Commentary on Conflict of Jurisdiction No. 197.434/SP: recognition of the jurisdiction of a third court, which was not involved in the conflict
Commentary on Conflict of Jurisdiction No. 197.434/SP: recognition of the jurisdiction of a third court, which was not involved in the conflict
Davi Ferreira Avelino Santana[1]
- Background of the judgment on the Conflict of Jurisdiction
This article aims to analyze the decision handed down by the Brazilian Superior Court of Justice (“STJ”) in the Conflict of Jurisdiction No. 197.434/SP, the core of which was to delimit, in the context of a conflict between jurisdictional orders, the competent authority to hear claim for early production of evidence formalized in a contract with an arbitration agreement. Given the initial impasse between two state courts, it was concluded that the arbitration court had exclusive jurisdiction to examine the case.
In broad terms, the controversy arose from a request for early production of evidence concerning the M&A that ultimately led to the sale of Kabum Comércio Eletrônico S.A. to Magazine Luiza S.A., a request that lacked the urgency criteria. The Civil Court found itself without jurisdiction, asserting that the matter entailed an employment link, established with the integration of the authors into the acquirer’s staff, and thus referred the case to the Labor Court, which, in turn, deemed itself equally incompetent by concluding that the controversy was civil in nature and linked to the sale of shares.
2. Reflections on the recognition of a third court’s jurisdiction
Pursuant to the sole paragraph of Article 66 of the Brazilian Code of Civil Procedure (“CPC”), “[the] judge who does not accept the jurisdiction declined by another must raise the issue of conflict of jurisdiction”[2], which is precisely what the Labor Court did, initiating a negative conflict of jurisdiction which, as provided for in section II of the aforementioned article, occurs when “two (2) or more judges reject jurisdiction, conferring jurisdiction upon each other”[3] to assess the matter.
Once the rejections of jurisdiction have been raised, as an effect of the judgment the “decision on the conflict of jurisdiction must declare the competent court and determine the referral of the case to it so that the procedure can take place. Nothing prevents the court from deciding on the jurisdiction of a third court, different from the conflicting courts”[4]. Rosa Maria de Andrade Nery and Nelson Nery Jr. corroborate this perspective by stating that “it is possible that the court decides that a third court, distinct from the conflicting ones, is competent”[5].
Considering that the object of the decision-making act is the undoing of the conflict-situation, all the elements available to decide it must be considered. And considering “that the conflict-remedy is the incident drawn up by legislation to declare, definitively, the competent court to process and judge the case (or cases) in a situation of conflict, the possibility of the court declaring the competence of a body other than the conflicted parties is not excluded”[6].
The duty of the STJ, when ruling upon a conflict of jurisdiction, as outlined in article 957, caput, of the CPC[7], is to declare which court is competent. The key interpretation is that such duty is perfected through the indication of which court has jurisdiction.
Due to the literality of the provision, the choice is not limited only between the two original courts, giving the STJ freedom to appoint the court that effectively has the jurisdiction to rule upon the controversy. Therefore, there is no legal prohibition on the declaration of a third court, even if it has not figured as a party to the original conflict.
Thus, the choice of a third court does not imply an innovation, but rather a teleological interpretation that seeks to rationalize the jurisdictional provision in order to “resolve every conflict brought to court”[8], since “in modern law it is not allowed for the judge to turn a blind eye and pronounce the non liquet in the face of an uncomfortable or complex cause”[9]. What could not exist would be the declaration of a semi-competence just to allow the impasse to be maintained between the courts involved in the conflict.
Although a novelty in the context of conflicts of jurisdiction involving arbitration, this ruling is not an unprecedented to the STJ, which had already declared the jurisdiction of third courts in state conflicts[10]. To this end, the “recognition of the jurisdiction of a Court that is not related to the conflict raised is perfectly possible in the absence of a legal prohibition, being a procedure adopted by this Superior Court on many occasions, thus ensuring speed in the processing of the process”[11]. The real innovation lies in the extension of this possibility to arbitration.
The primary reason for declaring a third court, not a participant in the initial conflict, competent, arises “due to procedural economy and respect for the parties that demand a prompt solution to the issue”[12]. The need for a solution means that the “state, judicial body, which decides the conflict, has to examine, not which of the two judges is competent, but which judge is competent, and the inquisitive principle comes into play, instead of the dispositive principle”[13]. In other words, the STJ is not restricted to the allegations of the parties (dispositive principle), that the conflict is between two courts, and it can act ex officio to seek a solution outside the understandings (inquisitive principle), which is the third court.
The underlying logic is linked to the recognition of the autonomy of the will of the parties who, when signing an arbitration agreement, choose to submit all disputes related to the contract to arbitration, removing the state jurisdiction. Therefore, when the STJ states that the arbitral jurisdiction prevails, even if it was not the object of the initial conflict, it is corroborating the thesis that the central core of the debate does not reside in the form, but in the substance of the agreement signed.
- Final considerations
When parties resort to arbitration as a method dispute resolution, the judicial analysis for the production of evidence without urgency would breach the jurisdictional and self-sufficient character of arbitration[14], since “there is no legal provision for allowing the early production of evidence before the Judiciary if there is no risk of damage”[15]–[16]. Thus, there is no need to consider a conflict of jurisdiction between state courts for this production. Both were already incompetent at the beginning, when the true judgment was foreign to the dispute.
