Economic inequality between the parties does not nullify the forum election

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Based on the consolidated understanding of the Superior Court of Justice that the mere economic or financial inequality of the litigants does not mean hyposufficiency capable of removing the forum clause, the 3rd Panel accepted Vale's special appeal and considered the election of the district of Rio de Janeiro valid , chosen by the parties in a contract for the provision of cleaning and building conservation services carried out at the mining company's unit in São Luís.


The contractual review action, filed by the conservation company in the district of the capital of Maranhão, sought compensation for losses resulting from the economic-financial imbalance of the contract. After the summons, Vale alleged the incompetence of the São Luís court, in view of the clause that elected the district of the capital of Rio de Janeiro.

In the first instance, the claim of incompetence B2B Lead was rejected, a decision maintained by the Court of Justice of Maranhão. For the state court, the forum selection clause would be abusive due to the structural and economic disparity between Vale, a multinational company, and the conservation company, which operates regionally.

Furthermore, the court understood that, as the contract was executed only in São Luís, it would be better to carry out the procedural investigation in that city.

The rapporteur of Vale's special appeal, minister Villas Bôas Cueva, highlighted that the main basis adopted by the TJ-MA to recognize hyposufficiency was the mere comparison between the economic situations of the litigants. According to the minister, no circumstance was described that would effectively point to a fragility situation for the conservation company.

“Hypo-sufficiency must be assessed with emphasis on the litigant’s own conditions. It must be recognized when a situation of vulnerability is characterized that imposes flagrant difficulties in terms of access to the Judiciary, which is not the case in the present case, in which large companies are litigating over a contract involving large amounts of money, with the case having been attributed the significant value of R$6,003,745.88”, stated the rapporteur.



When accepting Vale's exception of incompetence, the minister also recalled that it is not enough to remove the forum selection clause to provide services in the place where the action was originally proposed, “taking into account that eventual due diligence will be carried out through precatory letter, so that the alleged distance does not constitute an obstacle to access to judicial provision”. With information from the STJ Press Office.