A aplicabilidade do instituto da arbitragem aos dissídios individuais de trabalho

Abstract

This work analyzes the compatibility of the Arbitration Law and the individual labor disputes inside the Brazilian Law. The difficulty of the absolute restriction of the Arbitration Law to the disposable patrimonial rights and the alleged non-disposability of the labor rights could be solved via the identification of an element that is introduced in this work; called “condition of disposability” of labor rights. This element is founded upon the very starting point of Labor Law as well as within its subdivision into Individual and Collective Law. It is also found in the possibility of transaction of such rights in collective disputes as well as in most trials. This work proposes a solution of relative harmony and equilibrium of the applicability of arbitration to individual disputes, regarding the element that conditions the disposability of labor rights and allows for the application of the arbitration procedure under certain circumstances when this element is present. The “condition of disposability” is an element inside Labor Law that guarantee the expression of a laborer’s free will, without which he or she could not sign any commitment with his employee, including the arbitration commitment clause. This work also studies the role of arbitration throughout history, regarding its linkage with a particular view of Law and of how it develops and regarding the cause of its renewal in post-modernity. This work also analyses a double comparative advantage of the presence of arbitration in law systems and studies how it could cast direct and indirect betterments for claimants.