Ethics in arbitration and its challenges as well as reflections on its hybrid nature

Abstract

The Arbitration Law (Lei nº 9.307/96) is intended for the Brazilian legal system to regulate arbitration as a method of conflict resolution, alternative to the Judiciary. In short, the legal nature of arbitration is beyond debates and divergences in documents and jurisprudence. Although Law 9,307/96 does not expressly define the legal nature of arbitration, it presents characteristics that allow it to be classified as a hybrid institution, with elements of jurisdiction and contract. On the one hand, arbitration is subject to state jurisdiction, producing decisions by force of judicial ruling, binding the parties and their successors. Furthermore, the arbitral ruling can be executed directly, without the need for judicial approval. On the other hand, arbitration may have a strong contractual nature, as it originates from the parties, expressed in a contract (commitment clause or arbitration agreement). The parties have wide freedom to choose the arbitrators, the procedure and the law applicable to the case. Given these characteristics, arbitration can be understood as a form of private jurisdiction, exercised by arbitrators appointed by the parties, based on a contract. This hybrid nature of arbitration is what confers flexibility, efficiency and autonomy, making it an attractive alternative for conflict resolution.