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ANSWERED FOREIGN JUDGMENT 5206 – AgR RAPPORTEUR : JUSTICE SEPÚLVEDA PERTENCE DECISION DATE : DECEMBER 12, 2001 Subject: Arbitration Law and clause compromissoire Facts: Due to the request of recognition of a foreign arbitral award that resolved the conflict between two corporations, the Full Court incidentally examined the constitutionality of Law 9307/96, which regulates arbitration in Brazil. Issue: Is the Arbitration Law constitutional, considering: a ) it introduces the clause compromissoire of arbitration, through which the parties agree to submit future contract disputes to arbitration; b ) in cases where a clause compromissoire exists and one party refuses to submit a conflict to arbitration, it allows the other party to seize the Judiciary to compel the resisting party to arbitration. Decision: The Full Court by majority decided that the Arbitration Law is constitutional and that points a and b do not violate the principle of free access to the judiciary prescribed in article 5, XXXV of the Federal Constitution, which stipulates: “the law shall not exclude any injury or threat to a right from the consideration of the Judicial Power.” There were four dissenting votes, which considered the mentioned provisions unconstitutional. Full text of the decision in Portuguese |
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