O princípio Kompetenz-Kompetenz e o Tribunal Arbitral: à luz da Jurisprudência do Superior Tribunal de Justiça

Abstract

Arbitration is one of the oldest forms of conflict resolution, however, for a long time, it faced distrust and unknowledge from the Brazil’s legal operators, this scenario took a big step towards its alteration with the enactment of Lei no 9.307 of 1996, which regulated the institute in Brazil, bringing with it rules and principles that must be respected by our legal system. One of these principles is the Kompetenz-Kompetenz, which determines that the Arbitration Court is the judge of his own competence, having primary legitimacy to decide on issues related to the existence, validity and effectiveness of the arbitration agreement and the contract to which it refers. It imposes that, once the parties have contracted the arbitration method for the solution of conflicts, the arbitration must be instituted and continue until its end, provided the due

judicial control after the arbitral award. Over time, the prestige of the Kompetenz- Kompetenz became so peaceful that the Brazilian Superior Court of Justice (STJ)

established its use as a rule in Edition No. 122 of “Jurisprudence in thesis”, otherwise, STJ also established the hypotheses of relativizing the principle, in which the Judiciary could decide on the existence, validity and effectiveness of the arbitration agreement without the Arbitration Court expressing itself. Thus, we’ll present the Arbitration’s and Kompetenz-Kompetenz’s concepts and elements through doctrinal knowledge about it, then analyze the decisions of the Superior Court of Justice in order to understand what are the hypotheses to use the Kompetenz-Kompetenz as a rule and what circumstances its relativization is possible, besides analyzing whether such relativization can harm the institute in Brazil, giving power to the anti suit injuctions, judicial measures that aim to interrupting the regular progress of the arbitration procedure or making impossible its beggining.