Cláusula de mediação privada como negócio jurídico: existência, validade e eficácia

• Autor(a) principal: Viotti, Juliana Kairalla Garcia
• Data de Publicação: 2020
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://tede2.pucsp.br/handle/handle/22998
• topic: Mediação - Brasil; Eficácia e validade do direito; Negócio jurídico; Mediation - Brazil; Effectiveness and validity of law; Legal transaction; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

The law nr. 13.140/2015, the Mediation Law, created a new paradigm to mediation in Brazil. The Mediation Law gave a new focus to the mediation clause, providing more legal certainty to the parties that agree to submit a contract dispute to a mediation process. The mediation clause is usually studied from the effects arisen of the existence of a dispute, that is, when the clause becomes effective. Thereby the literature is vast regarding the mediation process and there is a paucity of literature about the structure of mediation clause. The mediation clause is a legal transaction ruled by substantive law. This justifies its analysis in accordance with the trichotomous theory, that is, regarding it existence, validity and effectiveness. This thesis aims to analyze the structure of the mediation clause, in the context of business relations. In the plan of existence, the facts of the real world will be analyzed. Such facts shall have elements that make the mediation clause able to enter the legal world. In the plan of validity, the requirements established by the legal system will be presented so that the mediation clause can be considered valid. In the plan of effectiveness, it will be demonstrated the factors of effectiveness that allow the mediation clause to produce the effects intended by the parties upon its conclusion, that is, the withdrawal of state or arbitral jurisdiction. Least but not least, it will be presented the effects that an existing, valid and effective clause has on the legal world