The Arbitration Act was enacted more than two decades ago and had its constitutionality declared incidentally by the Supreme Court (STF) in the context of an appeal arinsing from a proceeding of ratification of a foreign court decision (Case No 5,206, judged in 2001). The analysis of constitutionality permeated the constitutional guarantee of non-obviation of judicial jurisdiction. The conclusion was that the Federal Constitution precludes the citizen from being prevented from opting for judicial courts, but leaves him free to settle disputes by other mechanisms.
Despite any discussion as to the constitutionality of the Arbitration Act is already fully overcome, the Court of Appeals of the State of Rio de Janeiro, at the end of 2020, decided to review the issue of non-obviation of judicial jurisdiction to deny the enforceability of an arbitration clause due to the supervenience of a decree of bankruptcy of one of the contracting parties.
Generally speaking, the precedente of the of the Court of Appeals of Rio de Janeiro settles a discussion over a contractual review lawsuit with a request for damages filed jointly by Stiebler Arquitetura e Incorporações Ltda. and two specific purpose societies. Whereas the agreement contained an arbitration agreement, the defendants raised such that as a a preliminary challenge to the lawsuit. The judge granted the request and dismissed the lawsuit.
However, after Stiebler's bankruptcy decree, the judicial trustee requested that the court of the bankruptcy should be consider the only court to rule on issues involving the bankrupt company. Stiebler, for its part, also argued in its appeal that a company under a bankruptcy regime,which means subject to Law No. 11,101/05, Brazilian Reorganization and Bankruptcy Act, cannot be a party in arbitration proceedings and reiterated its argument of non-obviation of judicial jurisdiction.
In addition to analyzing other issues that fall beyond the scope of this article, the Court of Appeals of the State of Rio de Janeiro, more specifically the 3rd Civil Chamber of Rio de Janeiro Court of Appeals, considered that the arbitration clause cannot have unrestricted application and its analysis should take into account the high costs that will be borne by the insolvency estate and by the creditors.
Thus, considering that the insolvency estate could not bear to pay for the costs of an arbitration proceeding, the court held that access to justice should be protected and authorized the permanence of the dispute within the judicial court. The decision has not yet become final and may be the subject of successive appeals until it is decided definitively by the higher courts. However, it represents a step backwards to the whole case-law already well- established on the issue.
In fact, the Superior Court of Justice itself has already made strategic decisions regarding the use of arbitration in the country, also regarding the arbitrability of disputes involving companies in crisis. An example is a decision rendered by Minister Nancy Andrighi in 2008, under Precautionary Measure No. 14,295/SP, which decided on a matter of arbitrability involving a company in out-of- inarbitrabilidade court liquidation. In this case, which involved ABC Health Services Hospital and Interclinical Health Plan S.A., the minister rapporteur considered that the arbitration clause remains valid, as it was concluded before the decree of liquidation.
Another example, in the case Targa vs. Cremer, also judged by the Court of Appeals of the State of Rio de Janeiro in July 2014, lawsuit registered under no. 0016509-16.2014.8.19.0000, Targa turned to the judicial court to request the suspension of an arbitration proceedings invoking that the issues under discussion involved a matter not subject to arbitration that are left exclusively to the jurisdiction of judicial courts considering the reorganization regim The court ruled that, as matters are eminently contractual, there are no ground to talk about lack of arbitral jurisdiction.
Such cases are not isolated and are in line with legislative developments on the subject. The judgment itself discussed mentions the content of the statement 75 of the II Commercial Law Seminar of the Council of Federal Justice (CJF), held in 2015: "if there is arbitration agreement, if one of the parties has been declared bankrupt: (...) the judicial trustee cannot refuse the effectiveness of the arbitration clause, given its autonomy in relation to the contract."
So much so that this was the prevailing understanding that, over the course of the reform of the Brazilian Judicial Reoganization and Bankruptcy Act, with the enactment of Law No. 14,112/20, the writing was partially incorporated into the law writing, so that it is expressly provided for in the Brazilian Judicial Reoganization and Bankruptcy Act that "the processing of judicial reorganization or the decree of bankruptcy does not authorize the judicial trustee to refuse the enforcement of the arbitration agreement, not preventing or suspending the beginning of the arbitration proceedings" (art. 6, § 9).
Thus, what is verified is that the recent judgment of the 3rd Chamber of the Court of Appeals of Rio de Janeiro disconsiders all recent case-law developments and even legislative changes to reject the enforceability of the arbitration clause.
It is not ignored that there are still problems of compatibilization between arbitration and insolvency institutes, however, provided that the legal jurisdiction is respected, the state and arbitral jurisdictions can and must live harmoniously.
Thus, if the precedent of the 3rd Chamber of the TJRJ is not reviewed – apparently remote hypothesis –, such interpretation will bring legal uncertainty to the arbitration agreements and will imply a real setback in relation to the institute.