IURA NOVIT ARBITER: COMPATIBILIDADE E DESAFIOS DA APLICAÇÃO DO IURA NOVIT CURIA NA ARBITRAGEM CONFORME A ORDEM JURÍDICA BRASILEIRA

Abstract

The application of iura novit curia does not occur in the same way in state jurisdiction and in the arbitral jurisdiction. In regard of that, this study aimed to analyze, in domestic arbitrations governed by the Brazilian legal system, the compatibility of iura novit curia with arbitration, identifying as well the main challenges in its application. Analyzing basic notions about iura novit curia and the fundamental distinctions between the aforementioned jurisdictions, it was found that iura novit curia is applicable in arbitration through its adaptation to its specificities, which leads to the constitution of the term iura novit arbiter. Although compatible, iura novit arbiter faces other challenges, which are related to the hypothesis of nullity of the arbitration award. Among the pertinent hypotheses, those regarding violations of the limits of the arbitration agreement and concerning due process of law were studied, in order to verify in which practical situations the use of the aphorism poses risks to the effectiveness of the arbitration process.