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Commercial Arbitration

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Brazil

Fernando Eduardo Serec , and Pedro Bento de Faria
TozziniFreire Advogados

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
  2. Brazil is a party to the New York Convention, which it ratified through Presidential Decree No. 4,311 on 23 July 2002, following legislative approval through Legislative Decree No. 52, dated 5 April 2002.

    Brazil has not made any reservations (such as the commercial reservation provided in article I.3 of the Convention) or declarations to the New York Convention. 

  3. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
  4. Brazil is a party to a few multilateral treaties on international commercial arbitration, such as the Geneva Protocol on Arbitration Clauses of 1923, the Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards of 1979 (the Montevideo Convention), the Inter-American Convention on International Commercial Arbitration of 1975 (the Panama Convention), the Protocol of Las Leñas of 1992 and the 1998 MERCOSUR Agreement on International Commercial Arbitration. 

  5. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
  6. Brazil’s Arbitration Act, which was enacted on 24 September 1996, and altered by Act No. 13.129, enacted on 26 May 2015, is based on the UNCITRAL Model Law and on the Spanish Arbitration Law of 1988.

    Although the Arbitration Acts did not officially adopt the UNCITRAL Model Law (for which reason Brazil is not part of the official list of Model Law countries), the UNCITRAL Model Law has considerably influenced the Brazilian Arbitration Act, especially in relation to:

    • the formal and substantive requirements of arbitration agreements;
    • the principle of competence-competence; and
    • the possibility of obtaining judicial relief, especially for interim and preservation measures.

    The Brazilian Arbitration Act applies to all arbitral proceedings seated in Brazilian territory.

  7. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
  8. Among the most commonly chosen arbitration institutions in Brazil are:

    • the Arbitration and Mediation Center of the Chamber of Commerce Brazil-Canada (CAM/CCBC);
    •  the Sao Paulo Chamber for Mediation and Arbitration (FIESP/CIESP);
    • the Conciliation and Arbitration Chamber of Fundação Getúlio Vargas (FGV);
    • the Corporate Chamber of Commerce in Brazil (CAMARB);
    • the Arbitration and Mediation Center of the American Chamber of Commerce in São Paulo (AMCHAM);
    • the Mediation and Arbitration Center of the Portuguese Chamber of Commerce in Brazil; and
    • the Market Arbitration Center instituted by the São Paulo Stock Exchange BOVESPA/BMF (CAM).

    Some institutions, such as the CAM/CCBC and the FIESP/CIESP chamber, are currently undergoing a process of "internationalisation" by engaging into partnerships with other foreign arbitral institution like the Centro de Arbitraje y Mediación of Santiago, Chile. CAM/CCBC’s Rules will be used as procedural rules for the Willem C. Vis International Commercial Arbitration Moot in the 2016/2017 edition. 

    The institutions above may be designated as appointing authorities for nominating arbitrators.

  9. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
  10. Foreign arbitral providers may operate in Brazil and Brazilian law does not differentiate national and international providers.

  11. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
  12. Presently, there are no specialist arbitration courts in Brazil.

    However, some state courts have attempted to inject some degree of specialisation in arbitration-related matters into civil courts, such as the Rio de Janeiro State Court, which has focused all arbitration matters into the civil courts specialised in corporate disputes (Varas Empresariais).

    Because arbitration has made considerable advances in Brazil in the last few years, the number of cases, both domestic and international, has increased drastically and Brazilian courts have become almost uniformly supportive of arbitration as a form of dispute resolution.

    Agreement to arbitrate

  13. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
  14. In Brazil, arbitration may be used to resolve disputes involving “negotiable rights of a pecuniary nature” (that is, not involving public policy matters, family matters and so on) between parties that enjoy full legal capacity.

    Formally, arbitration agreements must be made in writing, which generally means that they must be signed by the parties. However, on a case-by-case basis, signing may be not required if consent has been unequivocally expressed by other written means, such as by specific reference to the arbitration clause by email or fax.

    An arbitration clause that specifically refers future disputes under the contract to arbitration is perfectly admissible and will automatically set aside the jurisdiction of the courts.

