Cumprimento das decisões arbitrais: estudos para aprimoramento do sistema

• Ano de defesa: 2019
• Autor(a) principal: Nascimbeni, Asdrubal Franco
• Orientador(a): Finkelstein, Cláudio
• Tipo de documento: Tese
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Estudos Pós-Graduados em Direito
• Departamento: Faculdade de Direito
• País: Brasil
• Palavras-chave em Português: Arbitragem (Direito); Jurisdição; Cumprimento de sentença; Arbitragem e sentença
• Palavras-chave em Inglês: Arbitration (Law); Jurisdiction; Enforcement of the arbitration award; Arbitration and award
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://tede2.pucsp.br/handle/handle/22497

Arbitration, as an important jurisdictional means of conflict resolution, it shall be as self-sufficient as possible in relation to the Judiciary. In our thesis, therefore, we indicate ways of providing this greater autonomy for domestic arbitrations, specifically with regard to compliance with the awards rendered by the arbitrators (when such decisions are not spontaneously performed by the losing party) and also for awards that require practice, by third parties, of administrative acts to produce broad effects - as is the case, particularly with decisions of constitutive nature and also with merely declaratory decisions. These third parties shall respect and effectively comply with the arbitration awards, since the latter are compared with judicial decisions, avoiding the illogical and onerous need of the Judiciary, since the content of such decisions does not often require the performance of coertio, or execution acts, as maximal expressions of the ius imperium, which might imply a necessary participation of the Judiciary. Furthermore, on the contrary to what is usually stated, the arbitrators hold portions of the ius imperium and, as the Brazilian Arbitration Law itself provides, it is the duty of the arbitrators to comply with and respect the principles of the due legal process, we understand that the arbitrators may perform acts to enforce their awards which, due to the lack of a legal express provision, may be carried out by agreement with the parties that integrate the arbitration procedure, as long as they do not offend public order either. Although, in these specific aspects, the parties and the arbitrators may be reluctant to accept that the latter may practice such acts, at least if they perform activities aimed at complying with their awards, using the aid of the judge only for possible enforcement of acts of coercion, dispossession, or expropriation, through a direct request from the arbitrator to the judge, this will already serve to improve the system of compliance with arbitration awards. In order to do so, we assume that the functus officio of the arbitrator will not necessarily occur after the rendering of the award, and he may practice sequential acts, provided that they do not entail any modification of his own decision - in this case, the parties must agree with the arbitrator that he performs such activities as a corollary of respect of the principle of private autonomy of will inherent to arbitration. All we propose will not remove from the Judiciary the broad maintenance of control over arbitration - which, however, would be exercised in inverted form: the burden of the Judiciary provocation would be the debtor’s, thus favoring the seeking for compliance with the obligation imposed on the arbitration award