On May 9, 2018, Justice Nancy Andrighi of the Superior Court of Justice – STJ, the highest Brazilian court for non-constitutional matters, issued an injunction reaffirming the principle of competence-competence under articles 8, sole paragraph and 20 of Brazilian Arbitration Act, according to which the arbitration panel is the only body competent to judge the competence of the arbitral venue, if an arbitral proceeding is pending. In her decision, Justice Andrighi revoked an anti-arbitration injunction which suspended an arbitral proceeding, under the basis that this type of measure goes against Brazilian arbitration system.
The ruling of the STJ refers to an arbitration filed by minority shareholders of Petrobras, the national oil company, against both Petrobras and the Federal Union, which is the controlling shareholder, for damages arising from alleged mismanagement of the company, in view of the facts revealed in the Car Wash operation, the famous Brazilian corruption investigation. The Federal Union obtained an injunction before the 13th federal court of São Paulo, to suspend the arbitration against it, due to a supposed lack of standing. The minority shareholders filed a motion of conflict of competence before STJ, asking that the Federal Union be maintained as a respondent and the arbitral proceeding to go forward until the arbitration panel judges the issue of whether the Federal Union is a legitimate party to the arbitral proceeding.
Justice Andrighi revoked the anti-arbitration injunction, in view of the principle of competence-competence. Although this was not the first precedent of STJ favoring such principle, it is noteworthy as indication of a strong pro-arbitration view of the highest court for non-constitutional matters. Moreover, some state-owned entities, such as the Brazilian Oil and Gas Agency, have obtained in the past anti-arbitration injunctions before lower courts, which tend not be upheld at higher courts, given the precedents of the Superior Court of Justice.