An issue of great importance to the parties in any dispute resolution procedure is the issue of preliminary injunctions. In Brazil, it is common for the parties to use preliminary injunctions in dispute resolutions, because these measures sometimes guarantee the practical effects of a decision that may be issued later, and sometimes anticipate the decision itself that will be made, in the latter case there being a need to unequivocally demonstrate the right claimed.

In arbitration proceedings, the STJ case law already recognized the arbitrator's competence to grant precautionary measures, which ensure the practical effect of the final decision, but, however, arbitration decisions could not – and still cannot – be executed by the arbitration court, as coercion and the use of force are still powers reserved exclusively to the State.

This is the content of the decision handed down by Minister Nancy Andrigui in 2012:

“CIVIL PROCEDURAL LAW. ARBITRATION. PRECAUTIONARY MEASURE. JURISDICTION. NON-CONSTITUTED ARBITRATION COURT.

1. The Arbitral Tribunal shall have jurisdiction to process and rule on a request for interim relief made by the parties, but shall be limited to granting the relief, and shall be prevented from enforcing coercive measures, which, if the party resists accepting the determination of the arbitrator(s), shall be enforced by the Judiciary, to which the power of imperium is reserved. 2. Pending the establishment of the Arbitral Tribunal, the party may seek recourse to the Judiciary, by means of a measure of an interim nature, to ensure the useful result of the arbitration.”(…). 

(REsp 1297974/RJ, rapporteur Justice NANCY ANDRIGHI, THIRD PANEL, decided on 06/12/2012, E-DJ 06/19/2012)

Law 13.129/15, in turn, introduced two articles into the text of Law 9.307/96 – the Arbitration Law – which regulate the granting of precautionary measures both by the Judiciary, in advance, as stated in Article 22-A (..) “before the arbitration is instituted, the parties may appeal to the Judiciary for the granting of precautionary or urgent measures”, as well as the possibility of granting these measures if the arbitration procedure has already been initiated, as stated in the sole paragraph of Article 22 “b” of the aforementioned law.

The same law also gave arbitrators the power to “modify or revoke the precautionary or urgent measure granted by the Judiciary” in relation to the preliminary measures granted by the Judge. It is worth emphasizing that arbitrators do not have the power to execute the preliminary measures in the event of the opposing party’s refusal to comply, or in the event of a fine being stipulated for non-compliance, a power still reserved to the State.

By Fabio Marques