    Post-dispute agreements to arbitrate are also admissible under the Arbitration Act, conditioned to providing the following:

    • full civil qualification, consisting of the full name, profession, civil state, document identification and address of the parties;
    • full name, profession and address of the arbitrators, or identifying which entity the parties have delegated the appointment of the arbitrators to:
      • the matter which is the object of the arbitration; and
      • the place where the award will be rendered.
  15. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
  16. Arbitrability is usually divided into “subjective arbitrability” (which refers to the parties’ capacity to engage in arbitration) and “objective arbitrability” (which refers to the arbitrability of the subject matter of a dispute).

    As to subjective arbitrability, the Arbitration Acts provides that the parties to an arbitration must have full legal capacity in order to engage in arbitration.

    On the other hand, objective arbitrability under the Brazilian law is limited to cases involving "negotiable rights" (direitos disponíveis). This means that certain matters may not be arbitrated even by mutual agreement of the parties. These are family matters, certain public policy matters and, arguably, individual employment-related matters.

    However, most commercial disputes may be arbitrated, including many disputes involving government-controlled entities.

    The law also requires that, in order to be admissible, arbitral clauses relating to contracts of adhesion (that is, where a standard-form contract is imposed on one party without the possibility of negotiating terms and conditions) must be in bold face type and specifically signed (initialled) by the adhering party (usually a consumer). Courts have only accepted exceptions to this rule in cases in which the adhering party is fully aware of arbitration practices and is highly educated in such matters.

  17. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
  18. The Brazilian Arbitration Act does not provide specific rules regarding the effects of an arbitration agreement on third parties, although the arbitration rules of some major arbitral institutions in Brazil partially provides for such cases.

    Brazilian doctrine mostly considers that third parties cannot be included in arbitrations, even in cases of compulsory joinder, permissive joinder or third party intervention, due to the voluntary nature of arbitration and the principle of party autonomy.

    Brazilian jurisprudence is not entirely unanimous in this respect. One should not conclude that an arbitral tribunal or court in Brazil will likely grant a request to compel a non-signatory third party to an arbitration clause. Similar to how the ICC has dealt with the matter, Brazilian courts and tribunals have tended to be more conservative in this regard and usually dismiss motions to compel non-signatory parties to arbitrations, except where relevant legal repercussions are at stake.

    In rare cases where third-party joinders were granted, the tribunals relied on the argument of implicit consent, group companies doctrine or connection of subject matter.

  19. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
  20. The Brazilian Arbitration Act does not provide for the consolidation of separate proceedings under one or more contracts. As a rule, the chosen arbitration institution will determine the possibility of consolidation. 

  21. 11.

    Groups of companies
    Is the 'group of companies doctrine' (or any other basis for piercing the corporate veil) recognised in your jurisdiction?

  22. Piercing the corporate veil is expressly allowed by the Brazilian Civil Code, in cases of abuse of the legal entity for fraud or other illicit purposes.

    As to the joinder of non-signatory parties to arbitration, with the exception of a few very rare cases, the “group of companies” doctrine is usually not recognised.

  23. 12.Separability
    Are arbitration clauses considered separable from the main contract?
  24. According to the Brazilian Arbitration Act, an arbitration clause is separable from the main contract. Thus, the validity and enforceability of the agreement to arbitrate must be analyzed separately from the validity and enforceability of the main contract.

    As a result, even if the main contract is found to be null, the parties will remain bound by the arbitration clause as a means of dispute resolution. 

  25. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
  26. The principle of competence-competence is recognised under article 8 of the Brazilian Arbitration Act, which provides that the arbitral tribunal (and not a court) is competent to find on its own jurisdiction.

    To prevent judicial interference in arbitral proceedings, Brazilian courts often invoke the principle of competence-competence in favour of arbitral tribunals. While the parties are free to submit a dispute as to the jurisdiction of an arbitral tribunal to the Judiciary, these requests are overwhelmingly denied in view of the principle of competence-competence (Rainbow v Safe et al). 

  27. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
  28. When drafting arbitration clauses, the parties should ensure that: (i) all the parties involved enjoy full legal capacity; (ii) the matter of an eventual dispute is arbitrable (only pecuniary and negotiable rights); and (iii) Brazilian public policy is not violated.

