STJ's recent decision confirms understanding for the non -competence of the judiciary to discuss the characteristics of executive title that elements arbitration

in a decision of the month of April, the Superior Court of Justice reinforced understanding that it does not compete to the judiciary, in execution of an extrajudicial enforcement title containing compromise clause, the analysis of questions regarding the content of the Contract.

In the recent judgment, it was used as a previous case that discussed a contract that contained a compromise clause and confession of net, certain and enforceable obligation. At that time, the Court understood that what was sought was only the execution of unpaid amounts, that is, the controversy did not concern the legality of the compromise clause included in the contract.

In the case judged in April this year, the STJ reaffirmed the understanding, deciding that the part that resorted to the judiciary did not question the validity, effectiveness or existence of the compromise clause, but performed the payment that was it Due, so that the subrogated creditor acted correctly by filing the execution of the title containing clause providing for arbitration, considering that it is the only way to receive its credit. In the decision, the understanding that the executive process cannot be used to discuss the specific provisions of the contract was reinforced, since in these cases the arbitral judgment will be competent.

Understanding ratifies the provisions of the Arbitration Law (Law 9.307/96), in the sense that it is up to the arbitration judgment to decide on the existence, validity and effectiveness of the arbitration convention and the contract containing clause. Commitment. Thus, having the parties chosen the arbitration, the judiciary will not be competent to judge such points and the process must be extinguished. On the other hand, if the clause that constitutes the obligation of payment provides for the necessary conditions for the constitution of extrajudicial title, the judiciary may directly be triggered for the execution of the title.