By Juan Sande
The Arbitration Clause, which establishes an arbitration in order to solve conflicts, is frequently used in business contracts because it is a fast, efficient and more specialized mechanism, avoiding that eventual demands are submitted to the slowness of the Judiciary Branch.
According to what establishes article 1st of Law 9.307/96, the arbitration can be stipulated by anyone who is able to contract it in order to settle litigations regarding the available property rights.
The establishment of the arbitration commitment has the ability to impede the constitution of a procedural juridical relation, and also helps to cease the one that has already been established, with the infringement of the arbitration clause.
However, the Brazilian legislation anticipates restrictions to the applicability of this institute in relations which the contracting parties are more vulnerable. This is true especially for adhesion contracts, when there is no freedom to negotiate clauses and conditions, which are predetermined by one of the parties.
Having in mind the situation of inequality and hyposufficiency of the investor, the very Arbitration Law, in its article 4th, §2nd, restricts the efficiency of the arbitration clause in those kinds of contracts, specially in adhesion contracts.
In this sense, and according to the specialized doctrine, the validity of an arbitration clause anticipated in an adhesion contract depends on the initiative or acquiescence of the investor, who shall subscribe the clause highlighted in the document.
Regarding the consumer´s relations, the Consumer Defense Code, in its article 51, item VII, presents a special restriction, establishing the nullity of full right when it comes to the compulsory utilization of arbitration.
Yet, according to the jurisprudence set by the Superior Court of Justice, the efficiency of the arbitration clause in the consumerist scope depends either on the consumer´s initiative when it comes to the arbitration process or on its subsequent ratification at the moment of the concrete litigation.
Finally, the arbitration commitment is valid when the provider shows that they haven´t imposed the compulsory utilization of arbitration or due to the consumer´s vulnerability in the case itself. In case the arbitration starts without the consumer´s consent, it must be invalidated to enable the party to search for the Judiciary in order to solve the dispute.
Juan Sande, lawyer at Almeida Prado & Hoffmann Advogados Associados office.