The restrictive rules of the arbitral clause and the protection of the vulnerable contractor in Brazilian law

Abstract

This paper presents a study on the rules in Brazilian legislation restricting the legal possibility to include arbitration clauses in contracts signed by weaker parties, particularly consumers. It critically exposes the case-law and legal writings on the association between article 4, paragraph 2, of the Brazilian Arbitration Act and article 51, VI, of the Brazilian Consumer Protection Code, as well as the rigid interpretation of the forementioned rules that may result in overprotecting a non-vulnerable person or neglecting a weaker party. In order to avoid such pathological hermeneutical results, this paper presents systemic elements that surpasses the mere formal qualifications of the adhering party.