Tutela provisória no processo arbitral: limites estruturais, cooperação judicial e o papel do árbitro de emergência

Abstract

This monograph investigates the provisional measures in Brazilian arbitration proceedings, focusing on the structural limitations arising from the arbitral tribunal’s lack of coercive power, the dynamics of cooperation with state courts, and the institutional role of the emergency arbitrator as a procedural mechanism to address existing gaps. The research begins with an overview of arbitration under Brazilian law, examining its main structural characteristics. It also explores the jurisdictional nature of arbitration, highlighting the adoption of the public law theory, which recognizes arbitration as a true exercise of jurisdiction. The second chapter focuses on the structure of provisional relief within Brazilian civil procedure, addressing its concept and purpose, the distinction between precautionary and anticipatory measures, the requirements for granting such relief – including likelihood of success on the merits, risk of harm, and reversibility – the relevance of procedural safeguards, and the scope of the general powers of precaution and coercion vested in state judges. The third chapter concentrates specifically on the application of provisional measures in arbitration proceedings. It traces the historical evolution of arbitral competence to grant urgent relief, examines the theoretical and normative foundations for such measures in arbitration, and highlights the subsidiary application of the Brazilian Code of Civil Procedure, as well as the compatibility of provisional relief with the core principles of arbitration. Furthermore, the study analyzes the jurisdictional allocation between arbitral tribunals and state courts, addressing the scenarios in which provisional measures may be granted before the constitution of the arbitral tribunal – either by state courts or by an emergency arbitrator – and the exceptional circumstances that may justify judicial intervention even after the arbitral tribunal has been established. Additionally, the research offers an in-depth examination of the emergency arbitrator, analyzing its legal foundations, institutional regulation, and legitimacy under Brazilian law. The study also addresses the enforceability of arbitral provisional measures, focusing on sanctions imposed by arbitral tribunals and the use of the arbitral letter – “carta arbitral” – as a formal instrument for interjurisdictional cooperation. Finally, the work presents a critical analysis of the main normative gaps currently existing, proposing legislative and institutional reforms to enhance the effectiveness of provisional measures in Brazilian arbitration. From a methodological standpoint, the research adopts a qualitative approach and applies the deductive method, grounded in an extensive review of legal literature, analysis of Brazilian legislation, examination of case law from the Superior Court of Justice and from State Courts, and study of the procedural rules of various arbitral institutions. The investigation seeks to integrate theoretical insights with practical considerations, providing a systematic, current, and critical understanding of the topic.