Brazilian Superior Court Research Articles

Contumácia e Revelia na Arbitragem

ABSTRACT: This article presents the main aspects of contumacy and default and its influence in the course of arbitration proceedings in comparison with their effects on judicial civil procedures in Brazil. Rules of some Brazilian arbitration chambers and two precedents of the Brazilian Superior Court on the subject are object of comments and analysis as well.

Conflito de Competência em Matéria de Arbitragem

ABSTRACT: This paper addresses the conflict of jurisdiction in arbitration from the perspective of Brazilian law. This subject is important due to its close relationship with fundamental principles of the arbitration system, such as competence-competence, and it became the issue of intense discussions after recent decisions by the Brazilian Superior Court of Justice. More specifically, this paper approaches the positive and negative aspects of the conflict of jurisdiction between (i) arbitrators; (ii) arbitral institutions, focusing on the analysis of the precedent CC STJ 113.260/SP; and (iii) arbitrators and judges; excluding from its scope discussions about consolidations, international lispendens and related topics. It discusses the model of competence-competence adopted by Brazil and other characteristics of arbitration to understand the pathology of the positive conflicts of jurisdiction. Taking into account features of civil procedure, as principles that outline the rules of conflict of jurisdiction between judges (neutrality and hierarchy), and of the arbitration system, as the autonomy of arbitration and the arbitrator's position in relation to the organizational chart of the Judiciary Branch, this paper concludes that the contribution of the state court in the resolution of conflicts of jurisdiction involving arbitral proceedings is inadequate. It ponders on some solutions to the proposed problems, accepting the use of the action of article 7 of the Brazilian Arbitration Law for cases in which there was no positive acceptance of jurisdiction by the arbitrators. Ultimately, it states the inconvenience of opening state courts to discussions about the jurisdiction of arbitrators during arbitral proceedings.

Crédito Tributário: garantias, privilégios e preferências

This paper will be a normative approach of the institute tax liability, especially as regard its enforcement, privileges and preferences. This analysis Will be visitede precepts contained in the Brazilian Tax Code (Law n. 5,172, of 10.25.1966), and enjoyed some judgments of the Brazilian Superior Court and the Brazilian Supreme Court. This paper analyzes regulatory institutes relevant to a proper understanding of the tax, as the tax liability, the taxable event, the tax assessment. In the construtcion of this paper, in addition of the legal provisions, raised up the teaching of the doctrine Brazilian tax as well as fanned about socially harmful aspects of the traditional habito f not complyng with the laws, wheter or not tax, which grow up on Brazilian soil.

Crédito Tributário: garantias, privilégios e preferências

This paper will be a normative approach of the institute tax liability, especially as regard its enforcement, privileges and preferences. This analysis Will be visitede precepts contained in the Brazilian Tax Code (Law n. 5,172, of 10.25.1966), and enjoyed some judgments of the Brazilian Superior Court and the Brazilian Supreme Court. This paper analyzes regulatory institutes relevant to a proper understanding of the tax, as the tax liability, the taxable event, the tax assessment. In the construtcion of this paper, in addition of the legal provisions, raised up the teaching of the doctrine Brazilian tax as well as fanned about socially harmful aspects of the traditional habito f not complyng with the laws, wheter or not tax, which grow up on Brazilian soil.

Provisional Measures, Permanent Changes: The Arbitration-Friendliness of the Brazilian Superior Court of Justice

This case comment focuses on a recent court decision by the Brazilian Superior Court of Justice which is of significant interest in the context of the development of arbitration in Brazil. The decision affirms the jurisdiction of Brazilian courts to grant provisional measures before the constitution of the arbitral tribunal, subject to the latter's ratification, while denying jurisdiction for the same purpose where the arbitral tribunal has been constituted. While not completely in line with current international standards, the decision positively supports the jurisdiction of the arbitral tribunal to issue provisional measures in light of an all-but-clear provision of Brazilian law.

Children and teenagers working in artistic labor: Brazilian situation and international examples

This descriptive study about children and adolescents artistic labor verifies the applicable legislation, in Brazil, regarding the participation of children and adolescents in the entertainment industry and in advertising campaigns, as well as the judicial processes about the theme known by the Brazilian Superior Court of Justice up to October, 2010. The results permit to conclude that, due to the lack of specific regulation and general rule of child labor prohibition, the restrictions that tend to protect the health and security of children and adolescents that act in the artistic niche (television, advertising, fashion, movies etc.) have been, in Brazil, at subjective criteria of the judges and, in many cases, in the hands of producers themselves. Brief considerations on how other countries regulate the theme are also presented (the USA, Portugal and Argentina).

RESPONSABILIDADE CIVIL MÉDICA: BREVES CONSIDERAÇÕES EM FACE DA RECENTE JURISPRUDÊNCIA DO SUPERIOR TRIBUNAL DE JUSTIÇA

The civil liability for medical malpractice is a frequently debated subject in the legal doctrine and legal decisions. One of the most controversial points is the conciliation of the medical obligation’s nature - usually defined as an obligation of ways, and not of results - with the objective liability that is founded in the Brazilian Consumers Code (CDC). In general terms, it is recognizable that hospitals, clinics or similar institutions are ruled by the CDC, but this same legal statute excepts the objective liability of the liberal professional, such as the doctors. The reason for that is due to the fact that the patient’s cure is a fact that cannot be demanded from the physician, since its occurrence depends on factors that are not directly or totally related to the medical service. This legal exception affects only the liberal professional, which means that, in a first look, it cannot be extended to the legal person that has as object the hospital-medical care. On the other hand, if the objective liability is enforced in all cases, considering that the hospital is, in fact, a supplier of services, the medical obligation would be transformed into a real result obligation, since the hospital would be responsible in almost all the cases in which the cure of the patient does not take place. The following text, taking as paradigm the recent decisions of the Brazilian Superior Court of Justice (STJ), tries to trace some parameters of conciliation of these rules, analyzing the decisions in parallel with the legal doctrine.

Arbitration Clause and Acceptance: The Role of Silence and Fair Dealing in L'Aiglon S.A V. Têxtil União S.A. - A Brazilian Experience

The acceptance of an arbitration clause usually occurs with the express agreement of both parties involved. Nevertheless, in certain cases, the silence of one party can be interpreted as consent thereof. This line of thought was adopted by the Brazilian Superior Court of Justice in pronouncing its first homologation of a foreign judgment, emphasizing the importance of preserving the principle of good faith and the principle of fair dealing, which, in conjunction, guide the parties towards the achievement of what was previously agreed upon. The article therefore calls attention to the remarkable decision of the Brazilian Superior Court of Justice, which showed a pro-arbitration approach by reinforcing the role of silence and fair dealing in arbitration proceedings.