Binding precedents in arbitration

changes promoted by the 2015 Brazilian Civil Procedure Code and its interpretation in acc ordance with the Brazilian Constitution and the Brazilian Arbitration Law

Abstract

This paper aims to shed light on precedents in arbitration, a  Debate that has been increased after the promulgation of the Brazilian Civil Procedure Code in 2015, which aims to standardize judicial precedents. In the first part, the paper points out some of the changes brought by the Code in order to increase legal certainty, such as the strengthening of judicial precedents. In the second part, the paper questions whether precedents are applicable to arbitration, initially indicating a merely structural answer. In the third part, the paper presents another answer based on the “civil-constitucional” interpretation, a school that advocates interpretation of the legal order as a unity, despite the complexity of its many laws, and centralized in the  constitution. In the fourth and last part, considering the
binding precedents in arbitration with respect to fundamental rights and guarantees set forth in  the Constitution, the compatibility of the arbitration awards with the legal order is defined. Finally, the paper concludes that even though the autonomy of parties is recognized and respected (whenever it is possible to establish arbitration as a means for resolving disputes), such autonomy cannot be interpreted exempt from the fundamental rights contained in the Constitution. Arbitration is not an independent microsystem in the legal order and even though the arbitral award is not subject to review, it does not mean the arbitrators may automatically decide at their own desire. In fact, principles of arbitration,
though different from judicial procedures principles, have some similarities to these.