Título executivo extrajudicial com cláusula compromissória: uma análise dos limites da cognição do juiz e do árbitro

Abstract

The hereby monography aims to find a balance between two dispute resolution systems - arbitration and state jurisdiction - when they meet. The occasion under analysis is when the extrajudicial enforcement title has an arbitration clause. The investigation will have as a guideline the analysis of the limits of the judge's and arbitrator's cognition, when the arbitration clause is inserted in the title. For this reason, first, it will be studied what are the activities carried out by the judge in the enforcement process and how cognition takes place at the executive level. Then, there will be the study of several aspects of the arbitration system, having as a guide the effects of the arbitration clause and the role and powers of the arbitrator. Finally, this work will look at the circumstances in which the arbitration clause is inserted in the executive title; whether there is compatibility between the enforcement nature of the title and the negative effect of the clause; and what effects the insertion of the clause generates in the executive process, above all, what would be the limits of cognition of the state judge in face of this circumstance. In this sense, the study of this subject will prove to be essential, in view of the protection of firm legal certainty, so important for the reduction of the transaction cost and for the due delivery of the jurisdictional relief, in both procedures.