For years, arbitration has been growing and being used as a more suitable means for resolving conflicts. However, in Brazil, it faced a significant obstacle to its growth: the absence of national regulation. Over time, the regulatory norms for this procedure have expanded, and the range of matters subject to arbitration has increased.
Among the matters that gained strength with regulation is labor arbitration. With the recent regulation arising from Law No. 13.467 of July 13, 2017 – Labor Laws (CLT) – the procedure gained explicit provision, stipulated in Article 507-A:
Article 507-A: In individual employment contracts where the remuneration is more than twice the maximum limit established for the benefits of the General Social Security System, an arbitration clause may be agreed upon, provided it is initiated by the employee or with their express agreement under the terms provided in Law No. 9.307 of September 23, 1996.
The update in the law authorized that individual employment contracts with remuneration twice the limit established for the RGPS (twice R$ 7,087.22, equivalent to a total of R$ 14,174.44) could be agreed with an arbitration clause.
After the explicit regulation, the demand for arbitration procedures to address labor disputes increased, also motivated by other factors such as the evident slowness of lawsuits in the judiciary and the search for a more efficient procedure.
According to information from a (National Council of Justice) CNJ report, under state jurisdiction, the average time for a case is around 4 years and 7 months, which poses a certain impediment to real access to justice[1].
In contrast to this long resolution time in the judiciary, arbitration presents itself as a method that seeks to provide the parties, in the words of Gary Born, "a procedure as reliable and efficient as possible"[2]. aiming at a reduction in resolution time.
Particularly, in labor arbitration, time savings are significant, as this matter follows the expedited arbitration procedure, resulting in a conflict resolution time that is shorter. That is, even when compared to the average arbitration time of 1 year and six months according to CAM-CCBC numbers, labor arbitration has resolutions with shorter terms.
The choice of arbitration as a resolution method is not solely based on resolution time. In many instances, what occurs is a search by the parties for procedures with other specifications such as greater autonomy, specialty, informality, and even confidentiality, which are guiding principles of the arbitration procedure.
Ana Flávia Messa and Armando Luiz Rovai well emphasize that these principles are not confused with rules but rather assist in the understanding and guidance of them[3].
With principled support, the arbitration procedure highlights qualities sought by the parties, as well as the ability to rely on arbitrators with theoretical knowledge, not being subject to rigid forms, and not being obliged to disclose conflict data unrestrictedly.
Arbitration has no shortage of positive attributes to motivate its choice as a resolution method, however, attention must also be paid to the drawbacks of this type of procedure.
In the chapter “arbitragem versus judiciário” of the book “gestão de conflitos”[4], the authors well point out that the main obstacle to the establishment of arbitration is the high costs of the procedure. At times, the cost of arbitration can make the procedure unfeasible.
To enable the establishment of arbitration, various arbitration chambers provide cost calculators. In a hypothetical case simulated with the minimum wage required for the stipulation of an arbitration clause for labor arbitrations, CAMARB – Brazilian Chamber of Business Mediation and Arbitration informs a litigation cost twice the value of the case.
Therefore, to balance the costs of the arbitration procedure, in general, the cases have a higher value and therefore derive from high remuneration employment contracts.
It is observed that although the premise of high remuneration may reduce the number of disputes submitted to this type of procedure, the requirement also acts as a filter to meet another arbitration principle: the equality of the parties.
Before the consolidation generated by Article 507-A of the CLT, there was much debate about the clash between the principle of equality of the parties and the principle of the worker's vulnerability. Now, after regulation, there is no longer a discussion of vulnerability in the relationship since the employee necessarily presents a good economic condition and discernment about the case.
Thus, as result of effective regulation, a more efficient procedure, and an increasing search for alternative means of conflict resolution, labor arbitration is becoming one of the main areas dealt with in Brazilian chambers, currently occupying the third position among the most arbitrated sectors in the country, like demonstrated by the research ‘Arbitragem em Números’[5], from the teacher, lawyer and arbitrator Selma Lemes, specialist in domestic at international arbitrations.
[1] CNJ tempo m%C3%A9dio processo [Internet]. Bing. [cited 2024 May 17]. Available from: https://www.bing.com/search?pglt=43&q=cnj+tempo+m%C3%A9dio+processo&cvid=196771dc080a440db31148646437427f&gs_lcrp=EgZjaHJvbWUqBggBEAAYQDIGCAAQRRg5MgYIARAAGEAyBggCEAAYQDIGCAMQABhAMgYIBBAAGEAyBggFEAAYQDIGCAYQABhA0gEINDE1OWowajGoAgCwAgA&FORM=ANNTA1&PC=HCTS.
[2] Born, Gary (Introduction, In Gary B. Born, International Commercial Arbitration 9 Third Edition), 3erd edition ( © Kluwer Law International, Kluwer Law International 2021).
[3] Messa, Ana Flavia Manual de arbitragem/ Ana Flavia Messa, Armando Luiz Rovai. - 1. ed. - São Paulo: Almedina, 2021.
[4] HELENA, A.; Richard Marc Burbridge. Gestão de Conflitos. [172] Saraiva Educação S.A., 2017.
[5] BARROS, V.; BRUNO, E.; ARBITRAGEM, H. SELMA FERREIRA LEMES AUXÍLIO NA ELABORAÇÃO DA PESQUISA. [s.l: s.n.]. Disponível em: <https://canalarbitragem.com.br/wp-content/uploads/2023/10/ARBITRAGEM-EM-NUMEROS.pdf>. Acesso em: 27 maio. 2024.