Arbitragem em contratos internacionais: validade da cláusula arbitral nos Termos de Serviço de aplicativos de celular

Abstract

Arbitration is a form of dispute settlement that can be used in a variety of situations, but there are matters and situations under Brazilian law that prevent the use of arbitration, and, a query is if arbitration is possible as per the Mobile App Terms of Service. Thus, the creation of the Arbitration Law in Brazil will be studied with the goal to understand the moment of its creation and what was the intent of the lawmakers when doing so, comprehending in that way what are the matters that this law considers as non-arbitrable. A comparison was also made between this prohibition on certain matters to be resolved by arbitration under Brazilian law and the law of foreign countries seeing that the Terms of Service are an example of an international contract. After this analysis, it was examined how to classify the Terms of Service, following the Brazilian law and doctrines about contracts, concluding that it deals with a Adhesion contract in a consumer relationship. consequently, the arbitration clause as set out in the example contracts used is void as provided by the Brazilian Consumer Protection Code, but such invalidity does not preclude the use of the arbitration, if after the occurrence of conflict, the parties to make an arbitral commitment, therefore waiving a settlement by the state judiciary and choosing a settlement by the arbitration court.