A vinculação a precedentes no processo arbitral: alterações promovidas pelo Código de Processo Civil de 2015 e sua interpretação conforme a Constituição brasileira e a Lei de Arbitragem brasileira
This paper aims to shed light on precedents in arbitration, a debate that has been increased after the promulgation of the Brazilian Civil Procedure Code in 2015, which aims to standardize judicial precedents. In the first part, the paper points out some of the changes brought by the Code in o...
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| Formatua: | Artikulua |
| Hizkuntza: | Portugalera |
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2020
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| Sarrera elektronikoa: | https://dialnet.unirioja.es/servlet/oaiart?codigo=7801198 |
| Baliabidea: | Revista de Direito Civil Contemporâneo - RDCC: Journal of Contemporary Private Law, ISSN 2358-1433, Nº. 22, 2020, pags. 31-49 |
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| Laburpena: |
This paper aims to shed light on precedents
in arbitration, a debate that has been increased
after the promulgation of the Brazilian
Civil Procedure Code in 2015, which aims to standardize
judicial precedents. In the first part, the
paper points out some of the changes brought
by the Code in order to increase legal certainty,
such as the strengthening of judicial precedents.
In the second part, the paper questions whether
precedents are applicable to arbitration, initially
indicating a merely structural answer. In the
third part, the paper presents another answer
based on the “civil-constitucional” interpretation,
a school that advocates interpretation of the legal order as a unity, despite the complexity
of its many laws, and centralized n the Constitution.
In the fourth and last part, considering the
binding precedents in arbitration with respect to
fundamental rights and guarantees set forth in
the Constitution, the compatibility of the arbitration
awards with the legal order is defined. Finally,
the paper concludes that even though the
autonomy of parties is recognized and respected
(whenever it is possible to establish arbitration
as a means for resolving disputes), such autonomy
cannot be interpreted exempt from the fundamental
rights contained in the Constitution.
Arbitration is not an independent microsystem
in the legal order and even though the arbitral
award is not subject to review, it does not mean
the arbitrators may automatically decide at their
own desire. In fact, principles of arbitration,
though different from judicial procedures principles,
have some similarities to these. |
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