement that both are subject to law 8666/93 – Arbitration clause declared null and void – Declaratory claim upheld.
2004 – Processo 24334 – sentença – 3ª VFP Curitiba – Copel/UEG

2004 – Ordinary Appeal 20040026617 – TRT 2 Region – Pedro Camilo/Pires Serviços

Demand for information with request for declaration of nullity of an agreement entered into in arbitration – Agreement regarding labor benefits – Employment contract terminated – Employee voluntarily appeared before TAESP, participating in a hearing before an arbitrator accepted by the latter – Termination of the employment contract subsequently approved by the Union of the professional category – Allegation of economic coercion and insufficiency by the employee – Documents evidencing that the attempt at conciliation carried out according to TAESP rules is not binding in nature, and the reticent party may refuse to participate or enter into an agreement – ​​Judgment extinguishing the lawsuit, without judgment on the merits – Recognition of the effect of res judicata on the agreement and the impossibility of re-discussing the case – No nullity – Judgment upheld.

2004 – Special Appeal 637055/BA – 2nd Panel of the Superior Court of Justice – CEF/Ataíde

Employment relationship – Claim that it deals with a matter not subject to arbitration – Unavailable rights – Validity of arbitration award challenged in court – Art. 31 of Law 9307 – Equivalence of the effects of the arbitration award to those of the court ruling – Recognition that the arbitration award dealing with labor rights is a valid document to authorize the withdrawal of the balance of an account linked to the FGTS – Appeal dismissed.

2008 – Instrumental Appeal 531.020-4/3-00 – Special Chamber for Bankruptcy and Judicial Recoveries, TJSP – Diagrama Construtora (Bankrupt) and Bankrupt Estate of Diagrama Construtuora Ltda./ Jackson Empreendimentos Ltda.

Instrumental Appeal. Bankruptcy. Judicial challenge seeking credit qualification based on arbitration award. Promissory note clause agreed upon in a building construction contract signed between the parties. Contractual breach giving rise to termination of the contract and filing of a lawsuit before the Arbitration Chamber. Subsequent declaration of bankruptcy of the defendant. Intervention of the Bankruptcy Estate’s Judicial Administrator in the arbitration proceeding, alleging the incompetence of the Arbitration Court, given the bankrupt’s lack of procedural capacity and the unavailability of the debtor’s assets, based on article 25 of Law no. 9,307/96, arguing that the lawsuit should be brought to the Universal Bankruptcy Court. Continuation of the arbitration lawsuit, with the debtor being ordered to pay compensation set by the Arbitration Chamber. Inapplicability of article 6, § 1, of Law no. 11,101/2005, since, since the lawsuit concerns a net amount, the proceedings are not suspended due to the debtor’s bankruptcy, there being no “vis attractiva” of art. 76, “caput”, and the arbitration proceeding should proceed with the judicial administrator who will represent the bankrupt estate, under penalty of nullity. Inapplicability of article 117 to the arbitration agreement. There is no legal provision for the Public Prosecutor’s Office to intervene in arbitration proceedings in which the bankrupt estate is a party, especially in light of the veto to Article 4 of Law No. 11,101/2005, which did not maintain a rule similar to Article 210 of Decree-Law No. 7,661/45. The inclusion of the credit recognized by the Arbitration Court in the General List of Creditors of the bankrupt company is legitimate, for the amount determined by the arbitration court, limited to monetary adjustment and interest up to the date of the bankruptcy decree, pursuant to Articles 9, item II and 124, both, of Law No. 11,101/2005. The appeal was partially granted to grant the challenge and qualification of the appellant’s credit, subject to the limits established above.
2008 – Agravo de Instrumento 531.020-4/3-00 – Câmara Especial de Falências e Recuperações Judiciais TJSP – Diagrama Construtora (Falida) e Massa Falida de Diagrama Construtuora Ltda./ Jackson Empreendimentos Ltda.

2008 – Ro Trt/00259-2008-075-03-00-2-ro*00259200807503002* – Trt 03 – Minas Gerais Mediation and Arbitration Chamber S/s Ltda X Labor Prosecutor’s Office

Arbitration and individual labor disputes possibility concept of unavailability of rights – legal effects.
2008 – Ro Trt/00259-2008-075-03-00-2-ro*00259200807503002* – Trt 03 – Câmara De Mediação E Arbitragem De Minas Gerais S/s Ltda X Ministério Público Do Trabalho

2005 – Appeal 174874-9 – 1CC TJPR – Interim Relief – Copel/Energia E. Pedrinho

Popular Action regarding the validity of electricity supply contracts – Electricity contracts subject to arbitration claims previously instituted before the FGV Chamber of Mediation and Arbitration – Arbitration court instituted – Arbitration court rejects request for suspension of arbitration due to the subsequent popular action – Request, by Copel, for judicial suspension of arbitration claims – Request granted in first instance of jurisdiction – Appeal filed – Request for interim relief – Interim relief granted, to authorize immediate resumption of arbitration proceedings

