Pathological Arbitration Clause and Franchise Contract: the Applicability of the Principle of Competence-Competence (Comments on the Decision REsp 1.602.076/SP)

Abstract

The principle of Competence-Competence empowers an arbitral tribunal the priority to decide its own jurisdiction in the disputes submitted to its arbitration. This article considers, however, a decision of the Brazilian Superior Court of Justice that interprets the Brazilian Arbitration Law and it has established jurisprudence in the sense that, in adhesion contracts (for example, the franchise contracts), the existence of a pathological arbitration clause allows the intervention of the Judiciary in the conflict, and this is a hypothesis of modulation of the rule of the primacy of the arbitral tribunal.