Arbitration has consolidated itself as an important method of dispute resolution and continues to generate relevant debates, including the possibility of using actions for the taking of evidence in advance in non-urgent cases involving arbitration clauses.
The discussion has gained prominence following the innovations introduced by Article 381, items II and III, of the Brazilian Code of Civil Procedure, which expanded the hypotheses for taking evidence in advance, including as a tool to facilitate settlements or to allow prior knowledge of the facts before filing a claim. In this context, questions arise as to whether such mechanisms apply to disputes subject to arbitration.
The matter was addressed by the Superior Court of Justice (STJ) in Special Appeal No. 2,023,615/SP, which examined the possibility of filing an action for the taking of evidence in advance before the Judiciary, without urgency, despite the existence of an arbitration clause. The STJ reaffirmed that arbitration satisfies the fundamental right of access to justice and that urgency constitutes the only legal exception to the arbitrators’ jurisdiction.
The decision reinforces the autonomy and independence of arbitration in relation to the Judiciary, rejecting the indiscriminate application of procedural rules to arbitral proceedings. At the same time, it highlights the need for adaptation by parties and arbitral institutions, whether through more detailed arbitration clauses or by establishing specific rules to govern the taking of evidence in advance prior to the commencement of arbitral proceedings.
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