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In two cases related to Consumer Law, one against the company Google, and the other against Amazon, the SP Court invalidated arbitration clauses provided for in the contract, but which did not meet the requirements required by law.

 

In both cases, the courts highlighted that the generic invocation of an arbitration clause should not prevail. On the contrary, in adhesion contracts the clause will only be effective if the adhering party takes the initiative to institute arbitration, or expressly agrees with its institution.

 

See the cases.

 

 

In an adhesion contract, an arbitration clause depends on express agreement. (Image:

Account suspended - Google

 

In the first of them, a company filed an action against Google to refrain from suspending the author's account, as well as having her access reinstated, and her status being changed to "administrator". In the 1st degree, early protection was granted.

 

Google, in turn, requested the granting of a suspensive effect, and invoked the existence of an arbitration clause, which would subject the controversy to analysis by the Arbitration and Mediation Center of the Brazil-Canada Chamber of Commerce, with the case being extinguished without analysis. of merit. On the merits, he also said that the party itself had transferred the administration of the profile to the defendant.

 

However, when analyzing the appeal, the rapporteur, Judge Alexandre Bucci, understood that the appeal was unfounded.

 

"In effect, the generic invocation of an arbitration clause and the consequent argument of nullity of the appealed decision should not prevail."

 

He highlighted that, according to art. 4, § 2, of law 9,307/96, in adhesion contracts the arbitration clause will only be effective if the adhering party takes the initiative to institute arbitration, or expressly agrees with its institution, which did not happen in this case. "Such agreement should be in writing in an attached document, with the signature or approval especially for this clause."

 

Without proof that the legal requirements for arbitration purposes had been met, the clause was maintained as invalid.

 

Process : 0102522-82.2023.8.26.9061

Read the ruling .

 

Account suspended - Amazon

 

The second case involves a consumer and Amazon. The author states that she sold a variety of products on the company's platform, but had her account banned, leaving her balance of just over 2 thousand dollars blocked. Therefore, she sued the company, claiming the unlocking, as well as compensation for moral damages.

 

In defense, Amazon claimed the existence of an arbitration clause in the contract, and defended the legitimacy of blocking the account, as the author did not have the necessary positive score.

 

Judge Marcelo Augusto Oliveira, from the 41st Civil Court of Capital/SP, dismissed the preliminary incompetence of the court. He highlighted that the arbitration law establishes that, in adhesion contracts, the arbitration clause will only be effective if the adhering party takes the initiative to institute arbitration or expressly agrees with its institution.

 

In the case analyzed, it was observed that it was an adhesion contract in which the arbitration clause did not meet the indicated requirements.

 

On the merits, it granted the request to force Amazon to reactivate the author's account on the sales platform. The judge stated that any type of unfounded discrimination on the part of the provider is unacceptable, "therefore not allowing the provision of services to be stopped suddenly and without prior notice, absolutely without just cause". The request for compensation for moral damages was denied.

 

Process : 1141725-82.2022.8.26.0100

Read the decision .

 

 

 

Consumption

STJ: Compulsory arbitration clause in consumer contract is void

The Collegiate observed the Court's jurisprudence and rules that came to exist with the promulgation of the arbitration law.

From the Editor

 

 

The 2nd section of the STJ established that a consumer contract clause that determines the mandatory use of arbitration is void. The Collegiate observed the Court's jurisprudence and rules that came to exist with the promulgation of the arbitration law.

 

In the action, consumers contest the decision of the 4th panel of the STJ in the sense that the arbitration court has the power to decide, with primacy over the Judiciary, questions relating to the existence, validity and effectiveness of the arbitration agreement and the contract containing the clause.

 

According to consumers, the ruling is in conflict with precedent from the 3rd class, according to which, under article 51 of the CDC, contractual clauses that determine the compulsory use of arbitration are null and void.

 

 

 

STJ discusses effects of arbitration provision clause in consumer contracts.  that, in line with the Court's jurisprudence, it is observed that with the promulgation of the arbitration law, three rules of different degrees of specificity began to coexist in harmony.

 

They are: i) general rule, which requires compliance with arbitration when agreed by the parties; ii) specific rule, applicable to generic adhesion contracts that restrict the effectiveness of the promissory clause; ii) an even more specific rule, applicable to contracts subject to the CDC, whether adhesion or not, imposing the nullity of a clause that determines the compulsory use of arbitration, even if the requirements of art are met. 4th,  2nd of the CDC.

 

Therefore, he emphasized that the clause in the consumer contract that determines mandatory use is void.

 

Therefore, it accepted the embargoes to dismiss the special appeal. The decision was unanimous.