A inconstitucionalidade do artigo 189, IV, do Código de Processo Civil e a violação da reserva de plenário: uma análise da jurisprudência das câmaras reservadas de direito empresarial do Tribunal de Justiça do Estado de São Paulo

Abstract

This research project takes place because of the approach adopted by the judges of the Commercial and Arbitration Dispute Courts of São Paulo concerning the constitutionality of article 189, IV, of the Brazilian Code of Civil Procedure. In recent years, this provision has been declared unconstitutional ex officio to lift jurisdictional confidentiality in lawsuits arising from arbitral proceedings, as an academic example of the exercise of diffuse constitutional review by those judges. As expected, this issue has been widely debated in appeals filed against such decisions, giving rise to conflicting understandings within the Reserved Chambers of Corporate Law of the São Paulo State Court of Appeal. Broadly speaking, the 1st Chamber holds that article 189, IV, of the Code of Civil Procedure is unconstitutional, while the 2nd Chamber considers the provision constitutional. Moreover, the precedents declaring the unconstitutionality of the article have disregarded the full bench requirement set forth in article 97 of the Federal Constitution of the Republic of Brazil and article 949 of the Brazilian Code of Civil Procedure, since the matter has been decided by the court’s adjudicative panels rather than by the full bench. This context underscores the relevance of the present study, which aims to examine the merits of the aforementioned decisions and the procedural consequences of noncompliance with the full bench clause