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A sentença sobre a competência arbitral: natureza e regime de controle de anulação

The arbitrator’s decision on its own jurisdiction plays an important role in the field of arbitration. In practice, it is by means of this decision that the arbitrator controls the existence of the foundation of the arbitration, i.e., that the parties validly attributed jurisdiction to a private third person to decide a dispute exercising jurisdictional powers. Consequently, it is essential that this decision be submitted to a well-defined legal regime, which requires the determination of its legal qualification. In this context, the notion of “arbitral award” should benefit from a definition that is specific to arbitration law, and it shall not be defined by the simple transposition of the definition of state court’s “judgements” pursuant to civil procedure codes. Considering the characteristics of the arbitral jurisdiction, the decision of the arbitrator on its own jurisdiction shall be considered a genuine “arbitral award”. Therefore, this decision shall be submitted to the legal regime reserved exclusively to arbitral awards, which includes the legal regime for annulment of awards.