    Pre-dispute arbitral clauses are legally binding as long as they are in writing. Arbitral clauses may be inserted in the underlying agreement itself or in a separate document or amendment.

  29. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
  30. The use of institutional international arbitration is more common in Brazil, as opposed to ad hoc international arbitration. However, when parties choose ad hoc arbitration in Brazil, they will usually follow the UNCITRAL rules.

  31. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
  32. Since the issue of third-party joinder remains largely unsettled in Brazil, practitioners should be precise when drafting arbitration clauses that provide for multi-party disputes.

    Drafting clauses that provide for the possibility of multi-party disputes can avoid discussions as to the validity of the arbitration agreement. Issues pertaining to the right of each "incoming" party to challenge the arbitral tribunal’s composition will constitute a relevant factor in the clause. Brazilian courts have increasingly dealt with this problem and certain precedents may serve as guidelines to this effect (Trelleborg v Anel; Chaval v Liebherr).

    Depending on the specific circumstances, tribunals may accept third parties in the arbitration, although this is generally not the case and will only occur in very specific situations involving groups of companies, for instance.

    Parties should be careful to include in the arbitration clause provisions for a potential appointment of arbitrators by third parties, particularly as this may encompass constitutional issues involving due process of law in Brazil.

    Commencing the arbitration

  33. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
  34. In Brazil, arbitral proceedings are deemed to have commenced upon the arbitrator’s acceptance of his or her appointment, following the submission of a request for arbitration by one of the parties. The Brazilian Arbitration Act has not specified how an arbitrator must express his or her acceptance. Therefore, the parties or the arbitral providers must assure that arbitrators express their acceptance clearly.

    The acceptance of the arbitrator can be proved through any lawful means, which might include tacit acceptance.

    The Arbitration Law does not specify time limits on the parties' right to seek redress. Specific limitations are provided for different types of legal action under articles 205 and 206 of the Civil Code, which also apply to arbitration.

    Article 205 of the Civil Code establishes an overall limitation of 10 years for all legal actions that do not have a specific limitation provided by law.

    Article 206 establishes one, two, three, four and five year limitations for specific matters, such as insurance claims, alimony, residential rent, civil guardianship and enforcement of debts, accordingly.

    The limitation period for any given action is triggered by the occurrence of the relevant fact for which redress might be claimed (such as contractual default) and is interrupted by service of process on the offending party and after legal action is commenced.

    Choice of law

  35. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
  36. As long as there is no violation of public policy or a reasonable ethical standard, parties are allowed to choose the applicable law of arbitration. Parties may even allow for disputes to be decided by equity if they so desire.

    Brazilian doctrine mostly considers that parties may choose the substantive law applicable to the dispute, in view of the principle of party autonomy and the voluntary nature of arbitration.

    Nevertheless, in cases where the applicable law is not clear, the conflict of law rules of the Introductory Law to the Brazilian Civil Code will prevail. In such cases, applicable law will most likely be the one of the country where the contract was signed. 

    Appointing the tribunal

  37. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
  38. An arbitrator should be a person with full legal capacity, impartial, independent and, ultimately, a person who is trusted by the parties.

    Although Brazilian law does not expressly forbid legal entities from acting as arbitrators, in practical terms that would be impossible. By law, the role of an arbitrator is equivalent to that of a judge, which might entail criminal liability and therefore might not be extended to legal entities.

    Furthermore, it is important to note that, depending on the arbitration rules of the arbitral institution chosen by the parties, only arbitrators who participate in the institution’s list of approved arbitrators may be appointed. 

  39. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
  40. Brazilian law does not require arbitrators to be Brazilian nationals or residents.

  41. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
  42. When parties fail to nominate their respective arbitrators, they may rely on the applicable institutional rules regarding default appointment of arbitrators, or otherwise nominate an appointing authority to that end.

    Furthermore, the parties may require court assistance in order to carry out the appointment of arbitrators. Articles 6 and 7 of the Brazilian Arbitration Act provide that a judge may nominate the arbitrator(s) should the arbitration clause fail to specify the applicable rules for the default appointment of the tribunal. 