2005 – Unnamed Appeal 174874-9/02 – 1CC TJPA – Ruling – Copel/Energia E. Pedrinho

Popular Action concerning the validity of electricity supply contracts entered into with a mixed-economy company – Popular action preceded by arbitration demands in which a request for a ruling based on the contracts is made – Arbitration court formed – Rejection of the request for suspension of the arbitration by the Arbitration Court – Request for the issuance of a court order to suspend the arbitrations, on the grounds that they would deal with unavailable rights – Claim of the existence of external procedural prejudice – Decision of the rapporteur of the Instrument of Appeal, in anticipation of appeal protection, authorizing the immediate resumption of arbitration proceedings suspended by a decision handed down in the first instance of jurisdiction – Unnamed appeal filed by Copel, with the intention of reversing a decision anticipating the effects of the appeal protection – Unnamed appeal dismissed
2005 – Agravo Inominado 174874-9/02 – 1CC TJPA – Acórdão – Copel/Energia E. Pedrinho

03/14/2011 – Instrumental Appeal 0284191-48.2010.8.26.0000 – 5th Public Law Chamber of the TJSP – Judgment – ​​Via Amarela Consortium/São Paulo Metro Company – METRO

Instrumental Appeal – Writ of Mandamus – Preliminary injunction granted to suspend the arbitration court’s determination to ensure the performance of engineering expert evidence – Inadmissibility – Absence of periculum in mora and fumus bonis iuris – Absence of any irregularity committed by the Arbitration Court – Appeal granted.
14/03/2011 – Agravo de Instrumento 0284191-48.2010.8.26.0000 – 5ª Câmara de Direito Público do TJSP – Acórdão – Consórcio Via Amarela/Companhia do Metropolitano de São Paulo – METRO

12/20/2005 – Case 2004.209.003666-3 – 2VC Barra da Tijuca – Rainbow/Safe et all.

Demand for annulment of an arbitration agreement in the form of an arbitration clause – Purchase and sale and service provision contracts – Full clauses – Claim of invalidity, as they are found in adhesion contracts and imply an unconstitutional exclusion of the guarantee of access to the jurisdictional bodies – Termination of the case without judgment on the merits, based on art. 267, VII, of the Code of Civil Procedure

2003 – Instrumental Appeal 815580-0/9 – 2nd TACSP – Atlântica/Marbor

Hotel management contract – Arbitration clause – Demand for compensation – Claim of arbitration exception by the defendant – Rejection in the first instance of jurisdiction, on the grounds that the contract containing the arbitration clause would qualify as an adhesion contract – Claim, further, that the plaintiff would qualify as a disadvantaged party – Instrumental Appeal filed – Consideration of memoranda of understanding as evidence of the negotiations undertaken – Recognition that both parties have equal negotiating power (large-sized companies) – Granting of the appeal – Recognition of the validity of the arbitration clause – Dismissal of the proceeding, without judgment on the merits.
2003 – Agravo de Instrumento 815580-0/9 – 2ºTACSP – Atlântica/Marbor

2004 – Appeal 157238-9 – TJPR – Euroinsta/Siemens

Demand for information conveying a collection request – Credit originating from a service provision contract – Arbitration agreement in the form of an arbitration clause – Arbitration exception conveyed by the defendant – Claim that the contract in which the arbitration agreement is inserted qualifies as an adhesion contract – Absence of an addendum or indication of the clause in bold or affixing a special visa – Proceedings dismissed in the first instance due to lack of action, in the form of lack of interest in acting – Recognition, by the court “a quo”, that the parties have the capacity to negotiate the contractual terms, in light of their respective sizes, the status of the companies that control them and the likelihood of having the assistance of internal legal departments – Rejection of the thesis that the contract qualifies as an adhesion contract – Upholding of judgment – ​​Appeal dismissed
2004 – Apelação 157238-9 – TJPR – Euroinsta/Siemens

1996 – SEC 5206-7 – STF – vote by Min. Sepúlveda Pertence – MBV/Resil

Judgment on the incident of examination of the constitutionality of the arbitration law in light of the principle of the inalienability of judicial control
1996 – SEC 5206-7 – STF – voto Min. Sepúlveda Pertence – MBV/Resil

1997 – SEC 5206-7 – STF – MP opinion – MBV/Resil

Ruling on the incident examining the constitutionality of the arbitration law in light of the principle of indefeasibility of jurisdictional controlet, consectetur adipiscing elit. Ut elit tellus, luctus nec ullamcorper mattis, pulvinar dapibus leo.
1997 – SEC 5206-7 – STF – parecer do MP – MBV/Resil

