Author: Gustavo Favero Vaughn
In Arbitragem Constitucional (“Constitutional Arbitration”), published by Thomson Reuters Brazil in 2024, Georges Abboud, Francisco de Assis e Silva, and Antonio Gavazzoni – top-notch Brazilian practitioners with a great deal of experience in litigation and commercial arbitration – offer readers something still rare in Brazilian arbitration literature: a deliberately radical, methodologically non‑isolationist – and at the same time rigorous – stance on the place of arbitration within the constitutional order. The starting point is revealing: the authors pointedly reject the title “Arbitration and the Constitution,” deeming insufficient a mere “dialogue” between institutions. What they propose instead is a theoretical fusion, on the grounds that “it is the Constitution that makes arbitration possible and provides its foundation.” From this inaugural gesture, the entire architecture of the book unfolds: arbitration is not a self‑sufficient normative enclave, but a sophisticated appendix to a constitutionally structured legal system.
One of the book’s greatest strengths is its courage in returning arbitration to the terrain it so often avoids: legal theory, legal philosophy, and the sociology of law. Already in the introduction, the authors offer the key to their approach: arbitration is treated as a juridical fiction, and “arbitrationism” (as professional métier, culture, and grammar) is criticized precisely when it turns this fictional character into “nature,” fetishizing categories and blocking critique. The result is a second‑order critique: the goal is not merely to debate “best arbitral practices,” but to expose the mechanisms of symbolic legitimation that, in certain segments, shield arbitration from public standards of justification.
This strategy is strengthened by a carefully chosen theoretical framework, centered on Hans Vaihinger and the Als Ob (“as if”) philosophy, to show that law operates through constructions that do not aim to mirror reality, but to organize social experience and enable action and the stabilization of expectations. Arbitration thus appears as a “fiction of a fiction” inserted into a broader normative chain, with a decisive consequence: there is no autonomy without systemic responsibility.
The decision to follow a Kelsenian genealogical path is particularly fortunate, as it avoids two common reductionisms: (i) an economic reductionism that explains arbitration solely in terms of efficiency and speed; and (ii) a dogmatic privatism that portrays it as the pure expression of party autonomy. By mobilizing the distinction between causality and imputation, and the idea that the normative order structures freedom precisely by imputing consequences, the authors reposition arbitration: it is a form of decision‑making that only stands within the grammar of law as a normative order and, in constitutional democracies, within the Constitution as a shared horizon of justification.
This has immediate constitutional‑legal weight: if arbitration is an exercise of decision‑making power that claims definitiveness, its legitimacy cannot flow exclusively from contract. It requires institutional rationality, controls, and standards of reasoning compatible with constitutionalism.
The book is structured to carry this premise to its furthest implications, and the table of contents already signals the path: (i) arbitration as an environment of constitutionally regulated self‑regulation; (ii) binding force of the Constitution and precedents; (iii) accountability and enforcement; (iv) judicial activism and, above all, the control of arbitral activism and the annulment action.
A distinctive contribution of the work is that it refuses to treat “self‑regulation” as dogma. Instead, it analyzes it as a phenomenon that must be subjected to the social function and constraints of the constitutional order. In one of its most striking passages, the book lays out its central thesis: the degree of insulation some propose for arbitrators and arbitral tribunals can generate a republican paradox – the Federal Supreme Court, exposed to criticism and publicity, would be more rigorously scrutinized than the arbitral milieu. The critique is not rhetorical flourish: it points to a structural legitimacy deficit when arbitration claims public prestige (as jurisdiction) without accepting minimal public counterparts (such as transparency, standards of correctness, and mechanisms of accountability).
The chapter on “accountability and enforcement” crystallizes the normative core of the book. Here, the authors argue that arbitration need not lose its autonomy in order to receive inputs from constitutional law. On the contrary, constitutional law is “naturally oriented toward the containment of power” and can offer the conceptual tools for a “genuine arbitral accountability.” In other words, procedural autonomy does not amount to institutional sovereignty.
It is at this point that the contribution becomes dogmatically incisive. The authors contend that the subjection of arbitration to the Higher Courts in the Judiciary is not merely a matter of hierarchical norms, but flows from a systemic conception: if arbitration is part of the legal system, it must comply with the parameters of validity and correctness established by that system, just as other bodies and collegiate entities must do – and all the more so because arbitration entails the direct exercise of jurisdictional power. Hence the practical (and provocative) consequence: arbitral awards that conflict with binding precedents could be challenged by way of constitutional complaint (reclamação constitucional), to safeguard the competence and authority of the Supreme Court.
The argument is sophisticated because it shifts the focus from “is this allowed or not?” to “what does it mean to exercise jurisdiction in a constitutional order?” In this sense, the book operates as a work of institutional theory of control applied to arbitration.
Perhaps the most original – and publicly impactful – element is the diagnosis that certain autonomy‑driven discourses have produced a degeneration of arbitral practice, including the co‑optation and erosion of impartiality through the strategies of specific players. The book then proposes a path of institutional “republicanization”: the Judiciary as an external regulatory channel to foster the virtuous development of arbitration, through a reinterpretation of the annulment action and the assimilation of constitutional actions as instruments for challenging arbitral decisions and procedures.
In sum, Arbitragem Constitucional is not merely “a book on arbitration in light of the Constitution”; it reframes the very problem. What is at stake is not an external harmonization between two fields, but the understanding of arbitration as an exercise of decision‑making power that is only legitimate when reconnected to the civilizational heritage of constitutionalism. By rejecting isolationism and exposing the fetishism embedded in certain arbitral narratives, the authors render an important intellectual service: they restore to arbitration a public foundation of justification, without which the very expansion of the institution becomes vulnerable to crises of confidence.
The book produces a double effect. On the theoretical plane, it is a call for methodological honesty: to recognize arbitration as an institutional fiction and, for that very reason, as a legitimate object of critique, reconstruction, and control. On the dogmatic plane, it offers a concrete accountability agenda: precedents, constitutional jurisdiction, instruments of challenge, and a constitutionally adequate understanding of judicial review. Few books manage to combine, with such quality, deep conceptual density and genuine potential for practical impact.