The economics of arbitration: rational choice and value creation

• Autor(a) principal: Pugliese, Antonio Celso Fonseca
• Data de Publicação: 2008
• Outros Autores: Salama, Bruno Meyerhof
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista Direito GV
• Texto Completo: https://periodicos.fgv.br/revdireitogv/article/view/35168
• topic: ARBITRATION; LAW & ECONOMICS; EFFICIENCY; LEGAL CERTAINTY; ARBITRAGEM; DIREITO E ECONOMIA; EFICIÊNCIA; SEGURANÇA JURÍDICA

THIS ARTICLE EXAMINES THE INSTITUTE OF ARBITRATION AND ITS RELATIONSHIP WITH COURT ACTIVITIES FROM THE PERSPECTIVE OF TRANSACTIONS COSTS. ITS OBJECTIVE IS TO SHOW HOW ARBITRATION CAN REDUCE THE TRANSACTIONS COSTS IN A CERTAIN NORMATIVE ENVIRONMENT AND CONTRIBUTE TO INSTITUTIONAL IMPROVEMENT. THE COSTS RELATED TO THE USE ARBITRATION AND COURT PROCEEDINGS WORK LIKE A PRICE MECHANISM: THE BIGGER THE COST, THE LOWER THE DEMAND (AND VICE-VERSA). THE INSTITUTE OF ARBITRATION CAN POTENTIALLY ENGENDER A REDUCTION OF TRANSACTIONS COSTS BECAUSE OF (A) THE RELATIVE QUICKNESS WITH WHICH IT IS CARRIED OUT, (B) THE RELATIVE NEUTRALITY OF ARBITERS, AND (C) THE SPECIALIZATION OF ARBITERS. MOREOVER, THE USE OF ARBITRATION CAN CREATE BETTER INCENTIVES FOR THE FULFILLMENT OF CONTRACTUAL PROMISES. THIS IS SO BECAUSE THE USE OF AN ARBITRATION CLAUSE IN A CONTRACT ALLOWS THE PARTIES TO REGULATE THE NORMATIVE ENVIRONMENT TO WHICH THEY WILL BE BOUND IN CASE OF A DISPUTE. THE LACK OF CLARITY ABOUT THE LAWFULNESS OF ARBITRATION PROCEEDINGS INCREASES THE TRANSACTIONS COSTS IMPOSED BY THE NORMATIVE FRAMEWORK. HIGHER LEVELS OF UNCERTAINTY CREATE INCENTIVES FOR THE INDIVIDUALS TO CHANGE THEIR NEGOTIATING PATTERNS OR SIMPLY TO REDUCE THEIR PARTICIPATION IN ECONOMIC ACTIVITIES, THEREBY REDUCING THE POTENTIAL FOR GENERATING WEALTH FOR SOCIETY.