2000 – SEC 5206-7 – STF – vote by Min. Nelson Jobim – MBV/Resil

Judgment on the incident of examination of the constitutionality of the arbitration law in light of the principle of the inalienability of judicial control
2000 – SEC 5206-7 – STF – voto Min. Nelson Jobim – MBV/Resil

2001 – SEC 5206-7 – STF – vote by Min. Ilmar Galvão – MBV/Resil

Judgment on the incident of examination of the constitutionality of the arbitration law in light of the principle of the inalienability of judicial control

2001 – SEC 5206-7 – STF – vote by Min. Marco Aurélio – MBV/Resil

Judgment on the incident of examination of the constitutionality of the arbitration law in light of the principle of the inalienability of judicial control

2001 – SEC 5206-7 – STF – vote by Min. Maurício Corrêa – MBV/Resil

Judgment on the incident of examination of the constitutionality of the arbitration law in light of the principle of the inalienability of judicial control

2001 – SEC 5206-7 – STF – summary and ruling – MBV/Resil

Ruling on the incident of examination of the constitutionality of the arbitration law in light of the principle of inalienability of judicial control

2001 – SEC 5206-7 – STF – vote by Min. Néri da Silveira – MBV/Resil

Judgment on the incident of examination of the constitutionality of the arbitration law in light of the principle of the inalienability of judicial control

2001 – SEC 5206-7 – STF – vote Min. Sydney Sanches – MBS/Resil

Judgment of the incident of examination of the constitutionality of the arbitration law in light of the principle of inalienability of judicial control
2001 – SEC 5206-7 – STF – voto Min. Sydney Sanches – MBS/Resil

2001 – SEC 5206-7 – STF – vote Min. Carlos Velloso – MBV/Resil

Judgment on the incident of examination of the constitutionality of the arbitration law in light of the principle of the inalienability of judicial control
2001 – SEc 5206-7 – STF – voto Min. Carlos Velloso – MBV/Resil

2005 – SEC 5206-7 – STF – Vote Min. Ellen Gracie – MBV/Resil

Judgment on the incident of examination of the constitutionality of the arbitration law in light of the principle of inalienability of judicial control
2005 – SEC 5206-7 – STF – Voto Min. Ellen Gracie – MBV/Resil

05/18/2005 – SEC 856 – STJ 2005/0031430-2 Special Court – L´Aiglon/Têxtil União

Recognition of contested foreign judgment – ​​Claim that a contract contained in the arbitration agreement, in the form of an arbitration clause, does not have the express signature of the party against whom the recognition is requested – Recognition, by the STJ, that material acts of fulfillment of material obligations related to the commercial contract contained in the arbitration agreement imply acceptance of the arbitration agreement – ​​New York Convention – Recognition granted
18/05/2005 – SEC 856 – STJ 2005/0031430-2 Corte Especial – L´Aiglon/Têxtil União

2002 – Instrumental Appeal 1085233-4 – 1ºTACSP – Gevisa/GVA

Service provision contract – Dispute decided by arbitration – Subsequent claim that the contract is for commercial representation – Claim that rights governed by law 4886/65 are unavailable – Declaratory demand for nullity of arbitration award based on lack of arbitrability – Request for preliminary injunction to suspend effects of arbitration award, including its characterization as an enforceable title – Interim relief denied – Decision confirmed in appeal.
2002 – Agravo de Instrumento 1085233-4 – 1ºTACSP – Gevisa/GVA

2002 – Appeal 20942/02 – TJRJ – Doux and Frangosul/W.M. Empreendimentos

Arbitration award – Claim that it exceeds the limits of the arbitration agreement – ​​Claim that it adopts a judgment criterion (equity) not authorized by the parties – Interpretation of the arbitration agreement – ​​Attenuation of procedural formalism – Appeal dismissed.
2002 – Apelação 20942/02 – TJRJ – Doux e Frangosul/W.M. Empreendimentos

2003 – Appeal 386180-7 – TAMG – Comercial Barros/Estate

Partial dissolution of a partnership – Agreement of the parties in the course of a legal dispute, submitting the controversy to arbitration – Determination of the assets of a deceased partner in arbitration – “Ad hoc” arbitration – Demand for annulment of the arbitration award – Claim that judicial review is applicable in cases of violation of the legal order or nullity – Claim that the arbitration award is “extra petita” – exhaustiveness of the hypotheses provided for in art. 32 of law 9307 – Judgment of dismissal of the lawsuit – Judgment confirmed on appeal.

2007 – Case 583.00.2007.116858-6 – TJSP – 2nd Civil Court – Racional Engenharia Ltda./Rio do Brasil Projetos Ltda.