Due to the principle of autonomy of will, the judgment of the Conflict of Jurisdiction strengths the pro-arbitration stand of the STJ. It is reaffirmed, therefore, that the procedural logic of arbitration must prevail when expressly agreed upon by the parties.
[1] LL.B at the Catholic University of Salvador with spent periods as international student at the University of Porto and at the Pontifical Lateran University of Rome. Student Member of the Chartered Institute of Arbitrators and member of the Young International Council for Commercial Arbitration. Academic director of the CJA-CBMA and ambassador of the ABEArb.
[2] DIDIER JÚNIOR, Fredie; ALVIM, Thereza Arruda (Coordinators). CPC Brasileiro traduzido para a Língua Inglesa. Translator: Alexandra Barros. Salvador: Juspodivm, 2017, page 47.
[3] Ibidem, page 46.
[4] MARINONI, Luiz Guilherme; ARENHART, Sérgio Cruz; MITIDIERO, Daniel. Código de Processo Civil Comentado. 10th edition. São Paulo: Thomson Reuters Brasil, 2024, page 1121, author’s translation.
[5] NERY, Rosa Maria de Andrade; NERY JÚNIOR, Nelson. Código de Processo Civil Comentado. 20th edition. São Paulo: Thomson Reuters Brasil, 2022, page 1910, author’s translation.
[6] ALBUQUERQUE, Raul Cézar de. Do Conflito de Competência. Revista de Processo, São Paulo, Thomson Reuters Brasil, volume 354, pages 57-91, August 2024, author’s translation.
[7] “Art. 957. When deciding the conflict, the court of appeals shall declare which court has jurisdiction, also determining the validity of the acts of the court that lacks jurisdiction” (DIDIER JÚNIOR; ALVIM, op. cit., page 381).
[8] DINAMARCO, Cândido Rangel; GRINOVER, Ada Pellegrini; CINTRA, Antonio Carlos. Teoria Geral do Processo. 31th edition. São Paulo: Malheiros, 2015, page 18, author’s translation.
[9] Ibidem, page 248.
[10] BRAZILIAN SUPERIOR COURT OF JUSTICE. Conflict of Jurisdiction No. 89.387/MT, Rapporteur: Justice Sidnei Beneti, Second Section, Judged on 9 April 2008, Published on 18 April 2008; Idem. Conflict of Jurisdiction No. 80.266/PR, Rapporteur: Justice Nancy Andrighi, Second Section, Judged on 24 October 2007, Published on 12 February 2008.
[11] Idem. Conflict of Jurisdiction No. 120.556/CE, Rapporteur: Justice Luis Felipe Salomão, Second Section, Judged on 9 October 2013, Published on 17 October 2013, author’s translation.
[12] NERY; NERY JÚNIOR, op. cit., page 269.
[13] PONTES DE MIRANDA, Francisco Cavalcanti. Comentários ao Código de Processo Civil: arts. 46 a 153. 3rd edition. Rio de Janeiro: Forense, 1997, page 341, author’s translation.
[14] According to article 22-B of the Brazilian Arbitration Law, “[o]nce the arbitration has commenced, requests for provisional or urgent measures shall be made directly to the arbitrators” (COMITÊ BRASILEIRO DE ARBITRAGEM. Law no. 9.307 of 23 September 1996 (including the amendments introduced by Law no. 13.129 of 26 May 2015). Translators: David de Freitas, Isabelle Oglouyan de Campos and Veronica Reade, 6 December 2023, page 10. Available at: https://cbar.org.br/site/lei-de-arbitragem/. Accessed on: 1 April 2025). Moreover, once “insure the arbitration procedure is established, the division of jurisdiction is not admitted, and it is up to the arbitral tribunal to resolve all the issues that are presented to it for the resolution of the dispute”, including the examination of the evidential elements (SUPERIOR COURT OF JUSTICE. Conflict of Jurisdiction No. 197.434/SP, Rapporteur: Justice Moura Ribeiro, Second Section, Judged on 5 October 2023, Published on 10 October 2023).
[15] MARQUES, Lilian Patrus. Antecipação da prova sem o requisito da urgência e convenção de arbitragem. Jota, 8 July 2019. Available at: https://www.jota.info/artigos/antecipacao-da-prova-sem-o-requisito-da-urgencia-e-convencao-de-arbitragem. Accessed on: 31 March 2025.
[16] On the early production of evidence without urgency and the negative effect of the arbitration clause, see the “Renova Case” (SUPERIOR COURT OF JUSTICE. Special Appeal No. 2.023.615/SP, Rapporteur: Justice Marco Aurélio Bellizze, Third Panel, Judged on 14 March 2023, Published on 20 March 2023). For comments on this case, see: ARSUFFI, Arthur; TAKEISHI, Guilherme; MENEZES, Isabella. Notas sobre produção antecipada da prova e arbitragem: uma visão crítica do recente posicionamento do STJ. Revista de Processo, São Paulo, Thomson Reuters Brasil, volume 345, pages 443-472, November 2023.
