Os avanços da arbitragem no Brasil e uma análise crítica a respeito dos posicionamentos existentes na Doutrina Nacional sobre o cabimento de ação anulatória contra sentença arbitral que tenha violado a ordem pública

Resumo

The aim of this paper is to examine the admissibility of motions to vacate (ação anulatória) – as provided for in article 32 of the Arbitration Law – against a domestic arbitration award which violated public policy. The relevance of the issue arises from the fact that the legislative draftsmen, in listing the situations in which a [foreign] arbitral award might be set aside, purposely included violation of public policy as one of the grounds. The issue has not yet been the subject of a ruling by Brazilian courts. There was concern, at the time the 1996 Law of Arbitration was drafted, that if article 32 made express provision for violation of public policy, all arbitration procedures would end up being referred to state courts, given the lack of certainty as to the concept. Furthermore, there was significant resistance to arbitration in Brazil at that time, and parties rarely had recourse to it. The debate assumes even greater proportions in the light of analysis of the grounds upon which the Judiciary may refuse recognition of a foreign arbitral award. The legislative draftsmen expressly and purposely provided that violation of public policy was to constitute grounds for refusal of recognition of foreign awards, but remained silent in relation to domestic awards. I analyze, in this paper, many of the advances made by arbitration in Brazil and conclude, in the first part of the paper, that the legislative draftsmen’s concerns no longer carry weight. I then analyze the current position adopted in Brazilian legal doctrine, in order to answer the central question posed in this study: Is it possible to file a motion to vacate against a domestic arbitration award which violates public policy, even in the absence of express provision for such action in article 32 of the Law of Arbitration? Finally, in the last chapter of the paper I set out my conclusion that it is indeed possible to file such a motion to vacate, on the combined grounds of article 32, IV and article 2, paragraph 1, both of the Law of Arbitration.

Ficha do documento

Tipo

Outro

Ano

2012

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Não informado

Identificador

oai:repositorio.fgv.br:10438/11142

Temas

Políticas Públicas

Palavras-chave

Law of Arbitration: article 32Motion to vacate - Domestic arbitration awardAdmissibilityViolation of public policyLei de arbitragemArt. 32 da Lei nº 9.307, de 23 de setembro de 1996Ação anulatóriaSentença arbitral domésticaCabimentoViolação à ordem públicaDireitoArbitragem (Processo civil) - BrasilOrdem pública (Direito)