Action to nullify an arbitration award – Allegation of hindrance of defense, given the arbitrators’ refusal to produce expert accounting evidence – Allegation that the arbitration award is null and void because it ruled contrary to the evidence in the records and because it failed to observe the requirements set forth in art.26 of Law 9,307/96, in particular the grounds – Rejection of the initial claim and termination of the proceedings without resolution of the merits – Impossibility of questioning the merits of the arbitration award before the Judiciary – Jurisdictional nature of the arbitration award.
Data on the Action to Annul the Arbitration Award:
2007 – Processo 583.00.2007.116858-6 – TJSP – 2ª Vara Cível – Racional Engenharia Ltda./Rio do Brasil Projetos Ltda – Dados da Acão Anulatória do Laudo Arbitral
Judgment of the Annulment Action of the Arbitration Award:
2007 – Processo 583.00.2007.116858-6 – TJSP – 2ª Vara Cível – Racional Engenharia Ltda./Rio do Brasil Projetos Ltda – Sentença da Acão Anulatória do Laudo Arbitral

2007 – Instrumental Appeal 1106247-0/0 – TJSP – 2nd Civil Court – Racional Engenharia Ltda./Rio do Brasil Projetos Ltda. and Arbitration and Mediation Center of the Brazil-Canada Chamber of Commerce

Action for Nullity of arbitration award with request for preliminary relief (withdrawal of the effects of the arbitration award issued, until the trial of the dispute) – Initial petition denied by the first instance court and termination of the case without resolution of the merits – Filing of an appeal, with request for receipt in the active effect, suspending the effectiveness of the arbitration award – Receipt only in the devolutive effect – Filing of Instrumental Appeal – Appeal admitted and dismissed.
2007 – Agravo de Instrumento 1106247-0/0 – TJSP – 2ª Vara Cível – Racional Engenharia Ltda./Rio do Brasil Projetos Ltda. e Centro de Arbitragem e Mediação da Câmara de Comércio Brasil-Canadá

06/05/2003 – Special Appeal 238174 SP – STJ – Campari/Stock

Contracts signed in 1971 – Legal action after the arbitration law – Arbitration clause – Action involving third parties who were not signatories to the contracts – Existence of a forum selection clause in some of the contracts covered by the cause of action – Unfounded arbitration exception – Perfect legal act, the effects of which must be produced in accordance with the law in force at the time of execution.
06/05/2003 – Recurso Especial 238174 SP – STJ – Campari/Stock

1997 – Appeal 191/97-070 C – 6CC TJRJ – Biobrás/Merck

Negotiations regarding the extension of technology transfer, raw material supply and brand use contracts – Previously terminated contracts – Negotiation documents containing an arbitration agreement in the form of an arbitration clause – Unsuccessful negotiations, with termination of the contractual legal relationship without signing of extension terms – Compensation claim conveying a request for an order to pay compensation, based on the frustration of duties during the negotiation – Arbitration exception raised by the defendant – Refusal – Refusal to attribute a positive effect to the arbitration clause, due to the fact that the negotiation documents were not used in the formation of contracts – Appeal dismissed
1997 – Apelação 191/97-070 C – 6CC TJRJ – Biobrás/Merck

2002 – Appeal 28808/2001 – 6CC TJRJ – Evadin/Mitsubishi

Termination of long-term contract – International contract, involving parties of different nationalities – Contract containing an arbitration agreement in the form of an arbitration clause – Contract prior to the enactment of law 9307 – Claim regarding compensation resulting from the termination of the contract – Claim that the arbitration clause has the nature of substantive law, governed by the law in force at the time the contract was entered into (absence of positive effect of the arbitration clause) – Claim that the positive effect of the arbitration clause violates the principle of inalienability of judicial control – Claims refuted – Appeal dismissed

2005 – Special Appeal 712566/RJ – STJ – Espal/Wilhem Fette

Representation Contract entered into in 1955, prior to the enactment and entry into force of Law 9307 – Contract containing an arbitration agreement in the form of a full arbitration clause – Characterization of the contract as an international contract, given that it was entered into in Germany – Demand for knowledge extinguished without judgment on the merits, based on the innovations brought by Law 9307 and the Brazilian Code of Civil Procedure – Arbitration exception raised and accepted – Maintenance of the extinguishing sentence in the second instance of jurisdiction – Special Appeal discussing the occurrence of a violation of the rules regarding the non-retroactivity of laws – Indication that the effect of the arbitration exception would be the same (extinction) based on the subsumption of the contract to the Geneva Protocol of 1923 – Assertion that innovations brought by the arbitration law to the Code of Civil Procedure have immediate effect, when deal with procedural effects.
2005 – Recurso Especial 712566/RJ – STJ – Espal/Wilhem Fette

2008 – Civil Appeal No. 70023007396 – TJRS – CORAQUIM INDUSTRIA DE PRODUTOS QUIMICOS E REPRESENTACOES LTDA x TFL ITALI S.P.A.

CIVIL APPEAL. UNSPECIFIED PRIVATE LAW. COLLECTION ACTION. GOODS DISTRIBUTION CONTRACT. PURCHASE AND SALE. ARBITRATION CLAUSE. DEPARTURE OF BRAZILIAN JURISDICTION IN FAVOR OF ITALIAN COURT IN MILAN.

