A Threat to The Kompetenz-Kompetenz Principle? The Intervention of The São Paulo Appellate Court in The Formation of The Arbitral Tribunal in Vale V. Shareholders

Key Takeaways

• TJSP annulled CAM B3 decision before tribunal formation.
• Ruling challenges Kompetenz‑Kompetenz principle but likely isolated.
• Arbitration law mandates tribunal decides its own competence first.
• Article 3.6 permits president appointment after failed joint selection.
• Superior Court expected to reaffirm pro‑arbitration stance.

Summary

The São Paulo Appellate Court (TJSP) annulled the CAM B3 President’s decision appointing all arbitrators in the Vale shareholders’ arbitration, intervening before the tribunal was constituted. Vale argued a fundamental right to choose an arbitrator, while the court held the action admissible, claiming no threat to the Kompetenz‑Kompetenz principle. The ruling contradicts Brazil’s arbitration law, which reserves competence disputes for the arbitral tribunal itself. Analysts view the decision as an outlier that does not overturn the established pro‑arbitration jurisprudence of the Superior Court of Justice.

Pulse Analysis

Brazil’s arbitration landscape rests on the Kompetenz‑Kompetenz doctrine, which grants tribunals the first say on their own jurisdiction. Article 8 of the Brazilian Arbitration Law and articles 32‑33 outline a chronological hierarchy that bars courts from reviewing procedural incidents until an award is issued. In Vale v. Shareholders, the São Paulo Appellate Court broke with this hierarchy by nullifying a quasi‑jurisdictional act of the CAM B3 chamber before any arbitrators were seated, raising concerns about the erosion of party‑autonomy safeguards that underpin cross‑border investment confidence.

The TJSP’s reasoning hinged on a narrow view of procedural versus jurisdictional acts, treating the president’s appointment power as merely administrative. Internationally, leading institutions treat such appointments as essential to due‑process and therefore subject to tribunal review, as reflected in the Paranapanema and Dutco precedents. By allowing premature judicial interference, the decision threatens the predictability of arbitration outcomes and could invite similar challenges in other Latin American jurisdictions, where courts occasionally assert broader supervisory roles.

Nevertheless, the Superior Court of Justice has consistently reinforced the primacy of arbitral tribunals, signaling that the TJSP ruling is likely to remain an isolated anomaly. Practitioners should advise clients to embed clear fallback mechanisms in arbitration clauses, such as pre‑agreed appointing authorities, and to be prepared to contest premature court actions through expedited interlocutory appeals. Maintaining vigilance over jurisdictional disputes will help preserve the efficiency and neutrality that make Brazil an attractive venue for high‑value commercial arbitration.