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Arbitrating in the Shadow: A Sociolegal Study of Labor Arbitration in Brazil
Brazilian Arbitration Act's approval in 1996 can be understood as part of a broader movement that sought to establish a transnational arbitration system. The growing of the international commercial arbitration market led to reforms of the domestic legal systems that aimed their integration to the transnational legal order.
During the two decades that followed this approval, the use of arbitration in Brazil grew exponentially and a new ADR (alternative dispute resolution) field was built around the institutions the work with it. My survey found 30 chambers practicing arbitration in São Paulo (the country's biggest urban center) which I clustered into three different profiles. This mapping revealed that more than 50% of the chambers are not working with commercial issues, like the legislators had expected, but rather with consumer or labor cases.
Concerning the labor cases, the situation is analytically interesting. There is an ongoing struggle between the practicing institutions and part of the judiciary that doesn’t accept the use of arbitration as a way of labor conflict resolution. They battle over whether labor rights should be considered “not disposable”, that is, if they can be freely abnegated or not. Judges usually establish that these rights are under public protection and thus command the suspension of those chamber’s activities. Likewise, the arbitrators situated in the most prestigious positions also refer to the labor chambers as “not taintless” institutions.
The focus of this proposal is to analyze this specific ADR universe. The field work allows us to understand how labor arbitration work, what are the representations shared by the agents involved and which are the practices that dominate this activity, as well as to investigate the conflicts that have being growing in this field.