1. ARBITRATION CLAUSE. The matter is intrinsic to the scope that the principle of autonomy of will has acquired in Brazilian law – to the point that, even if there is no violation of public order rules, Brazilian jurisdiction can be excluded from the assessment of cases in which the contracting parties, making use of this autonomy, have elected a special (and foreign) forum to resolve any disputes that may arise from the contract entered into.

According to the approach given to the issue here, arbitration presupposes international legal relations. In other words, for it to be defined in this way, there must be some element of foreignness, some atypical component in the relationship that makes it subject to the rules of Private International Law – either subjectively (the parties having their domicile in different countries); or objectively (the place where the obligation is fulfilled).

While enshrining autonomy of will, the legal system, on the other hand, imposes restrictions based on public order rules – which cannot be repealed even by mutual consent. Therefore, the clauses stipulated in the contract, including those regarding arbitration, are in conflict with the so-called mandatory rules.

In this case, considering that the clause was established between capable and non-disadvantaged parties; in writing; expressly regarding both its existence and its scope; without violating public order; fitting into the hypotheses of manifestation of autonomy of will; having as its object available property rights (purchase and sale of goods), it is not up to the Judiciary to examine the claim of the plaintiff – which, in no way, would characterize a violation of the provisions of art. 5, XXXV, of the Federal Constitution.

Hypothesis of dismissal of the case without judgment on the merits, based on art. 267, item VII, of the Code of Civil Procedure.

1997 – Instrument Appeal 197050990 – TASC – B&D/OK

Commercial representation contract – Empty arbitration clause – Action seeking compensation for representation services – Claim of lack of action due to lack of interest in acting – Dismissal of the case without judgment on the merits
1997 – Agravo de Instrumento 197050990 – TASC – B&D/OK

1998 – Appeal 254852-9 – TJMG – Mendes Júnior/Duferco

Export contract – Arbitration clause – Leasehold of enforcement proceedings based on the contract – Acceptance of arbitration exception – Exclusion of state jurisdiction – Immediate incidence of law 9307 including on contracts prior to it – Termination of enforcement.

1999 – Sentence – 27th VCSP – TASA/Hunter Douglas

Commercial association contract – Leasehold of legal claim – Arbitration exception – Clause providing for the election of an arbitration court by means of an addendum up to 30 days after the execution of the contract – Characterization of an arbitration clause – Termination of the process
1999 – Sentença – 27ªVCSP – TASA/Hunter Douglas

2001 – Case 000.00.631007-9 – 40th VC São Paulo – Fontecidam/BNP

Demand for information conveying a request for judgment – ​​Requests based on alleged non-compliance with a Memorandum of Understanding MOU containing an arbitration agreement – ​​Full arbitration clause – Claim by the defendant that the MOU is not a definitive agreement, being devoid of the ability to generate obligations – Recognition, by the Honorable Judge, of the autonomy of the arbitration clause despite the limitation of the binding effectiveness of the MOU – Acceptance of an arbitration exception, with termination of the case.

2002 – Instrument Appeal 70004535662 – 2nd CC TJRS – AES Uruguaiana/CEEE

Mixed-capital company – Leasehold of precautionary and knowledge demands – Attendance at arbitration with presentation of objections to its continuation – Exception to arbitration filed by the defendant – Rejection, with continuation of legal proceedings – Claim that a) the mandatory nature of the arbitration agreement violates the principle of inalienability of judicial control; b) legal authorization (MP 29/2002, within the scope of the Wholesale Electric Energy Market) establishes a mere faculty to arbitrate for mixed-capital companies; c) attendance at arbitration, to present objections to it, does not constitute submission – Interpretation of the wording of the arbitration clause, furthermore, confirming its optionality
2002 – Agravo de Instrumento 70004535662 – 2ª CC TJRS – AES Uruguaiana/CEEE

2002 – Case 783/99 – 4th VC Foz do Iguaçu – judgment – ​​Umon/Itamon

Dissolution of Company – Companies (Umon and Itamon) qualified as “special purpose companies” – Corporate purpose extinguished upon completion of the work for which they were created (construction of the Itaipu hydroelectric system) – Impossibility of settlement due to pending receivables already under discussion in court between Itamon and Itaipu – Consortium contract prior to Law 9307 – Recognition that Law 9307 has immediate application, given its procedural nature – Arbitration exception accepted.
2002 – Processo 783/99 – 4ª VC Foz do Iguaçu – sentença – Umon/Itamon

2003 – Case 02075151-5 – VC Caruaru – Rosyanny/Legal Complex

Franchise agreement – ​​Empty arbitration clause – Claim for compensation for breach of contract – Claim of nullity of the contract in defense – Arbitration exception raised – Acceptance of preliminary objection of lack of jurisdiction of the Court based on the arbitration exception – Dismissal of the case without judgment on the merits.
2003 – Processo 02075151-5 – VC Caruaru – Rosyanny/Complexo Jurídico

