Estado de Direito, Precedente e Arbitragem: a vinculação dos árbitros aos precedentes judiciais como pressuposto da unidade e da coerência do Direito

Abstract

This thesis aims to reveal that arbitrators are bound by judicial precedents. To reach that conclusion, an incursion was made in the origins of the Rule of Law until reaching the actual democratic stage, in which it is the Constitution that legitimizes the legal system. In fact, the Constitution, especially in Brazilian tradition, ensure rights and duties, many of them with undefined legal concepts, and also states the uniformization of the law, which able to reach the legal certainty and equality, founding principles of the (democratic) Rule of Law. However, in order to achieve these objectives, a greater attention to the Supreme Courts’ precedents is needed. The binding force of judicial precedent, regardless the legal system of each country (civil law or common law), is also a necessary matter to achieve equality and legal certainty. In conclusion, judicial precedent must be read as a source of law by adjudication. Thus, it deems important to say that arbitration, although a private way to dispute resolution, works as a private court. And if arbitrators exercise adjudicatory power, then they are binding by the Supreme Court precedents. Finally, it analyses which are the effects whether arbitrators non-compliance binding precedents; in this sense, and in attention of the Brazilian Arbitration Act statutes, it concludes that is possible, in specific circumstances, vacate arbitral awards.