Decision ensures effectiveness for creditors and defines boundaries between state and arbitral jurisdiction.
By Michelle Lima
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Legale Overseas, no. 953.
The Third Chamber of the National High Court of Brazil (STJ) decided in August 2025 that the existence of an arbitration clause in a contract does not, by itself, prevent the filing of an enforcement action. The case involved a contract for the supply of food products and overturned a ruling by the Rio de Janeiro Court of Justice, which had ordered the suspension of enforcement until the arbitral tribunal issued a decision.
In this case, the supplier filed for enforcement based on invoices and bills of exchange related to the supply of goods, while the debtor restaurant argued that arbitration was necessary to discuss the validity of the enforceable instrument. The rapporteur, Justice Nancy Andrighi, emphasized that only the judiciary has coercive means to carry out attachment and expropriation of assets. Therefore, it would not be reasonable to require the creditor to initiate arbitration solely to confirm a title that already has enforceable power.
The ruling also made an important distinction: when the matter concerns contractual merit — such as the validity of the contract or allegations of non-compliance — jurisdiction lies with the arbitral tribunal, as agreed between the parties. On the other hand, when the discussion involves procedural issues typical of enforcement — such as the regularity of attachment, valuation, sale, or other enforcement acts — state jurisdiction prevails. This differentiation ensures that enforcement and arbitration can coexist, each within its own scope, without overlapping competencies.
Another relevant point is that the suspension of enforcement is not automatic. For it to occur, arbitration must be effectively initiated, and the interested party must request suspension from the state court. In the absence of such a step, enforcement should proceed normally. In the case at hand, since no arbitration was underway, the STJ ordered the continuation of enforcement.
The decision has significant practical effects for companies that include arbitration clauses in their contracts. While preserving the autonomy of arbitration to resolve complex disputes, it ensures that creditors retain the right to turn to the judiciary to guarantee the satisfaction of their claims, preventing the clause from being used as a delaying tactic.
Vaz de Almeida Advogados closely monitors precedents that directly impact civil litigation and business strategies. Careful analysis of these decisions allows us to guide our clients proactively and effectively, ensuring greater security in contractual relationships and efficiency in credit recovery.
Translation Disclaimer
This document was originally drafted in Portuguese and subsequently translated into English using artificial intelligence (AI).
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