2004 – Case 001.2004.012210-8 – PJPE – Zaeli Alimentos/Marítima

International grain transportation contract – Preliminary demand for vessel arrest – Brazilian party, claiming to be injured by breach of maritime transportation contract, requests preliminary arrest under penalty of being unable to enforce the judgment in Brazil – Preliminary injunction granted – Arbitration exception raised by the defendant carrier – Amendment of the preliminary injunction to authorize limited navigation of the vessel – Demand for knowledge conveying a request for a conviction to pay compensation and a request for a declaration of nullity of an arbitration clause – Claim that an arbitration clause is null and void because it is inserted in a transportation contract and, as such, an adhesion contract – Claim that a transportation contract is governed by the Consumer Protection Code – Distinction between a transportation contract and a “voyage charter” contract – Disqualification of a “charter” contract per trip” as a contract of adhesion due to the volume of cargo and the manner in which the vessel is occupied during transportation – Absence of general and abstract rules – Contracting party, furthermore, does not qualify as a consumer, as he is not equivalent to the final recipient of the damaged cargo – Initial petitions for the precautionary demand and the demand for knowledge denied, with termination of the proceedings without judgment on the merits (art. 267, inc. VII, CPC)

1998 – Appeal 058385-4/0 – TJSP – Corduroy/TCT

Arbitration award – Action seeking approval – Dismissal without judgment on the merits – Lack of interest in acting – Approval waived – Confirmation of the award – Appeal dismissed
1998 – Apelação 058385-4/0 – TJSP – Corduroy/TCT

2003 – Appeal 296036-4/4 – TJSP – Celso Varga/TRW

Full Clause – Claim that the provision of mandatory effect of the clause, according to art. 5 of law 9307/96, would imply unconstitutionality (CF, art. 5, inc. XXXV) – Declaratory claim of nullity of arbitration clause – Claim prejudiced by the judgment of the incident of unconstitutionality by the STF, regardless of its effectiveness “inter partes”.

2003 – Appeal 393297-8 – TJMG -GKW/ DaimlerChrysler

Preliminary demand for suspension of protest – Demand for declaration of invalidity of duplicates – Demand seeking conviction not to do so (order to abstain from forwarding new titles for protest) – Simultaneous judgment – ​​Duplicates issued under a service provision contract – Dispute over performance of the contract – Arbitration agreement – ​​Full clause – Judgment accepting request for suspension and abstention order “until the disagreement on the same is resolved in the arbitration court” – Judgment reformed – Decree of dismissal of the declaratory demand without judgment on the merits, due to lack of action – Maintenance of the judgments handed down in the demands for suspension of protest and imposition of abstention order.
2003 – Apelação 393297-8 – TJMG -GKW/ DaimlerChrysler

2003 – Appeal 70005269360 – TJRS – Ieda Mattia/Barbara Gavenda

Lease agreement – ​​Arbitration clause – Empty clause – Action seeking to enter into an arbitration agreement in court – Unfounded – No mandatory arbitration – Art. 5, item XXXV, Federal Constitution
2003 – Apelação 70005269360 – TJRS – Ieda Mattia/Barbara Gavenda

2003 – Special Appeal 450881 DF – STJ – Americel/Compushopping

Empty Arbitration Clause – Resistance to the institution of arbitration – Action seeking judicial institution – art. 7 of law 9.307 – Allegation of violation of art. 5, inc. XXXV, CF – Appeal not heard
2003 – Recurso Especial 450881 DF – STJ – Americel/Compushoppping

1 – CBAr – Ruling nº 2

1 – CBAr – Acórdão nº 2

2 – CBAr – Ruling nº 7

2 – CBAr – Acórdão nº 7

3 – CBAr – Ruling nº 19

3 – CBAr – Acórdão nº 19

4 – CBAr – Ruling nº 32

4 – CBAr – Acórdão nº 32

5 – CBAr – Ruling nº 37

5 – CBAr – Acórdão nº 37

1999 – Foreign Sentence 5847 – STF – Aiglon/Teka

Purchase and Sale Agreement – ​​Full arbitration clause – No consumer relationship – Adhesion contract not characterized – Attendance of the defendant in the arbitration – Prior approval at the place of the decision is not necessary – Approval granted
1999 – Sentença Estrangeira 5847 – STF – Aiglon/Teka

2000 – Foreign Judgment 5378 – SFT – Tardivat/B. Oliveira

Foreign Judgment – ​​Approval – Requirements – Immediate application of law 9.307 – Citation – Appearance of a representative without powers does not compensate for absence of citation – Approval denied
2000 – Sentença Estrangeira 5378 – SFT – Tardivat/B. Oliveira

