Ato concertado para apoio do juízo estatal ao juízo arbitral em matéria probatória

Abstract

Although arbitration is a part of the Brazilian justice system and operates independently from the Judiciary, it is undeniable that there is interaction between these systems—arbitration and state courts. This paper aims to set forth the minimum content of a primary coordinated agreement (“ato concertado primário”) between an arbitral institution and a state court in cases where (i) support is needed to enforce decisions or to ensure greater efficiency in the arbitration proceedings; (ii) there is a common issue of fact in both ongoing arbitral and judicial proceedings, in which case the state court may produce evidence with the participation of the arbitral tribunal. Our objective was to ensure that, based on this primary coordinated agreement, other secondary acts of cooperation may be entered into, dispensing with the use of the arbitral letter (“carta arbitral”), unless the parties to the arbitration negotiate otherwise. We have identified the following elements that should comprise the primary coordinated agreement: parties; subject matter; addressing the request for support; the form of request for support; regulations on budget estimates; indication of the arbitration agreement as the most appropriate instrument for entering into a procedural legal transaction to avoid the application of the rules of the primary coordinated agreement on arbitration; publicity of the primary coordinated agreement; regulation of the possibility of confidentiality in the performance of cooperative acts; indication of the documents required to submit such a request; regulation of the hearing of the parties in proceedings where secondary cooperation acts will be entered into; definition of jurisdiction over incidental evidentiary issues; and forms of challenge available to the parties in the arbitral proceedings in the event of noncompliance by the courts with the duty of cooperation.