Vinculação dos árbitros a teses jurisprudenciais formadas no Poder Judiciário

Abstract

The dissertation aims to uncover whether arbitrators are bound by jurisprudential theses established within the Judiciary. To achieve this, the first chapter, after clarifying terminological issues, provides a historical exposition of the role of judicial decisions in shaping legal systems within the common law and civil law traditions, particularly in Brazil, as well as the classification of jurisprudence in the study of legal sources in our legal system. In the second chapter, the study asserts the inapplicability of the Code of Civil Procedure to arbitration while situating arbitration within the framework of general procedural theory, highlighting the consequences of this observation. Additionally, the second chapter addresses the relationship between ancillary rules to the binding system established by the Code of Civil Procedure and arbitration, as well as whether, even if bindingness is established, this would render the arbitral award vulnerable to annulment under the LArb. The third chapter conducts a detailed analysis of decisions and theses established by the Supreme Federal Court on constitutional matters, which can take different forms, produce various effects, and entail varying degrees of bindingness, all in light of the unique role assigned to the Court by the Federal Constitution. In the fourth chapter, reasoning lines developed in specialized literature that focus on the subject to articulate conclusions contrary to those defended in this study are presented and contrasted. The fifth and final chapter addresses special situations of apparent but non-existent bindingness of arbitrators to some of the jurisprudential theses that bind judges. Ultimately, the conclusion reached is that, despite recent transformations, jurisprudence in Brazilian procedural law, which adheres to the civil law tradition, remains a secondary source of law, capable of producing binding effects only within the strict limits authorized by law. This scenario has not changed with the jurisprudential standardization function attributed to higher courts nor with the entry into force of the current Code of Civil Procedure. Consequently, it is affirmed that, among the elements listed in Article 927 of the Code of Civil Procedure, the only one that binds an arbitrator in arbitration conducted under Brazilian law is the definitive merit decision rendered by the Supreme Federal Court in a concentrated control action, given the provision of Article 102, § 2º, of the Constitution, which grants such decisions erga omnes effect.