Caroline Borges Pantoja
Lawyer at Marcos Martins Advogados
Arbitration, also known as private justice, is a means of resolving conflicts which, unlike the Judiciary, has a somewhat restricted scope of action. It is used to settle disputes relating to available property rights, i.e. rights that can be waived, assigned or transferred, for example.
The option for private justice can be made in the contract itself, through an arbitration clause which, through it, the parties opt for private justice (Arbitration), to the detriment of the use of state justice (Judiciary), to resolve any conflicts arising from the business instrument.
As has been pointed out, the scope of arbitral justice is not broad and one of its characteristics is the absence of coercive power, i.e. the Arbitral Tribunal does not have the power to coerce society, so decisions handed down by arbitrators can only be enforced by the Judiciary.
A clear example of this are enforcement actions. Let’s explain. If there is a contract with an arbitration clause and amounts to be enforced, arising from an enforceable instrumentof a certain, liquid and enforceablevalue, such as an Instrument of Confession of Debt, the enforcement action must necessarily be brought before the Judiciary, since only the state body has the power of coercion.
Supposing that one of the parties files an enforcement action seeking satisfaction of the claim described in a contract (enforcement instrument) before the Judiciary, requesting that the enforced party be summoned to pay the amounts shown as due, however, once summoned, if the enforced party finds that the amount charged is excessive.
As a rule, the legal means of contesting the judgment would be the motion to stay execution, an instrument of defense against an enforcement action, through which it is possible to discuss issues of merit.
However, considering that the arbitration clause prevents issues of merit from being discussed before the Judiciary, how can the defendant, who feels aggrieved or harmed, discuss them before the enforcement action?
In Special Appeal No. 1.465.535/SP[1], the Superior Court of Justice established that, if the debtor files a motion to stay enforcement before the Judiciary in an attempt to resolve issues of merit, the motion cannot be heard by the state court if the subject matter is broad enough to attack the existence or extent of the creditor’s right under enforcement.
The Supreme Court has also admitted that the state court can only receive and assess execution embargoes on strict matters, such as the irregularity of the attachment, appraisal or sale, for example.
Would an executor who has been notified of the existence of an enforcement action involving a contract with an arbitration clause have a deadline to initiate arbitration?
The position that has been adopted is that, once summoned, the defendant believing that there are issues of merit to be discussed and settled, should, at the earliest opportunity, send a notification to the competent Arbitration Chamber requesting the initiation of arbitration.
By analogy with the 15 (fifteen) day time limit established in article 915 of the Code of Civil Procedure for opposing debtor’s motions, it has been understood that it is up to the debtor, within this same time limit, to apply to the Arbitration Chamber for the arbitration to be opened.[2]
If this is not done, some say that failure to notify the Arbitration Chamber within 15 (fifteen) days of being served with the enforcement action would result in a lack of interest in bringing an enforcement action against the enforcement action and also a loss of the chance to discuss the contract, due to preclusion by the expiry of the aforementioned period.
Returning to the question in the title, is there a time limit? There is no express regulation to this effect in civil procedural law or arbitration law, however the majority interpretation that legal operators have been attributing to this situation is the one described above, so there will certainly be more and more decisions to this effect and, in the future, perhaps it will become a consolidated understanding. So here’s the warning.
[1] STJ. REsp nº 1.465.535 – SP (2011/0293641-3), Rapporteur: Minister Luis Felipe Salomão, DJe 22/08/2016.
[2] CPC/2015. Art. 915. Objections shall be filed within 15 (fifteen) days, counted, as the case may be, in accordance with Article 231.
NEVES, Daniel Amorim Assumpção. Manual de direito procedual civil: volume único. 9ª. ed. Salvador: Editora JusPodivm, 2017. pg. 1090.
