Existência e Validade da Cláusula Compromissória Não Escrita: Interpretação Extensiva do Artigo 4º, § 1º, da Lei de Arbitragem, à Luz do Direito Brasi

Abstract

The present essay confronts the limitations imposed by Brazilian Arbitration Law as to the existence of a written arbitration agreement in order for it to be valid. The proposed approach takes as starting point the factual phenoms that cause for the subjective or objective extension of the arbitration agreement, defying the limits of the law. It transits through comparative law (laws, International Conventions, soft law and doctrine), in comparison to Brazilian law, in order to define how the theme is handled by overseas rules, especially in view of the dynamicity of practices on international trade, as well as in light of the new technologies and new forms of contracting. It tries to define the nature of the demand for a written arbitration agreement as a matter of ad substantiam tantum or ad probationem tantum. Finally, on a new comparative approach, it aims to bring together the concepts of domestic good faith with the common law estoppel, as a source for the solution of conflicts generated in cases of non-written agreements. Recent decisions by the Superior Court of Justice (STJ) directly or indirectly related to the issue are present along the text and corroborate the conclusions reached.