Exception of Arbitration – 1
6-/-0/1997 Interlocutory Appeal No. 197050990 – TASC Court – B&D vs. OK
Agency agreement – Non-Comprehensive arbitration clause – Suit for damages concerning agency services – Lack of standing to sue sustained – Case dismissed without prejudice
Exception of Arbitration – 2
6 -/-0/1998 – Appeal 254852-9 – Minas Gerais State Supreme Court (TJMG) – Mendes Júnior vs. Duferco
Export agreement – Arbitration clause – Execution action grounded on the agreement – Exception of arbitration granted – State jurisdiction denied – Law No. 9,307 immediately applicable, including to agreements prior to such law – Execution dismissed.
Exception of Arbitration – 3
2 -/-1/1999 – Decision – 27th Civil Court of São Paulo (VCSP) – TASA vs. Hunter Douglas
Business association agreement – Lawsuit – Exception of arbitration – Clause providing submission to arbitration by signing an amendment within 30 days after entering into of the agreement – Arbitration clause evidenced – Case dismissed
Exception of Arbitration – 4
4-/-0/2001 – Case No. 000.00.631007-9 – 40th Civil Court of São Paulo – Fontecidam vs. BNP
Cognitive proceeding with a request for condemnation – Claims grounded on breach of a Memorandum of Understanding (MOU) concerning agreement to arbitrate – All-embracing arbitration clause – Defendant alleges that MOU is not a definitive agreement, therefore it cannot generate obligations – Court acknowledged severability of the arbitration clause regardless of the MOU’s limited binding effect – Exception of arbitration granted – Case dismissed
Exception of Arbitration – 5
1 -/-1/2002 – Interlocutory Appeal No. 70004535662 – 2nd Civil Chamber of the Rio Grande do Sul State Supreme Court (TJRS) – AES Uruguaiana vs. CEEE
Quasi-public corporation – Claim for provisional remedy and cognitive proceedings – Exception of arbitration raised during the arbitration session – Defendant’s exception of arbitration – Denied, resuming legal proceedings – Assertion that a) mandatory nature of the agreement to arbitrate violates mandatory jurisdictional control doctrine; b) legal authorization (MP 29/2002 within the scope of the Mercado Atacadista de Energia Elétrica [wholesale electricity market]) gives quasi-public corporations a mere option to arbitrate; c) appearing in an arbitration proceedings in order to raise objections to arbitration does not constitute submission thereto – Construction of arbitration clause confirms such optional nature
Exception of Arbitration – 6
6 -/-0/2002 – Case No. 783/99 – 4th Civil Court of Foz do Iguaçu – decision – Umon vs. Itamon
Company dissolution – Companies (Umon and Itamon) qualified as “special purpose companies” – Extinction of corporate purpose due to the conclusion of the work for which they were incorporated (construction of Itaipu hydroelectric system) – Liquidation impossible in view of outstanding overdue receivables discussed in a lawsuit between Itamon and Itaipu – Consortium agreement prior to Law No. 9,307 – Law No. 9,307 is immediately applicable in view of its procedural nature – Exception of arbitration granted.
Exception of Arbitration – 7
2 -/-1/2003 – Case No. 02075151-5 – Civil Court of Caruaru – Rosyanny vs. Complexo Jurídico
Franchise agreement – Non-Comprehensive arbitration clause – Claim for damages grounded on breach of agreement – Allegation that agreement is null – Exception of arbitration – Lack of jurisdiction acknowledged grounded on the exception of arbitration – Case dismissed without prejudice.
Exception of Arbitration – 8
7-/-0/2004 – Case No. 001.2004.012210-8 – Court of Pernambuco (PJPE) – Zaeli Alimentos vs. Marítima
International agreement for the transportation of grains – Provisional remedy for seizure of ship – Brazilian party alleges injury arising from breach of the maritime transportation agreement and files a motion for provisional remedy of seizure under penalty of not being able to perform condemnatory decision in Brazil – Motion granted – Transportation company’s exception of arbitration – Provisional remedy reversed to authorize limited navigation of the ship – Cognitive proceedings with a claim for damages and declaration of nullity of the arbitration clause – Allegation that arbitration clause is null because inserted in a transportation, thus adhesion, agreement – Allegation that transportation agreements are ruled by the Consumer Code – Distinction between transportation and “voyage charter” agreement – “Voyage charter” agreement is not an adhesion contract because of the volume of cargo and form of occupation of the ship during transportation – Lack of general and abstract rules – In addition, contracting party is not a consumer since it is not the final recipient of the damaged cargo – Motion for provisional remedy and cognitive proceedings dismissed – Cases dismissed without prejudice (art. 267, VII, of the Code of Civil Procedure)