Arbitragem e precedentes: uma proposta de sistematização

Abstract

Arbitration is a conflict resolution method based on the parties' private autonomy. It constitutes an act of choice of capable parties, who, in the face of disputes of patrimonial and disposable nature, opt, freely and consciously, to remove the disputes from the examination of the State Courts and submit them to a private adjudicator, carried out by professionals trusted by the parties, chosen by them for this purpose. For this matter, Law no. 9,307/96 assures the parties the possibility of opting between an arbitration based on equity or an arbitration based on law, and, in the latter case, it also allows them to "freely choose the rules of law that will be applied," if they respect "good customs and public order." This method of conflict resolution, with its limits, obstacles, and restrictions, constitutes an autonomous and independent system from the Judiciary and the judicial process. Despite that, historically, decisions taken in the Judiciary Branch about legal issues discussed in arbitration have always permeated the parties' claims and the awards handed down by the arbitrators. With the enactment and entry into force of the 2015 Code of Civil Procedure, which established a system of precedents in the country, the debate around the possible binding of arbitrators to these binding decisions and the resulting impacts has gained traction. This paper seeks to go beyond this discussion and overcome it. It proposes to systematize the interface between arbitration and judicial precedents, defining criteria and evaluating impacts so that such interface can exist harmonically from the choice of arbitration as a form of dispute resolution to the control of validity of arbitration award.