Almost two decades after the enactment of the Arbitration Law (9.307/96) arises the Bill of Law No. 7.108/14, an initiative of the Senate (PLS No. 406/2013) to amend certain provisions of this Arbitration Law and include others in order to bring the legislation to the everyday decisions that were already being rendered in the Brazilian judiciary.
The Bill sent to the House of Representatives earlier this year emerged from the initiative of a group of jurists led by the Minister of Higher Court, Luis Felipe Salomão, which after expeditious conduct, is already on the way to the Senate for further analysis after approval of the amendment to the project made by the House of Representatives Special Committee.
As mentioned, the project came to meet a growing demand for regulation of many situations not provided in the Arbitration Law or which solution was the competence of the judiciary, being a form of subjecting to the law the decisions already consolidated about the subject not bringing many new issues, as states Carlos Alberto Carmona. Thus, issues such as arbitration in the public sector, choice of arbitrators, status of limitation, emergency protective guardianship, arbitration letter, arbitration decision and arbitration in corporate disputes were subject to modifications or addition to the Arbitration Law by this Bill of Law.
Analyzing the suggested changes, it is verified that the legislator was careful to provide an expansion of the arbitration use setting conditions for the procedure in consumer and labor relations when the arbitration clause will be only effective if its implementation is by initiative of the employee or the consumer and, in case of consumer adhesion contracts, such provision shall be written in bold and in a separate document. In both situations, there is a concern in the protection of a contractual weaker party that will only adopt the procedure, if it has the knowledge and effectively wants any dispute to be resolved by arbitration.
In regard to the precautionary and emergency guardianships, previously competence of the Courts, according to the Bill of Law, except when the arbitration is not already established, such measures shall be taken by the Arbitration Court which shall also have the right to modify decisions previously rendered by the judiciary, which demonstrates not only a greater power to the arbitrators but also higher independence to arbitration.
Besides creating the arbitration letter, a sort of claim to a certain Court in order it acts or determines the compliance of an act requested by the arbitrator, the Project also innovates by changing the power of homologation of foreign arbitration decisions, which used to be of the Supreme Federal Court and know belongs to the Superior Court which is also responsible for the homologation of decisions handed by foreign Courts.
Another proposed change to the project which promises plenty of impact refers to the express provision of arbitration in contracts with the Government. That is because the Arbitration Law originally did not envisage the possibility of electing arbitration in contracts with the Government, leaving to Court decisions, through joint interpretation of the Concessions Law (Law No. 8.987/95) with article 1 of the Arbitration Law the conclusion about the possibility in case of concession contracts in the public sector involving property rights.
In this aspect, the project came over more in the means of incorporating the legislation to a practice already authorized by the courts than to innovate the use of the arbitration procedure, except regarding the scope of arbitration which now covers the entire public sector and not only concession contracts, as expressed in article 1 of the Bill of Law which refers to arbitration for both the direct and indirect administration.
However, the exact conditions under which the arbitration will work in the public sector is still subjected to regulation, as written in the amendment to the Bill of Law approved on 15th of July of this year, which may postpone for some more time the full standardization and implementation of the new rules.
Therefore, the changes and discrete innovations presented by the Bill of Law demonstrates a real concern in our country to facilitate and invest in the use of an institute that is already well established in our legislation and widely used in the legal environment as an alternative for resolving disputes more quickly and specialized, and whose Chambers and arbitrators have already reached international level of organization, seriousness and recognition.
Ana Lucia Villela was an associate at Pacheco Neto Sanden Teisseire Law Firm.