A VINCULAÇÃO DO ÁRBITRO AOS PRECEDENTES JUDICIAIS E O CABIMENTO DA AÇÃO ANULATÓRIA DE SENTENÇA ARBITRAL

Abstract

The arbitration award is equivalent to the court decision, and is also included among the judicial executive titles, as provided for in article 515, item VII, of the Civil Procedure Code. Based on the system of binding precedents provided for in the 2015 Civil Procedure Code, the question arose as to whether arbitrators would be bound by judicial precedents and, if so, whether failure to comply with a judicial precedent in arbitration would give rise to an action to annul the arbitration award. This paper aims to analyze the arbitrator's connection with judicial precedents and analyzes the appropriateness of the action to annul an arbitration award, contemplated in article 32 of Law No. 9.307/1996, in the face of non-observance of a binding judicial precedent. Based on specialized articles, doctoral theses and doctrinal works, with a qualitative treatment of the information obtained, it is possible to highlight that the arbitrator is bound by judicial precedents to the extent that they are part of Brazilian Law itself, that is, the application of the Brazilian law is not limited to the legal text. In relation to the appropriateness of the annulment action, there are opposing arguments that admitting the use of the annulment action due to disrespect for precedent would allow for a wide possibility of attacking arbitration awards, providing the review of the arbitration award in the Judiciary without the appropriateness being foreseen. of the annulment action in any of the hypotheses listed in article 32 of Law No. 9.307/1996 and that in the Brazilian legal system, the arbitration sentence would not have entirely the same rules as the judicial sentence, since, in the case of a judicial sentence, there is the provision for rescission action due to a manifest violation of the legal norm (article 966, item V, of the Code of Civil Procedure), but if the arbitrator violated, in his sentence, a literal provision of law, there would be no provision for annulment action in accordance with Article 32 of Law No. 9.307/1996. However, it is necessary to remember that binding precedents ensure equality, legal certainty in judgments and absolute observance of due legal process, their disrespect could be characterized as a violation of public order, giving rise not only to the arbitrator's duty to comply with binding precedents, such as the appropriateness of the annulment action in case of the inobservation.