A competência-competência no novo Código de Processo Civil: decisão arbitral como pressuposto processual negativo

Abstract

ABSTRACT: This paper focuses at the competence-competence rule in Brazil, especially the consequences of the New Civil Procedure Code in the matter (Federal Law 13.105 of 16 March 2015). The New CPC adopts a multi-door Court-House Model and creates a system of Court-annexed ADR. As for arbitration, the New CPC chose not to make any substantial change in the Brazilian Arbitration Act. However, the article 485, VII, of the New CPC is substantially different from its predecessor, article 267, VII, of the CPC of 1973. The new article clarifies that the arbitrator has a temporal precedence to decide about his own jurisdiction and if the arbitrator decide that he has jurisdiction to hear a given case the judge should stay any court proceedings about the same subject. The judge can only decide, in a prima facie basis, about the arbitrator’s jurisdiction if the arbitrator has not done so yet. This change is important as it settles the current debate about the text of the article 8 of the Arbitration Act.