  43. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
  44. There is no specific rule that deals with the immunity of arbitrators. However, as the role of an arbitrator is, by law, analogous to that of a judge, arbitrators are considered to enjoy immunity, except in case of wilful misconduct, fraud, etc. 

  45. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
  46. In Brazil, arbitrators may only secure payment of their fees if the arbitral agreement provides for that possibility. As a rule, arbitrators’ fees are usually contingent upon a decision being rendered. Therefore, unless the rules applicable to the arbitration provide otherwise, arbitrators may only receive payments after an award is issued. 

    Challenges to arbitrators

  47. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
  48. Challenges to the appointment of an arbitrator can be made on the grounds of impediment and suspicion, which are the same that apply for disqualifying judges under the Code of Civil Procedure.

    Similar to the red list factors of the IBA Guidelines on Conflicts of Interest, impediment essentially means that an arbitrator is objectively partial to one of the parties or an outcome of the dispute.

    Suspicion is comparable to the IBA Guidelines orange list factors. These are subjective indications that the arbitrator in question may not be fully impartial to the parties or the dispute.

    Whether or not to challenge the appointment of an arbitrator is a right of the parties, provided under article 15 of the Arbitration Act, and it can be waived. Unlike with judges, there are no specific circumstances that require an arbitrator to be removed, if at least one party does not wish to do so.

    Interim relief

  49. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

  50. In Brazil, arbitral tribunals may grant interim measures any time along the proceedings. However, before the arbitral tribunal is constituted, the parties may resort to the Judiciary for urgent relief in respect of the arbitration, in which case once the arbitral tribunal is constituted it will decide on whether or not to uphold the court’s decision.

    While courts are usually relied upon to enforce interim measures granted by arbitral tribunals, they are barred from re-assessing the merits of those decisions.

    The most common form of interim relief requested in arbitration in Brazil is aimed at compelling the opposing party to produce evidence and compelling witnesses to attend hearings.

  51. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
  52. The Brazilian Arbitration Act provides that arbitrators may require advanced payment of part of the administrative costs of an arbitration. Often the arbitral institutions require such payments as form of guarantee.

    It is also possible that the parties declare their responsibility for the payment of the arbitration’s fees and costs when signing the arbitration agreement (article 11, V of the Arbitration Act). 

    Some institutional rules provide for the suspension of the proceedings should one the parties fail to pay their respective advances on costs. In order to avoid the suspension of the proceedings, the other party may offer to pay the total outstanding amount and collect the difference once an award is rendered.

    Procedure

  53. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?

  54. In general, the parties to an arbitration are free to either (i) establish the applicable procedural rules; (ii) choose those of an arbitral institution; or (iii) have the procedural rules be determined by the arbitrator.

    Certain procedural rules and principles must be observed throughout the proceeding, particularly in relation to due process, equal treatment of the parties, the right to state a thorough defence and the impartiality of the arbitrators. 

  55. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  56. Paragraph 3 of article 22 of the Arbitration Acts provides that the absence of one of the parties will not prevent an award from being issued. 

  57. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?
  58. Full US-style discovery is unusual in Brazilian commercial arbitration. While it is possible in principle, arbitrators are reluctant to order the production of documents from the opposing side, unless a party shows that a given document is essential to the arbitration.

    In practice, parties must prove their claims by their own means. While Brazilian law allows the production of evidence by any legal means, it is unusual for a party to be ordered to produce evidence against itself.

    It is not uncommon for the IBA Rules on the Taking of Evidence in International Commercial Arbitrations to be referred to in arbitration agreements. Nevertheless, there are no on-point judicial precedents on the matter. 

  59. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  60. When a witness refuses to attend a hearing and does not present a plausible reason for being absent, the arbitrator may request a judicial measure to compel the witness to be present at the hearing. An arbitrator may also request a judicial order to compel a party to produce documents.

  61. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  62. Brazilian procedure is inquisitorial in nature, which means that judges and arbitrators have the discretion to decide whether or not to authorise the production of the evidence intended by the parties. While "fishing-expedition"-style discovery is highly unusual in Brazilian arbitration, the parties are free to establish the procedural rules applicable to the proceedings. Therefore, a tribunal might order the opposite party to produce certain documents, on a limited basis, as long as the requesting party is able to justify the need for it.

