Aspectos polêmicos da arbitragem: as tutelas de urgência no âmbito do procedimento arbitral
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Data
2012-06
Autores
Orientador(res)
Ayoub, Luiz Roberto
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Resumo
This work analyze the appropriateness of the emergency measures in the arbitration proceeding, including the possibility of its concession and implementation by the arbitrator - either previously or in the course of arbitration – based on the provisions of the Arbitration Law (Law No. 9.307/1996), as well as the national doctrine on the subject. Such analysis is relevant once the arbitration procedure has been widely used as an effective means to resolve disputes concerning available property rights. Despite being faster than a judicial proceeding, the arbitration is not always capable to protect the material right of the parties until the pronouncement of the final decision on the merits. In this regard, on the situations in which there is risk of irreparable damage to the part, the emergency measures are essential to ensure the right claimed, making possible the pronouncement of a just sentence and covered with practical utility. In this context, the arbitrator is endowed with judicial power to grant anticipatory and precautionary measures which are necessary to resolve the controversy, even if such power was not expressly defined in the arbitration agreement. However, in order to execute this measures, the arbitrator needs the assistance of the Judiciary (which monopolizes power of coercion), whenever the party against who the measure is ordered refuses to comply spontaneously with the arbitrator determination.