STJ decides that tacit waiver of arbitration clause prevents its claim in conflict over the same contract

The specific case concerns the discussion in a monitorial action regarding the tacit waiver of the arbitration agreement.

The Third Panel of the Superior Court of Justice (STJ) decided for the impossibility of a procedural subject to invoke the existence of an arbitration clause, as a basis for extinguishing a monitory action (art. 485, VII, CPC / 2015), when contradictory conduct is observed. This is because it was found that, despite the existence of an arbitration clause, said procedural subject had proposed two related demands before the Judiciary.

The specific case concerns the discussion in a monitorial action regarding the tacit waiver of the arbitration agreement. The court of origin understood that such conduct was not envisioned, since the party requested in the monitorial action expressly requested the application of the arbitration clause in the monumental embargoes and in the preliminary of the appeal grounds. It was understood, therefore, that it would not be possible for the Judiciary to “rescind a clause freely accepted by the parties”, because it is not a hypothesis in which it acts ex officio, nor could the pacta sunt servanda be undone. Thus, the court of origin extinguished the monitorial action, accepting the allegation of the existence of an arbitration agreement.

In the Special Appeal, the appellant party listed several occasions in which there would have been a waiver of the arbitration clause (eg extrajudicial notification, filing of a precautionary action to suspend a protest and a declaratory action for the non-enforceability of the debt), as well as the restriction of its scope for execution of the contract and interpretation of the contractual clauses, thus not reaching the collection of defaulted invoices.

Rapporteur Minister Paulo de Tarso Sanseverino then applied the theory of his own acts, in order to materialize the principle of objective good faith, in the perspective that “no one is allowed to claim a right in contradiction with his previous conduct in same business relationship “, that is, the contracting parties are required to be consistent,” with the inadmissibility or prohibition of going against their own acts “.

In this sense, it was explained that the aforementioned theory is based on the premise that “the adoption of a certain conduct by one of the parties to a negotiating relationship gives rise to the belief in the other party that a certain right will not be exercised or, at the on the contrary, that he will be exercised in terms of the previous posture ”.

The conclusion was based on the observation that “it cannot be admitted that a contracting party proposes actions before the state court, tacitly renouncing the arbitration commitment and inducing in the other contracting party the belief of its acquiescence that the dispute between them established is resolved by the Judiciary, and no longer by the arbitral tribunal ”, with the absence of express waiver being irrelevant in this context, because the prohibition falls on contradictory conduct that violates objective good faith.

Wilson Sales Belchior