Caroline Borges Pantoja
Lawyer at Marcos Martins Advogados
Arbitration, unlike other institutes such as conciliation and mediation, does not primarily aim to solve or even alleviate the crisis of overcrowding in the judicial system. It is much more than that. It is what is known as private justice. Its scope of action is somewhat restricted, and it is fundamentally aimed at resolving disputes relating to available property rights. It has great importance as a mechanism for resolving conflicts, proving to be efficient and more suitable for certain cases[1].
In this scenario, considering that a large part of the conflicts dealt with by the Judiciary originate in consumer relations, the use of arbitration as a form of social pacification is very interesting, and it is worth noting that Brazil is currently among the top five users of this legal mechanism[2].
Despite the fact that arbitration can be costly, the parties involved often prefer it because, among other qualities, arbitration takes place confidentially, so that there is no publicity about the issue under discussion, thus avoiding possible obstacles to commercial negotiations.
Interested parties can submit their disputes to arbitration through an arbitration agreement, which can be made through an arbitration clause or an arbitration commitment.
In view of this, it is pertinent to point out some other characteristics of the subject in question. One of them is that the arbitration agreement, be it an arbitration clause or arbitration agreement, once agreed by the parties concerned, has binding effect. In other words, the parties’ choice to submit existing or future disputes to arbitration is not a compulsory act, and it is entirely optional for those involved to choose this procedure. This is because opting for this means of resolving disputes entails renouncing the state court.
However, once the parties so determine, the legitimate agreement makes it obligatory for the dispute to be resolved solely by the arbitral tribunal. In fact, even if the contract in which the arbitration clause was stipulated is annulled, the agreement is autonomous so that it remains in force and valid.
With this in mind, it is possible to verify the importance of the caution that must be taken when signing a contract that has an arbitration agreement as an option for settling disputes arising from the legal relationship in question.
Thus, the law is concerned with establishing a specific procedure for the validity of arbitration agreements in consumer contracts, because consumers, as already guaranteed by the Consumer Protection Code, are in a position of vulnerability vis-à-vis the company or institution with which they have entered into legal relations, and it is essential that there be differentiation in the treatment of this category.
This is so true that article 51, item VII of the Consumer Protection Code, when dealing with unfair terms in consumer contracts, states that “contractual clauses relating to the supply of products and services that determine the compulsory use of arbitration are null and void, among others”, and it is true that, in a commentary on this provision, Nelson Nery Júnior points out that:
Arbitration is an important factor in settling consumer disputes, which is why the Code did not want to prohibit its constitution by the parties to the consumer contract. The contrary interpretation of the rule under comment indicates that arbitration can be instituted if it is not compulsorily determined. There are several provisions in the Code from which the systemic rule that decisions relating to the consumer legal relationship cannot be taken unilaterally by either party is clear. Therefore, in the system of the Code, a clause that leaves it to the sole and unilateral discretion of the supplier not only to choose between state jurisdiction and arbitral jurisdiction, but also to choose the arbitrator, is abusive, as it also offends the scope of item VII. The option to resolve the dispute in arbitration, as well as the choice of the arbitrator, is a matter that must be decided by the parties in an equitable and balanced manner, without one prevailing over the other[3].
It is very common for business relationships and transactions between companies and consumers to take place through an adhesion contract, in which the consumer cannot adjust or negotiate its provisions, and must submit to the determinations imposed by the supplier if they wish to purchase the service or product offered, a situation which would make the use of the arbitration clause unfeasible, according to the aforementioned legal provision.
Thus, the Arbitration Law (Law No. 9.307/96, amended by Law No. 13.129/15) in its article 4, paragraph 2, states:
Article 4 (…).
2 In adhesion contracts, the arbitration clause shall only be effective if the adherent takes the initiative to institute arbitration or expressly agrees to its institution, provided that it is in writing in a document attached or in bold, with a signature or stamp especially for this clause.
In other words, even if there is an arbitration clause in the contract, if one of the parties is vulnerable, which is generally the case in consumer contracts, it is necessary to fulfill the requirements imposed by the Arbitration Law, such as a signature or special visa for the arbitration clause.
In fact, it is quite common in Portuguese jurisprudence for decisions to understand that an arbitration clause inserted into a contract without complying with the dictates of the Law is invalid, precisely because it affects the very expression of will of the hyposufficient party, so as to rule out the applicability of the institute and, consequently, the jurisdiction of the ordinary courts.
In view of these aspects and given the importance of this inspection, especially in the context of consumer relations, it was decided in Special Appeal No. 1.602.076/SP (2016/0134010-1), by Justice Nancy Andrighi, dated September 15, 2016, that it is also the competence of the Judiciary to examine and decide on the validity of the arbitration clause in adhesion contracts:
SPECIAL APPEAL. CIVIL LAW AND CIVIL PROCEDURE. FRANCHISE AGREEMENT. ADHESION CONTRACT. ARBITRATION. VALIDITY REQUIREMENT OF ART. 4, § 2, OF LAW 9.307/96. NON-COMPLIANCE. PRIMA FACIE RECOGNITION OF A “PATHOLOGICAL” ARBITRATION CLAUSE. ACTION BY THE JUDICIARY. POSSIBILITY. NULLITY RECOGNIZED. APPEAL GRANTED. 1 Special appeal filed on April 7, 2015 and redistributed to this office on August 25, 2016. (2) Franchise contracts, by their nature, are not subject to the protective rules set out in the CDC, as there is no consumer relationship, but rather one of economic development. (3) All adhesion contracts, even those which do not constitute consumer relations, such as franchise contracts, must comply with the provisions of article 4, paragraph 2, of Law 9.307/96. (4) The Judiciary may, in cases where prima facie a “pathological” arbitration agreement is identified, i.e. one that is clearly illegal, declare that clause null and void, regardless of the state of the arbitration proceedings. 5) Special appeal known and upheld.” (REsp no 1.602.076 – SP (2016/0134010-1), rel. Min. Nancy Andrighi, j. 15/09/2016, – DJe: 30/09/2016).
Therefore, if there is any doubt as to the will of the parties in choosing arbitration, which would imply a waiver of ordinary state jurisdiction, the matter will not be assessed or settled by the Arbitral Tribunal, but by the Judiciary, which, according to article 5, item XXXV, of the Constitution, may not exclude any injury or threat to the right. This can be translated into the so-called Kompetenz-Kompetenz principle.
Thus, although Article 8, sole paragraph, of the Arbitration Law states that it is up to the arbitrator to decide on the existence, validity and effectiveness of the arbitration agreement, considering not only the dimension of the consequence that this arbitration clause entails – waiver of review by the state judge, it should also be borne in mind that arbitration is an alternative and optional means of conflict resolution, therefore, the validity of the arbitration agreement may also be assessed by the Judiciary, as this is a matter of concurrent jurisdiction.
In conclusion, if one of the parties is hypo-sufficient, which justifies the application of the Consumer Protection Code, together with the fact that the mandatory requirements of the arbitration agreement have not been met, there can be no waiver of state jurisdiction.
[1] SILVA, Eduardo Silva da. et al. Regras da arbitragem brasileira: comentários aos regulamentos das Câmaras de Arbitragem. São Paulo: Marcial Pons; CAM-CCBC, 2015, p. 15.
[2] SILVA, Eduardo Silva da. et al., loc. cit.
[3] NERY JÚNIOR, Nelson. Chapter VI: contractual protection: arts. 46 to 54. In: GRINOVER, Ada Pellegrini et al. Código brasileiro de defesa do consumidor: comentado pelos autores do anteprojeto. 9. ed. Rio de Janeiro: Forense Universitária, 2007, p. 592.