  63. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  64. While it is common practice, a final hearing on the merits is not mandatory. As a civil law system, the hearings in Brazil are much simpler than in common law countries.

    Often times in Brazilian legal practice, arbitral tribunals will allow the parties to present written ‘final statements, summarising the main legal and factual issues discussed during the proceedings, prior to issuing a final award.

  65. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
  66. Hearings and procedural meetings of arbitrations seated in Brazil may take place outside Brazil and Brazilian law does not prevent the arbitrator from choosing where they should occur.

    Award

  67. 34.Majority decisions
    Can the tribunal decide by majority?
  68. In Brazil, arbitral tribunals may decide by majority vote. However, dissenting opinions might severely affect the viability of an award, especially if dealing with the quantum of the dispute. 

  69. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
  70. While arbitral tribunals are ultimately empowered to decide a dispute, their decisions are devoid of coercive power, which means that the parties will still rely on the judiciary to enforce whatever relief is granted in arbitration.

  71. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
  72. A decision by majority vote is perfectly admissible and therefore dissenting opinions are allowed. However, it is worth noting that dissenting votes are highly unusual in Brazilian arbitration practice.

  73. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
  74. The Brazilian Arbitration Act requires that arbitral awards: (i) contain a summary of the proceedings; (ii) thoroughly justify the tribunals’ findings with reference to every factual and legal issues of the dispute; (iii) respect the limits of the underlying arbitration agreement; (iv) specifically decide the subject matter of the dispute; and (v) contain the date and place of signing and the signature of all the arbitrators.

    The parties can request the annulment of the arbitral award, if it does not comply with the requirements above. 

  75. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
  76. Unless otherwise specifically agreed upon by the parties, the Brazilian Arbitration Act provides that a final award shall be issued within six months of the appointment of the tribunal or the arbitrator’s substitution, if it is the case. However, it is usual for more extended time frames to be established upon the execution of the terms of reference. Depending on the complexity of the matter, it is normal for arbitrations to last from six months to two years.

    In addition, after an award is rendered, the parties may still submit requests for clarifications, which tend to somewhat extend the time frame of the proceedings.

    Costs and interest

  77. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the 'loser pays' rule generally apply in your jurisdiction?

  78. The Brazilian Arbitration Act provides that arbitral awards might allocate costs and fees between the parties at the discretion of the arbitrators. Moreover, arbitral tribunals are free to allocate lawyers' fees as long as the parties have expressly agreed to that in the arbitration agreement.

    In practice, costs and fees are allocated between the parties proportionally to their respective losses, which means that the more a party is awarded, the less fees it will have to pay.

  79. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
  80. Interest rates may be awarded and usually are. If the parties have not agreed as to the applicable interest rates, tribunals often rely on the National Treasury's official index, the "SELIC" rate.

    Challenging awards

  81. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
  82. Arbitral awards may only be challenged under very limited circumstances. The grounds for setting aside an arbitral award generally relate to issues of composition and jurisdictional powers of the arbitral tribunal, scope of the decision in relation to the arbitration agreement and the subject matter of the dispute and the validity of the arbitration agreement.

  83. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
  84. Prior to being enforced in Brazil, foreign awards must be recognised by the Brazilian Superior Court of Justice (STJ), at which point they might be challenged under very limited grounds, all of which are essentially linked to breach of public policy.

  85. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
  86. The right of pleading before the judiciary is a constitutional guarantee, which may not be waived by mutual agreement. However, it is highly unlikely that any appeal against an arbitral award will be granted outside of the limited circumstances for setting aside awards.

    Enforcement in your jurisdiction

  87. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
  88. An award that has been set aside at the jurisdiction of its seat may not be recognised by Brazilian courts and therefore is not enforceable in Brazil.

  89. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
  90. As mentioned above, in order to be enforceable in Brazil, foreign awards must only be subject to recognition proceedings before the STJ. In recent years, the STJ has shown a clear pro-recognition bias, to the extent that only a small minority of challenges to the recognition of foreign awards are in any way successful.

