Dever de revelaçãosujeitos envolvidos e extensão objetiva

Resumo

The purpose of this study is to discuss the duty of disclosure in Brazilian commercial and institutional arbitrations, especially regarding the role of the parties involved and its substantive limits. Provided for in the sole paragraph of article 14 of the Arbitration Law, the duty of disclosure has a wording composed of very broad and subjective concepts, which has been the subject of interpretative divergence, giving rise to challenges of arbitrators and, more important, annulment lawsuits. Aiming at providing an overview of the subject of study, the paper first places the duty of disclosure in the arbitration context, presenting its importance and the reasons for its existence. It then presents some of the recent cases that have dealt with the issue, highlighting the points of controversy, and presents the latest proposals regarding the duty of disclosure that have generated debate in Brazil, such as the Bill of Law 3.293/21 and the ADPF 1.050 (which aims at proposing parameters of interpretation for the duty of disclosure before the Supreme Court). Before delving into the practical discussion, the study looks into the concepts that form the duty of disclosure, including its nature. The notions of impartiality, independence and justified doubt are discussed, and a proposal of reasoning to be used by the interpreter of the duty of disclosure when faced with the question "to disclose or not to disclose" is introduced. Based on these conceptual premises, the study then turns to the expected roles of the parties, arbitral institutions and arbitrators when it comes to the duty of disclosure, seeking to discuss the limits of the duties of each of these players, and presenting recommendations of conduct. The extension of the duty of disclosure to other players, such as the expert and the secretary of the arbitral tribunal, is also analyzed. Having positioned the roles of the subjects involved in the duty of disclosure, the work also seeks, from a bibliographical and case law framework, to analyze some of the main discussions that touch on the substantive limits of the duty of disclosure, albeit in a non-exhaustive manner. Thus, it discusses the non-exhaustive nature of the situations of suspicion and impediment in the Code of Civil Procedure, as well as the role and limits of the use of the IBA Guidelines in the disclosure process. The study also analyzes the concept of public fact and its relevance to the duty of disclosure. Based on a framework of more than twenty cases, it also analyzes the facts that have been requiring disclosure in practice, and what are the criteria that can differentiate a fact that should be disclosed from one that should not. Next, the issue of joint analysis of the facts for disclosure is also addressed, and the existence of a time frame for the duty to disclose is discussed. At the end, some recommendations for practical action are presented with the conclusions of the work, with the aim of parameterizing and delimiting the duty of disclosure, and, as a consequence, reducing the conflicts surrounding it.

Ficha do documento

Tipo

Dissertação

Ano

2024

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/34973

Palavras-chave

Dever de revelaçãoImparcialidadeIndependênciaDúvida justificadaIBADigestoAção anulatóriaDuty of disclosureImpartialityIndependenceJustified doubtDigestAnnulment lawsuitDireitoArbitragem e sentençaImparcialidade (Direito)DeverResponsabilidade (Direito)