By Vitor Ferrari

In a decision issued by the STJ, it was determined that the arbitration clause, also known as the arbitration clause, in which the parties to a contract establish that disputes will be resolved through arbitration, does not interfere with the Creditor's right to file for bankruptcy against the Debtor.

The case under analysis by the Superior Court concerned a bankruptcy petition filed by a company that had unpaid debts owed by Volkswagen do Brasil, represented by protested invoices, without the defendant having paid them off.

In its defense, Volks argued that the parties elected an arbitration forum, claiming that they had paid off part of the debts through compensation.

It is important to highlight that the Automaker, despite its allegations, made a competent evasive deposit in order to eliminate the hypothesis of the claim being upheld and the consequent declaration of bankruptcy.

In the history of the bankruptcy action, the first instance court understood that there was no interest in acting in filing the lawsuit, due to the lack of prior exhaustion of the matter in the arbitration court, deeming the process extinct, without resolution of the merits.

The Sentence was reformed by the Court of Justice of São Paulo, ordering the return of the case to the first instance for analysis of the request for bankruptcy.

Volks appealed to the STJ arguing that, by making the elusive deposit, it ruled out the possibility of having declared bankruptcy and restricted the controversy to issues of available property rights, attracting arbitration jurisdiction.

When analyzing the Special Appeal filed by the Automaker, Minister Raul Araújo, Rapporteur of the appeal, stated that the agreement of an arbitration clause has binding force, obliging the parties to the contractual relationship to respect, for the resolution of conflicts, the jurisdiction attributed to the arbitration court, with preponderance over the state court.

As the Rapporteur rightly observed, “… despite the contractual provision for an arbitration clause, there are unfulfilled executive titles, consisting of protested invoices and accompanied by documents to prove the effective provision of services, which gives rise to forced execution or a request for bankruptcy, based on article 94, I, of Law 11.101/05, which has the nature of collective execution”.

Thus, the conclusion is that the parties, when entering into the arbitration agreement, opted to submit their disputes to an arbitration court, but this option is not absolute and does not have the scope to prevent or definitively remove the participation of state jurisdiction, and, therefore, determining that the arbitration clause does not affect the enforceability of the unpaid credit instrument and neither does it prevent the filing of the bankruptcy procedure provided for in the legislation.