  91. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
  92. The 2004 Public-Private Partnership Law (the PPP Law) and the 2005 Amendment to the Concessions Law (the Concessions Law) allow for the arbitration of disputes between public entities and private parties, in connection with deals concluded with the federal government or its organs.

    However, arbitration against the Brazilian State as such (and not simply against its instrumentalities) is unheard of in Brazil, since the country does not ratify bi or multilateral investment treaties and therefore individuals are barred seizing arbitration against the state under International Law.

    Moreover, under the 2015 amendment to the Brazilian Arbitration Act, state instrumentalities in general may now be parties to arbitration agreements and settle disputes through arbitration.

    Further considerations

  93. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  94. The vast majority of arbitrations are confidential, which is one of the main differences between arbitral proceedings and litigation. Although the Arbitration Act does not specifically provide for the confidentiality of proceedings, confidentiality is generally understood to fall within the discretion of the parties to establish their own procedural rules.

    However, when involving public entities, the Arbitration Act specifically establishes that the proceedings must respect the principle of publicity.

    Further, the arbitration rules of the most commonly used arbitration institutions contain specific provisions allowing the parties to make proceedings confidential, which is perfectly admissible under Brazilian law.

  95. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  96. In general, arbitral proceedings are confidential and parties are barred from disclosing any documents produced in the course of an arbitration, under penalty of being held liable for damages. However, that does not affect the evidentiary nature of the material should it be presented in another dispute, which is referred to as "borrowed evidence".

    The Arbitration Act does not specifically preclude the use of "borrowed evidence", but depending on the origin of the material, privilege issues should be considered carefully.

  97. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  98. The IBA Guidelines on Conflicts of Interest in International Arbitration have positively affected Brazilian arbitration, since many institutions rely on those guidelines when considering issues of conflicts of interest among arbitrators.

    Some of the leading institutions have issued their own guidelines on the matter. For example, in 2008, the CAM/CCBC issued its Code of Ethics for arbitrators, which addresses issues of conflict of interest, among other ethical concerns. A similar Code of Ethics has also been edited by the National Council for Mediation and Arbitration Institutions (CONIMA).

  99. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
  100. As a general rule, in Brazil parties may only produce evidence strictly relevant to the case at hand and which is produced through lawful means. Therefore, some conflict might arise with regard to the admissibility of certain evidence, specially privileged material.

    More generally, as it is a civil law country, in Brazil arbitration practice tends to be inquisitorial, as opposed to the adversarial model of common law countries. Therefore, while hearings, cross-examinations and depositions are commonplace, the arbitral tribunal usually has considerable latitude in conducting the proceedings and defining the admissibility of evidence.

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GAR know-how provides reliable cross-jurisdictional insight to help cement the building blocks of international practice. In this section, select experienced practitioners answer commonly-asked questions for key jurisdictions so allowing readers to be better-placed to solve the challenges of their working days.

Questions

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
  7. Agreement to arbitrate

  8. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
  9. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
  10. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
  11. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
  12. 11.

    Groups of companies
    Is the 'group of companies doctrine' (or any other basis for piercing the corporate veil) recognised in your jurisdiction?


  13. 12.Separability
    Are arbitration clauses considered separable from the main contract?
  14. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
  15. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
  16. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
  17. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
  18. Commencing the arbitration

  19. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
  20. Choice of law

  21. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
  22. Appointing the tribunal

  23. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
  24. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
  25. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
  26. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
  27. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
  28. Challenges to arbitrators

  29. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
  30. Interim relief

  31. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?


  32. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
  33. Procedure

  34. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?


  35. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  36. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?
  37. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  38. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  39. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  40. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
  41. Award

  42. 34.Majority decisions
    Can the tribunal decide by majority?
  43. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
  44. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
  45. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
  46. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
  47. Costs and interest

  48. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the 'loser pays' rule generally apply in your jurisdiction?


  49. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
  50. Challenging awards

  51. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
  52. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
  53. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
  54. Enforcement in your jurisdiction

  55. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
  56. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
  57. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
  58. Further considerations

  59. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  60. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  61. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  62. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?