Ação anulatória da sentença arbitral: aspectos e limites

Abstract

The present paper analyses the action for nullity of domestic arbitral awards and its role as an important mechanism for granting balance between state court and arbitration procedures as so as to preserve fundamental rights of the parties. At first, the paper makes an analysis of the jurisdictional power of the arbitrators and the equivalence of the judicial award and arbitrator award. As consequence, arbitrator award shall be classified as a procedural act and attract the application of nullity theory. Further, the paper makes a study over the main aspects concerning the action for nullity of arbitration awards, underlining some of the most relevant issues on the causes of nullity disposed in the Act 9.307/96. Above the core topics studied, three of them are highlighted and deeply analyzed: the granting of fundamental rights of the parties in contrast with the flexibility of the arbitral procedure; public policy control; and the limits of the judge while deciding an action of nullity. To ensure better support for the research, the paper makes a comparative study over the arbitration award judicial control (comprising Portugal, France, England and United States). Finally, the highlighted issues are examined under Brazilian doctrine and jurisprudence, regarding the elements taken from the comparative study, in order to well analyze the relevant problems. The overriding objective of the paper is to demonstrate the importance of the action of nullity as an instrument of control of arbitration awards, by means of weighting the principles of the free will to contract and due process of law.