Last 06 November 06, the Fourth Chamber of the Superior Court of Justice, in the judgement of the special appeal n° 1,733,685/SP, brought by Volkswagen Brazil's Automotive Industry Ltda. against Matalzul Industry and Commerce Ltda., understood that, even if there is an arbitration agreement between the parties, the bankruptcy filing based on default of credit title (in this case, duplicates under protest) does not need previous establishment of arbitration court.
This is because, as discussed in the report of the Minister Raul Aguilar, in spite of the binding force of an arbitration clause, which requires the parties to respect the Covenant concluded, such a provision would not be absolute and the default discussed in the process gave rise to the petition for bankruptcy (11,101/2005), which in turn has executive and expropriatory nature, escaping the duties of the arbitrator, who has no powers to impose restrictions on the assets of the debtor, being necessary the provocation of the Judiciary to satisfy the pretension.
In adiction, the Fourth Chamber understands that the intend to predict and install the arbitration procedure would be for the resolution of conflicts of interest arising from the contract concluded between the parties in order to reach the understanding of which of the parties have the right posted in discussion, which wouldn't be the case in process analysis, since the bankruptcy filing occurred on the grounds of duplicates that are enforceable instruments. There is no talking in arbitration proceedings when the title already guarantees certain of the debt of one part to another, according to the Court.
The position of the Superior Court of Justice, therefore, is that the enforceability of a credit title cannot be affected by the arbitration agreement stipulated by the parties, under penalty of reducing the effectiveness of the title to nothing, which is why the bankruptcy required by the defendant in the face of the applicant does not violate the arbitration clause stipulated in contract, since the arbitrator does not have executive powers.