2000 – Foreign Sentence 5828 – STF – Elkem/Conan

Charter agreement – ​​Full arbitration clause – Arbitration instituted before law 9.307 – Participation of the defendant in the arbitration – Claim of nullity of citation – Citation according to art. 39, sole paragraph, of law 9.307 – Immediate incidence – Judgment ratified
2000 – Sentença Estrangeira 5828 – STF – Elkem/Conan

2002 – Foreign Sentence 6753 – STF – Plexus/Santana

Purchase and sale agreement – ​​Full arbitration clause – Institution of arbitration by the seller – Appointment of arbitrator by the buyer – Contract not signed by the buyer – Absence of arbitration agreement – ​​Insufficient appointment of arbitrator for submission to arbitration – Need for express and unquestionable manifestation of will – art. 37, subparagraph II, law 9,307 – Approval denied
2002 – Sentença Estrangeira 6753 – STF – Plexus/Santana

2005 – Foreign Judgment 831 – STJ – SPIE /INEPAR

FOREIGN JUDGMENT. ARBITRATION COURT. INTERNATIONAL CONTRACT SIGNED PRIOR TO THE EDITION OF THE ARBITRATION ACT (9,307/96). DEFAULTED CONSORTIUM AGREEMENT. BRAZILIAN COMPANY INCORPORATING THE ORIGINAL CONTRACTING PARTY. APPROVED JUDGMENT.

1. International consortium agreement, with express arbitration clause, entered into between French and Brazilian companies.

2. The defendant company, upon incorporating the original contracting party, assumed all the rights and obligations of the assignor, including the arbitration clause in question, included in the Consortium Agreement that was in default by it.

3. Immediate application of the Arbitration Law to contracts containing an arbitration clause, even if signed prior to its enactment. Precedent of the Special Court.
4. Arbitration award ratified

2005 – Sentença Estrangeira 831 – STJ – SPIE /INEPAR

2005 – Case 2005-145858 – Opinion TJRJ – Response to official letter 120/2005 from SEDCON

State Secretariat for Consumer Protection – Request, by official letter, for a position from the Court of Justice of the State of Rio de Janeiro, regarding a request to create an “agreement” between the Superior Court of Arbitration Justice (STJA) – Report of occurrences in the State of Rio de Janeiro, in which the Court of Justice repudiated abuses committed by entities supposedly protected by the arbitration law (search and seizure of “magistrates” cards, self-authorization to carry weapons, use of the symbol of the Federative Republic of Brazil) – Irregularities related to arbitration entities – Reprimand for the purpose of creating confusion through the use of terms specific to the laws on judicial organization and the code of civil procedure – Issuance of an opinion expressing reservations to SEDCON regarding the actions of entities arbitration, without making a specific value judgment on the aforementioned STJA.
2005 – Processo 2005-145858 – Parecer TJRJ – Resposta a ofício 120/2005 do SEDCON

2005 – Appeal 70004 02 3669/2002 – TJRS – MP/Rubem Molina

PUBLIC CIVIL ACTION. MISLEADING ADVERTISING. ART. 37, OF THE CDC. ADVERTISING DISPLAYED IN THE MEDIA FOR THE ORGANIZATION OF A COURSE FOR ARBITRATION JUDGES AND MEDIATORS, GUARANTEEING HIGH SALARIES, THE POSSIBILITY OF WORKING IN ALREADY ESTABLISHED CHAMBERS AND SPEAKERS WHO DID NOT CONFIRM THEIR PARTICIPATION. INFORMATION THAT DID NOT CONFORM TO REALITY. WHENEVER AN ADVERTISEMENT IS CAPABLE OF MISLEADING THE CONSUMER, EVEN IF THIS IS NOT THE ADVERTISER’S INTENTION, IT IS CHARACTERIZED AS MISLEADING, AS PROVIDED FOR IN THE CONSUMER PROTECTION CODE. SENTENCE UPHELD. APPEAL DISMISSED. UNANIMOUS.

2005 – Case 1.26.000.001944/2004-74 – MPF – PE Attorney General’s Office – “TJF”

Representation filed by a lawyer – Request for investigation of the body entitled “Federal Court of Arbitration Justice of Brazil – TJF” – News of the institution’s use of coats of arms and symbols of the Republic – News, further, of the offering of courses for the training of arbitrators and the production/provision of “arbitration judge” cards – Institution located in a location that affects the activity of the Federal Attorney General’s Office in Rio de Janeiro – Declination of attribution, by the Federal Attorney General’s Office in Pernambuco, in favor of the Federal Attorney General’s Office of Rio de Janeiro.
2005 – Processo 1.26.000.001944/2004-74 – MPF – Procuradoria PE – “TJF”

2005 – Appeal 700008060246 – TJRS – MPRS/AJAB

“Collective” Action based on alleged violation of Consumer Code rules – Allegation, by the Public Prosecutor’s Office, that an arbitration institution engages in misleading advertising – Misleading advertising characterized by a lack of effective clarifications about the institution’s activities and the services provided by the institution – Characterization, furthermore, of collective interest resulting from the “harmful repercussions” of the practice portrayed “on the institution of arbitration, causing discredit and bad reputation to the class of arbitrators and mediators in general” – Lawsuit deemed admissible for accepting requests for conviction to pay/refund amounts received and reversion of funds to the Fund for the Reconstitution of Assets of Injured Parties – Sentence upheld.

