O papel do juiz no fortalecimento da arbitragem: efeito negativo da competência-competência v. anti-suit injunctions

Abstract

Even though anti-suit injunctions are a mechanism originally developed in countries of common law tradition, they are also often issued by national courts of a civil law tradition. However, in addition to creating disorder among different legal systems, the legitimacy of such injunctions seems to be questionable both from an international law and arbitration law perspective. In fact, the most efficient manner to achieve the coordination between national courts and arbitral tribunals is through the application of the negative effect of the principle of compétence-compétence. Such principle avoids excessive state court intervention, as well as the parallel and conflicting control of the validity of the arbitration agreement, and is more respectful of the will of the parties.