Competência-competência: a solução do conflito entre jurisdição estatal e jurisdição arbitral sob a perspectiva do modelo constitucional do processo

Abstract

The objective of this thesis is to discuss the most appropriate solution to the conflict between arbitration and the Judiciary, when discussing the non-existence, nullity or ineffectiveness of the arbitration clause, in light of the doctrine of jurisdiction and the constitutional model of the process. To define the thesis defended here, it will first be demonstrated that arbitration is an appropriate mechanism for resolving disputes and has a jurisdictional function. Next, it will be demonstrated that the Judiciary and arbitration must coexist in a healthy and balanced environment, even at the points of intersection between such jurisdictions. Afterwards, it is intended to demonstrate the need for an adequate and immediate mechanism for resolving the conflict between the state court and the arbitration court, avoiding that the jurisdiction suffers from a jurisdictional void in moments of crisis and urgency, whether by enduring high costs for a procedure you do not agree with, or participating in an illegitimate procedure. In summary, the proposed thesis is based on the following ideas: (a) arbitration is an appropriate mechanism for resolving disputes and deserves prestige and protection; (b) the Judiciary must not assess the merits of the arbitration procedure when jurisdictional power is attributed to the arbitrator; (c) the arbitrator is the master of his own jurisdiction, but the Judiciary is not a second-class body that must wait for a final ruling from the arbitration and only then act upon provocation, (d) relegate control of the jurisdiction of the arbitration to the Judiciary power only for the end of the arbitration procedure is ineffective, encourages bad faith and violates the constitutional model of the process