In a late 2020 judgment (REsp 1,894,715/MS), the Superior Court of Justice overturned a Court of Appeal’s ruling that had dismissed, in favour of arbitration, a lawsuit brought by a shipowner against charterer for payment of amounts due under the charterparty.
The grounds for allowing the suit to move forward were that charterer had tacitly waived the arbitration clause by previously commencing litigation against the owner before the Courts of the state of Mato Grosso do Sul, and also that this was a contradictory behaviour that would violate the principle of objective good faith (nemo potest venire contra factum proprium).
A shipowner sought to register a protest for non-payment of few unpaid invoices for amounts owed under a charterparty before the relevant Registry for Protests in Brazil. Such a registration is a requirement for a creditor to apply for debtor’s bankruptcy under certain circumstances, and it also makes the debt public to the market, among other consequences.
To avoid it the debtor has to pay the debt within a timeframe after being notified by the Registry, or get a court order preventing the protest to be registered by means of an ação cautelar de sustação de protesto. In this case, charterer applied before a Court to get such an urgent interim order, and later it filed a new lawsuit before the same Court seeking a declaration that it was not obliged to pay the invoices. The judgment does not indicate, however, the outcome of these suits.
Later, owner filed suit before the Courts of Mato Grosso do Sul claiming the payment of the same invoices. Charterer challenged the jurisdiction of the Court in favour of the arbitration provided for in the charterparty. The 1stinstance Court and the Court of Appeal of Mato Grosso do Sul held that the previous lawsuits would not amount to a waiver because the charterer had expressly raised the arbitration clause in its defence to this suit.
The Superior Court of Justice, as mentioned, overturned such judgment and allowed the suit to proceed. It held that charterer had tacitly waived the arbitration clause by commencing the previous lawsuits, and also that this was a contradictory behaviour that would violate the principle of objective good faith (nemo potest venire contra factum proprium).
The judgment did take on the fact that the disputes of all the suits were related to the same invoices as a factor, and so it is to be believed that the outcome would be the same if owner’s claims against charterer were related to other obligations arising out from the charterparty.
The judgment is unsurprising, but it is a good reminder that much care must be taken while applying to the Courts when there is an arbitration clause in the agreement with the defendant.
An application to the Courts to get an urgent interim order before the tribunal is constituted would not amount to waiving the arbitration clause, as expressly provided in article 22-A of the Brazilian Arbitration Act 1996. The Superior Court of Justice has already dealt with this issue specifically in relation to an ação cautelar de sustação de protesto in 2017 (REsp 1,694,826/GO).
However, claimant is then obliged to commence arbitration within 30 days, and the tribunal will then have jurisdiction to confirm, revoke or vary the Court’s interim order (articles 22-A and 22-B of the Act). There are a number of precedents previous to the addition of these provisions in the Act (which happened in 2015) holding the same.
Accordingly, this judgment clearly shows that applying to the Court for a final relief, even if a declaratory one, is to be deemed as a waiver of the arbitration clause, leaving claimant open to face litigation in Court from the other party(ies) of the agreement.