Volume 11 (2014) / Issue 41
ABSTRACT: This paper addresses the conflict of jurisdiction in arbitration from the perspective of Brazilian law. This subject is important due to its close relationship with fundamental principles of the arbitration system, such as competence-competence, and it became the issue of intense discussions after recent decisions by the Brazilian Superior Court of Justice. More specifically, this paper approaches the positive and negative aspects of the conflict of jurisdiction between (i) arbitrators; (ii) arbitral institutions, focusing on the analysis of the precedent CC STJ 113.260/SP; and (iii) arbitrators and judges; excluding from its scope discussions about consolidations, international lispendens and related topics. It discusses the model of competence-competence adopted by Brazil and other characteristics of arbitration to understand the pathology of the positive conflicts of jurisdiction. Taking into account features of civil procedure, as principles that outline the rules of conflict of jurisdiction between judges (neutrality and hierarchy), and of the arbitration system, as the autonomy of arbitration and the arbitrator's position in relation to the organizational chart of the Judiciary Branch, this paper concludes that the contribution of the state court in the resolution of conflicts of jurisdiction involving arbitral proceedings is inadequate. It ponders on some solutions to the proposed problems, accepting the use of the action of article 7 of the Brazilian Arbitration Law for cases in which there was no positive acceptance of jurisdiction by the arbitrators. Ultimately, it states the inconvenience of opening state courts to discussions about the jurisdiction of arbitrators during arbitral proceedings.
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