Interseções entre arbitragem e poder judiciário: coexistência, limites e efetividade

Abstract

Even if the parties have entered into an arbitration agreement and even if it is possible for arbitration to be initiated, developed and terminated without the intervention of judicial courts, the judiciary is still an essential figure in arbitration, empowered to decide on a number of matters. However, this intersection will not always be peaceful. In recent years, there have been several discussions about claims for which arbitration was contracted, but in which certain matters needed (or did not need, but were) submitted to judicial courts. The outcome of such events will not always be provided in a clear and simple form in the legal system. Often, there will also be no agreement, on the part of arbitration scholars, about the appropriate approach to be followed. In view of these issues, a mistaken perception was created that state courts could represent a risk to the future of arbitration. The Brazilian judiciary, however, in contrast of the complaints directed at it, was not unaware of the need to specialize in the matter. The present study, then, aims to analyze the hypotheses of intersection between arbitration and state courts, with a special focus on (i) the coexistence between both courts, which should not be conflicting with each other, but collaborate with each other, allowing the parties to have multiple doors for access to justice, (ii) the limits imposed on the performance of each of these courts, whose observance tends to preserve the harmony of the relationship and (iii) the effectiveness in the form of conflict resolution, this being the purpose of the parties when electing a method other than the residual one.