O controle judicial e o devido processo arbitral com atenção especial na prova e na fundamentação das decisões

Abstract

This thesis examines the overlap of practices between arbitral tribunals and the state court with the focal point on proof and freedom of judgement for cause. The reason for this overlap of practices, the legal gaps, are of diverse nature, in special considering the historical-cultural aspect and the absence of rules on topics that should have to be observed by arbitral tribunals. Before seeking a solution for the discussions brought up throughout this research, it is necessary to consider the concept of proof and the interaction of the rules of substantive and adjective law on the matter. Based on that concept as a solution to fill the legislative gap on the matter, it will be possible to apply the Code of Civil Procedure (CPC/2015) in arbitrations, in compliance with Brazil’s law on rules of evidence and on freedom of judgment (instead of just using the rule regarding the placement of the burden of proof as if this rule could solve all cases). As a working methodology, in order to show the overlapping of court activities, the precedents of the Superior Court of Justice will be examined with regard to the ratification of the judgement and the application of the concept of 'public policy'. Regarding the ineffectiveness of using only the rules regarding the placement of the burden of proof in relation to the proof and the development of freedom of judgement, the research not only goes over the burden of proof as an inappropriate concept, but also analyzes sixteen cases in order to set forth what it seeks to sustain. Furthermore, regarding the development of judge’s freedom of judgement, the rules of CPC / 2015 were studied separately, thus leading to the conclusion that they only serve to motivate the ruling itself and, therefore, cannot be dismissed by the will of the parties.