Arbitragem e precedentes: contribuições possíveis a partir da crítica hermenêutica do direito

Abstract

Relevant aspect within the scope of arbitration, which involves the alternative exercise of jurisdiction, regarding the role of the State, is precisely its relationship with the public system of justice administration. Among the topics that fall within the scope of analyzing this relationship is the controversy concerning the arbitrator's adherence to judicial precedents, primarily due to certain reasonably established dogmatic paradigms regarding the arbitrator's role (e.g., non-subordination to the hierarchical structure of the Judiciary). Thus, the study was divided into three cores. First, an attempt was made to establish fundamental assumptions regarding the contingencies (historical and normative) that shape the understanding of the institution of arbitration in Brazil, especially concerning its central "paradigms," namely the perspective of an intensification in the search for suitable and alternative methods of dispute resolution, as well as the notion that arbitration has as one of its fundamental principles the autonomy of private will - paradigms that, together, contribute to the consolidation of characterizing arbitration as a sort of separate procedural "subsystem," to a large extent detached from the statutory elements of the legal system connected to the State. In the second stage of reflection, attention was turned to the contrast between the two major Western legal traditions (civil law and common law), in order to clarify the predominantly adopted position by the national legal community regarding the legal nature of judicial precedents, especially their position within the structure of legal sources of law. Finally, in the third stage, an extensive overview of the debates within the doctrine of arbitration was attempted regarding the (dis)connection between the arbitrator and the precedents issued by the State Courts. Moreover, an effort was made to position the assumptions adopted by the Hermeneutical Critique of Law (HCL) - a theoretical framework developed by Lenio Streck - within this debate, presenting a comprehensive proposal of the meaning of the binding nature of the judicial agent to past political decisions - regardless of the form in which they are expressed, but with a special focus on binding precedents - according to the paradigm of the Rule of Law and the rejection that it opposes to the perspective that the source of legal authority (and consequently, of judicial precedents) rests on a formal hierarchy criterion among actors endowed with jurisdictional powers. Finally, the possibility of challenging an arbitral award that fails to comply with a binding precedent expressly raised by one of the parties to the arbitral proceedings was discussed in more depth, followed by a possible dialogue between the assumptions of HCL and the thesis of "conscious disregard of a binding precedent" advocated by Guilherme Rizzo Amaral.