The Third Panel of the Superior Court of Justice (STJ) recently set an important precedent for litigants in arbitration proceedings, judging special appeal 1.900.136-SP, whose opinion was written by Minister Nancy Andrighi.[1] At the time, the STJ confirmed (unanimously) judgment of the Court of Justice of São Paulo (TJSP) that rejected the challenge to enforcement of arbitration award, recognizing that the right of action had expired. The challenge, although based on a hypothesis of nullity set out in article 32 of Law 9307/96 (Arbitration Law - LArb) and filed within the defense period provided for in article 525 of the Code of Civil Procedure (CPC), was filed after the 90-day statute of limitations for filing an action for annulment of an arbitration award.
In September 2021, the findinding was ratified by the same panel in the judgment of Special Appeal 1.862.147-MG, under the rapporteurship of Justice Marco Aurélio Belizze.[2] The judgment confirmed the decision of the Court of Appeals of Minas Gerais - rendered before the judgment reported by Justice Nancy Andrighi - by rejecting the appellants' challenges to the enforcement of the arbitration award on the grounds of statute of limitations.
The debate arose from by the lack of express reference to the limitation in § 3 of Article 33 of the LArb, which deals with the declaration of nullity of the arbitral award in the context of challenge to the enforcement of judgment. The LArb indicated the period of 90 days only in § 1 of the same Article 33, regarding the "claim for the declaration of nullity of the arbitral award". This made room for the interpretation that this nullity could be alleged in defense of the enforcement of judgment, regardless of when the creditor filed the execution. However, according to the perspective adopted in the judgments of the Third Panel of the STJ, there is no such differentiation.
The judgment whose opinion was written by Justice Marco Aurélio Belizze was didactic when he explained that the 90-day statute of limitations for filing an action for annulment of an arbitration award should also be observed in the event of a request for declaration of nullity of the award in the event of an challenge to enforcement of the award, which is made possible by § 3 of the same article 33. Also in this sense, the Justice noted that the defense to the enforcement of an arbitration award based on one of the circumstances set out in Article 32 of the LArb must observe, in addition to the period of 15 days designated by the CPC for the presentation of the challenge to the enforcement of the award (from the subpoena in the file of enforcement of the award), the period of 90 days, counted from the notification of the respective judgment or the decision of the request for clarification.
As grounds for the decision, Justice Marco Aurélio Belizze pointed out that "the claim for annulment of the arbitral award must be filed immediately", in respect of celerity, effectiveness and legal certainty, objectives dear to the parties who choose to submit their dispute to arbitration. He also said that there is no legal support to support a distinction between the procedures provided for by law to obtain the declaration of nullity of an arbitral award, in order to allow only the annulment action to be subject to a statute of limitations for its filing. Justice Marco Aurélio Belizze had already formulated on previous occasions some of the concepts that led to his conviction. In the judgments of Special Appeal 1.519.041-RJ, on September 1, 2015, and Special Appeal No. 1.543.564-SP, on September 25, 2018, both under its rapporteurship, the Third Panel of the STJ rejected the theory that the declaration of nullity of a partial arbitral award by annulment action could only be obtained after the rendering of the final arbitral award. On the contrary, it held that the action for annulment of a partial arbitral award must be brought within the limitation period counted from the date of notification of the award. In those opportunities, the rapporteur's vote wrote, as in the recent decision, that the annulment action must be filed immediately and that the parties to the arbitration agreement deserve to have ensured speed, effectiveness and legal certainty.
In the judgment under the rapporteurship of Justice Nancy Andrighi, it was highlighted that the statute of limitations only prohibits only the challenge to the enforcement of an arbitration award based on the hypotheses defined by Article 32 of LArb, and that the defendant remains fully able to defend itself against the enforcement of an arbitration award as to the matters strictly specified in Article 525, § 1, CPC.The STJ seems to have established an understanding on the conformity of the 90-day statute of limitations, confirming a position that had already been defended by the state courts. The aforementioned STJ rulings upheld the lower court rulings with an identical interpretation of Article 33 of LArb and its paragraphs.[3]
The plaintiff's prerogative to choose the date to file the enforcement of the arbitral award, provided that the applicable statute of limitations is respected, is not mirrored for the debtor and defeated party of the arbitration proceeding. If the execution is distributed after the 90 days provided for in the LArb, the debtor will not have the possibility to argue the nullity of the arbitral award to defend itself against the enforcement of the award. Despite the two ways provided by LArb to challenge the validity of the arbitral award, in practice, it will only be ensured by filing an annulment action, since the date of the filing of the compliance with the award is not under the control of the losing party.
[1]Trial on April 6, 2021, published on April 15, 2021.
[2] Trial on September 15, 2021, published on September 20, 2021.
[3] In a research, it is possible to find judgments to the contrary, by not applying the statute of limitations period to the challenge to enforcement of award. However, they contain certain particularities, in addition to having been uttered in previous years. For example, in a decision of the TJSP, it was understood that the debtor was not aware of the arbitration award, which is why the statute of limitations period could not have started (AI 2224065-17.2018.8.26.0000, Judge Antonio Rigolin, Thirty-First Chamber of Private Law, judged on 29/04/2019, DJe 02/05/2019). In a decision issued by the Court of Justice of Paraná (TJPR), the statute of limitations was ruled out on the understanding that the challenge to enforcement of an arbitral award had been based on one of the hypotheses provided for in the CPC, of non-enforceability of the award (Article 475-L, II, of the CPC/73, then in force), although the lack of enforceability, in turn, resulting from the alleged nullity of the arbitral award (Apl Civ 0016842-46.2014.8.16.0001, Eleventh Civil Chamber, Judge Eduardo Novacki, tried on 03/08/2020).
