A crise funcional da jurisdição: a arbitragem como "lócus" alternativo para a (re)solução de conflitos

Abstract

Through an analytical approach to Procedural Law, we seek to understand the effects of the crisis in state performance of the judicial function and, from the evidence of the weakness of the judiciary to exercise effectively the function of resolving social conflicts, submit to arbitration as an alternative mechanism for the expansion of access routes to justice through social pacification. Combining the methods of monographic procedure, historical and comparative, it is observed from the perspective of organization of a state model that no longer meets the complexity of contemporary demands that the state functions need to be (re) designed mainly jurisdiction - which still proves adept at traditional unable to provide an adequate solution to the demands that are put to him conceptions. The judicial structure becomes insufficient for the increasing formulation for justice, on the inadequacy of the judicial procedure for the treatment of social conflicts that arise, evidenced in the high levels of congestion in the courts that contribute to delays in judicial judgments. In the failure of the State to maintain a monopoly on legal production and distribution of justice, reappear alternative instruments of access to fair legal system through informal procedures in order to reach a solution faster and more effectively. The arbitration appears to be a resolution mechanism of disputes more appropriate than the judicial proceedings for consideration of certain controversies, considering that develops through a less formal procedure based on the autonomy of the parties. Therefore, the simplification of the procedure allows the saving of time and costs with the arbitration process, beyond what is provided to the parties themselves to choose a trusted third party - responsible for the examination of the case - which ensures a higher degree of reliability in decision to be delivered.