04/04/1990 – Special Appeal 616 RJ – STJ – Lloyd/Ivarans Rederi

Geneva Convention of 1923 (Decree 21.187/32) – International contract – Conflict between domestic law and international treaty – Formal aspects – Appearance of the party makes up for any insufficiency of the arbitration clause to oblige the institution of arbitration.
04/04/1990 – Recurso Especial 616 RJ – STJ – Lloyd/Ivarans Rederi

09/24/2002 – Instrument Appeal 1111650-0 – 1ºTACSP – Total Energie/Thorey

Arbitration agreement in the form of an arbitration clause – Choice of law applicable to the substantive matter – Validity – art. 2 of law 9,307 – Principle of autonomy of will.
24/09/2002 – Agravo de Instrumento 1111650-0 – 1ºTACSP – Total Energie/Thorey

1999 – Instrumental Appeal 123567-4/9 – TJSP – AGA/Mansur

Arbitration clause – Drafting – Indication of the use of arbitration as a faculty – Arbitration exception rejected – Instrumental appeal dismissed
1999 – Agravo de Instrumento 123567-4/9 – TJSP – AGA/Mansur

2004 – Appeal 220697-3 – TJPR – Montreal/Umon and others

Dissolution of a company – Articles of association prior to Law 9307 – Full clause – Subjective limits of the arbitration agreement – ​​Binding of the parties in the Articles of Association, without extension to non-signatory third parties – Accepted passive illegitimacy – Procedural nature of the rules contained in the Arbitration Law – Immediate effectiveness – Absence of violation of the guarantee of the inalienability of judicial control

12/06/2003 – Instrument Appeal 285411-4/0 – TJSP – CAOA/Renault

Demand for declaration of nullity – Partial judgment – ​​Interim relief regarding suspension of ongoing arbitration – Claim of invalidity of future final judgment – ​​Absence of authorizing requirements – Interim relief denied.
12/06/2003 – Agravo de Instrumento 285411-4/0 – TJSP – CAOA/Renault

2003 – Case 1999.61.00.005617-8 – 1V Federal SP – Embratel/NovaDutra

Precautionary action initially processed by the São Paulo State Court and forwarded to the Federal Court due to the involvement of a federal agency – Request for a preliminary injunction analyzed and granted by the 37th VCSP – Consideration regarding the deadline for filing the main lawsuit, the preliminary injunction was granted – Consideration regarding the “forum” competent to process and judge the main lawsuit – Understanding, by the Federal Court, that filing the main lawsuit “in the administrative sphere” would contravene “the legal provision regarding the need to file the main lawsuit in the same Court where the precautionary measure is being processed, within 30 days from the granting of the requested preliminary injunction” – Dismissal of the case, on the grounds that the main lawsuit had not been filed within the legal thirty days, due to the use of arbitration (Mediation and Arbitration Chamber of São Paulo).

2003 – Instrumental Appeal 2003.03.00.57088-5 – TRF 3 Region – Embratel/Nova Dutra

Instrumental Appeal against a decision that receives an Appeal with merely devolutive effect – Appeal filed for review of a judgment extinguishing a precautionary demand, on the grounds that the “main action” had not been filed within thirty days from the granting of a preliminary injunction in a precautionary proceeding – Request for advance relief of the appeal in the context of an Instrumental Appeal, with the aim of reestablishing an injunction whose effectiveness had ceased with the advent of the extinguishing judgment – ​​Advance relief of the granted appeal – reconstitution of an injunction while the Appeal is pending, with the realization of judicial deposits of amounts due
2003 – Agravo de Instrumento 2003.03.00.57088-5 – TRF 3 Região – Embratel/Nova Dutra

2005 – Instrumental Appeal 373141-4/4-00 – TJSP – Walpires/Bovespa

Preliminary action filed by a Securities Brokerage Firm against a Stock Exchange, requesting a court order not to apply, by the latter, a sanction preventing the Brokerage Firm from operating – Injunction granted and subsequently revoked due to the existence of an arbitration clause inserted in the bylaws of the aforementioned Stock Exchange after the enactment of Law 9307 – Instrumental appeal filed against such revocation – Claim, by the appellant, that there is adherence to the bylaws of the Stock Exchange, in the absence of an expression of intent to make such arbitration clause binding – The argument was accepted by the Court – Appeal granted to reinstate the injunction.

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