ANSWERED FOREIGN JUDGMENT 5206 – AgR
RAPPORTEUR : JUSTICE SEPÚLVEDA PERTENCE
DECISION DATE : DECEMBER 12, 2001
Subject: Arbitration Law and clause compromissoire
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.
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.
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