A validade da cláusula compromissória do caso Petrobras à luz do ordenamento jurídico português e brasileiro

Abstract

This paper aims to provide answers to two questions. The first is whether a critical analysis of the Brazilian Superior Court of Justice ruling no. 151.130 - SP (2017/00433173-8) (Ac. STJ) allows us to propose a different conclusion from the one reached by the winning vote in that ruling on the validity of the arbitration clause set forth in Article 58.º of Petrobras' Articles of Association (Article 58.º). The second question is whether Article 58.º, in the light of the Portuguese legal system, would be effective if it were provided for in the articles of association of a Portuguese "mixed"2 economy company. In order to answer these questions, we will use the following theoretical framework: mostly the Ac. STJ, especially the report of Minister Nancy Adrighi, in the analysis of the Brazilian legal system; essentially the doctrines of A. M. Cordeiro, M. A. Barrocas and P. Maia, to analyse the Portuguese legal system. We will confront the referred theoretical bases with the understandings pronounced by other authors, as well as with the consolidated legislation in the respective legal systems. Based on the state of the art identified in each country, we will elucidate similarities and divergences of these systems regarding the issues of the effects of the arbitration clauses, the problem of the arbitrability of the dispute and corporate arbitration. After this analysis, an interpretation of the validity of Article 58.º will be proposed, both considering the Brazilian legal system and the Portuguese legal system. In preliminary conclusion, it is understood that it is possible to propose a decision in a different sense than the majority in the STJ's Ac. and, in light of the Portuguese legal system, it is inclined to the validity of Article 58.º of the Petrobras By-Laws.

Date of Award	13 Jul 2021
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Agostinho Guedes (Supervisor)