A assimilação da arbitragem no Brasil: disputas em torno da constituição de uma justiça extraestatal

Abstract

Arbitration is an alternative dispute resolution mechanism allowed by the Brazilian law. When both parties agree about it, they search for an specialized institution that will delegate the resolution of the conflict to one or more arbitrators. Passage of Brazil's 1996 Arbitration Act recognized the validity of decisions reached by arbitrators. The incorporation of arbitration in the country happens as part of an international movement to reform local justice systems adapting them to the growth of the commercial arbitration market. Brazil's law was inspired by various international instruments, including the UNCITRAL (United Nations Commission on International Trade Law) Model Law and can be considered part of a broader effort to homogenize law across countries. The main goal of this dissertation is, thus, to analyze the arbitration transplant to the Brazilian legal context. To do so, it first explores the emergence of the main institutions of international commercial arbitration and then it investigates its local assimilation. This process is analyzed through the mobilization that resulted in the approval of the law in 1996 and also through the exploration of the way by which arbitration operates today. The argument emphasizes the role of the gatekeepers in intermediating the local and the global. This work finishes with a reflection about the structural fitting of arbitration in the local judicial field.