Arbitrability – 1
1-/-1/1973 – Interlocutory Appeal No. 52181 – Brazilian Supreme Court (STF) – Lage Company and Estate vs. Federal Government
Incorporation of navigation companies’ assets into the Federal Government’s assets – national defense related interests – state of war – establishment of arbitration court through Decree-Laws 4648/42 and 9521/46 – fixing indemnification amount – partial breach of condemnation – award executed in court – allegation that arbitration is null due to its nature, origin and purpose – motion to declare Decree-Laws unconstitutional for providing for Federal Government’s non-negotiable right (“non-appealable” clause) – constitutionality of arbitration court.
Arbitrability – 2
5-/-0/1999 – Writ of Mandamus 3066-9 – Federal District Supreme Court (TJDF) – Serveng vs. Brazilian Court of Audit – Federal District (TCU DF)
TCU decision ordering CAESB to refrain from using arbitration to solve contractual disputes – Binding nature of bid notice – Legality of arbitration clause in administrative contracts.
Arbitrability – 3
2-/-0/2002 – Appeal 247646-0 – 7th Civil Chamber of the Paraná State Auxiliary Superior Court (CC TAPR) – Compagás vs. Carioca-Passarelli
Submission agreement – Declaration of nullity dismissed – Appeal – Quasi-public corporation – Submission to private companies’ regime since it is considered engaged in business activity (piped gas services) – Rights and interests involved in an agreement regarding distribution network service provision are fully negotiable – Appeal denied.
Arbitrability – 4
4-/-0/2003 – Complaint 005.250/2003 – 2nd Chamber of the Brazilian Court of Audit (TCU) – FNE vs. CBEE and PIEs
Complaint filed by Federação Nacional dos Engenheiros (National Federation of Engineers – FNE) challenging, inter alia, section 47 of 29 agreements entered into between CBEE Comercializadora Brasileira de Energia Emergencial (Brazilian Trader of Energy for Emergency Purposes) and Produtores Independentes de Energia PIEs (Independent Energy Producers) – Arbitration clause – Agreement for the supply of energy for emergency purposes – Allegation that the arbitration clause is null on the grounds that the rights of public company CBEE are non-negotiable – Assertion that its asset interests are non-negotiable – Law No. 10433/2002 construed as being applicable only to disputes grounded on commercialization of electricity within MAE Mercado Atacadista de Energia (Energy Wholesale Market) – Claim partially granted to remove inadequate sections.
Arbitrability – 5
5-/-0/2003 – Interlocutory Appeal No. 07839/2003 – Rio de Janeiro State Supreme Court (TJRJ) – Eliomar vs. Cesar Maia and Guggenheim
Class action – Claim to annul agreement for the establishment of a Guggenheim Museum in the city of Rio de Janeiro – Agreement containing applicable law clause (NY) and arbitration clause (ICC) – Injunction granted to suspend the agreement immediately – Interlocutory appeal filed by the Rio de Janeiro Municipality – Appeal denied – Allegation that confidential nature of arbitration violates the publicity principle to which Public Administration is subject – Allegation that the application of foreign laws violates the legality doctrine to which Public Administration is subject – Allegation that the Municipality’s rights are non-negotiable and that there is no distinction between agreements “with the Administration” and “administrative agreements” – Trial court’s decision upheld.
Arbitrability – 6
3-/-0/2004 – Case No. 24334 – decision – 3rd Public Treasury Court (VFP) of Curitiba – Copel vs. UEG
Declaratory suit – Arbitration proceedings against a quasi-public corporation – Allegation in court that parties’ agreement to arbitrate (arbitration clause) is null – Statutory provisions invoked: article 1 of Law No. 9,307/96; article 173, 1st paragraph of the Federal Constitution; article 55, 2nd paragraph of Law No. 8,666/93 – Distinction between state-owned companies that provide public services and are engaged in business activity – Both recognized as being subject to Law No. 8,666/93 – Arbitration clause declared null – Declaratory claim granted.
Arbitrability – 7
2-/-0/2004 – Ordinary Appeal 20040026617 – Regional Labor Court (TRT) for the 2nd Circuit – Pedro Camilo vs. Pires Serviços
Cognitive proceedings with claim to declare an agreement entered into during arbitration null – Agreement regarding labor amounts – Employment agreement terminated – Employee appeared before the State of São Paulo Arbitration Court (TAESP) voluntarily and participated in a hearing conducted by an arbitrator he accepted – Supervening homologation of employment agreement termination by the relevant union – Employee alleged economic coercion and being the weak party to the dispute – Document showing that conciliation attempt carried out according to TAESP rules is not cogent, allowing reticent party to refuse to participate or enter into an agreement – Dismissal without prejudice – Agreement considered final and non-appealable, matter not subject to new discussion – Nullity denied – Decision upheld
Arbitrability – 8
9-/-0/2004 – Special Appeal 637055/BA -2nd Panel of the Superior Court of Justice (STJ) – CEF vs. Ataíde
Employment relationship – Allegation that matter is not subject to arbitration – Non-negotiable rights – Validity of arbitral award challenged in court – Article 31 of Law No. 9,307 – Effects of arbitral awards are equivalent to those of court decisions – Arbitral award on employment rights is apt to authorize assessment of the balance of an FGTS (government severance indemnity fund for employees) linked account – Appeal denied