Arbitragem e precedentes: vinculação ou persuasão?

Abstract

The dissertation investigates the relationship between arbitration and judicial precedents in Brazilian law, based on the central question of whether (and to what extent) arbitrators must observe qualified precedents – especially those associated with Article 927 of the Code of Civil Procedure (CPC) – and what consequences arise from their non-observance in judicial review of arbitral awards. Thus, the issue lies between the increasing normativity of precedents under the 2015 Code of Civil Procedure and the consolidation of arbitration as a definitive and specialized method of dispute resolution, without merits review by the Judiciary. The study adopts a dogmatic-legal methodology with a qualitative approach, combining (i) normative analysis (the Constitution, the Arbitration Act, and the CPC), (ii) a critical literature review, and (iii) systematic analysis of case law at the points of contact between precedents and arbitration. The research is structured into three chapters: (1) the theory and dynamics of precedents; (2) the foundations and types of arbitration, the arbitration agreement, procedural guarantees, and judicial control; and (3) the core of the problem: the applicability of the CPC to arbitral proceedings, the meaning of “apply Brazilian law,” party autonomy, any potential duty of the arbitrator, the temporal framework, and the consequences of any failure to observe precedents. The dissertation concludes that, in the CPC framework, the authority of precedents is expressed primarily as a duty of methodological observance and justified coherence, rather than as automatic decision-making. As to judicial review, it argues that an action to set aside an arbitral award should, as a rule, succeed only when the failure to observe precedents amounts to the application of non-existent law, law declared unconstitutional by the Federal Supreme Court (STF), or an absolute lack of reasoning (a complete omission in addressing the relevant legal issue, or merely apparent, tautological reasoning), with merits review (error in judicando) by the Judiciary being prohibited.