Commercial Arbitration: Brazil

1. Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?

Brazil

Brazil acceded to the New York Convention on 7 June 2002, without any declarations or reservations. The New York Convention was incorporated into Brazilian law through Decree No. 4,311 of 23 July 2002.

2. Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?

Brazil

Brazil is also a party to (i) the Inter-American Convention on International Commercial Arbitration of 1975; (ii) the Inter-American Convention on the Extraterritorial Validity of Foreign Judgments and Arbitral Awards of 1979; (iii) the Mercosur International Commercial Arbitration Agreement of 1998; and (iv) the Protocol of Jurisdictional Cooperation and Assistance in Civil Commercial, Labor and Administrative Matters of 1992.

3. 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?

Brazil

The Brazilian Arbitration Act (BAA) entered into force in 1996 (Federal Law No. 9,307) and was amended in 2015 (Federal Law No. 13,129). It was largely guided by the UNCITRAL Model Law, but it is not a verbatim adoption and UNCITRAL does not consider Brazil to be a Model Law jurisdiction.  The BAA applies to all arbitral proceedings seated in Brazil and makes no distinction between domestic and international proceedings.

4. What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?

Brazil

The leading institutions that administer international arbitration proceedings in Brazil are:

• the Centre for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (CAM-CCBC);
• the ICC International Court of Arbitration, which has had a local office in Brazil since 2017;
• the Chamber of Conciliation, Mediation and Arbitration Ciesp/Fiesp;
• the Market Arbitration Chamber (CAM), which administers corporate disputes involving publicly traded companies; and
• the Business Mediation and Arbitration Chamber – CAMARB, which recently opened an office in Lisbon, Portugal.

CAM-CCBC, the ICC International Court of Arbitration and Ciesp/Fiesp also act as appointing authorities in ad hoc proceedings.

5. Can foreign arbitral providers operate in your jurisdiction?

Brazil

Yes.

6. Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with, and supportive of, the law and practice of international arbitration?

Brazil

The Brazilian judiciary is generally supportive of international arbitration. Courts in the main financial centres (in particular, in São Paulo, Rio de Janeiro and Belo Horizonte) typically render decisions that are consistent with the main purposes and principles of international arbitration. The state of São Paulo has also designated specific courts at both trial and appellate levels that specialise in corporate disputes and arbitration.

The most important court for arbitration in Brazil is the Superior Court of Justice (the STJ). The STJ plays an important role in reviewing decisions from lower (trial and appellate) courts, as well as consolidating the interpretation and application of the BAA and international treaties.

7. 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?

Brazil

Under articles 4 and 9 of the BAA, parties that wish to submit existing or future disputes to arbitration must do so in writing. For existing disputes, article 9 also provides that the arbitration agreement must identify the parties, the arbitrators or the institution administering the proceeding, the subject matter of the arbitration, and the place in which the award will be issued. Pursuant to article 4(2), an arbitration clause in a contract of adhesion will only be valid and enforceable if (i) the clause is in bold or in a separate, attached document, and specifically signed by the adhering party, or (ii) the adhering party takes the initiative to commence arbitration.

8. Are any types of dispute non-arbitrable? If so, which?

Brazil

Article 1 of the BAA provides that any individual, corporation or government agency capable of contracting may submit to arbitration disputes concerning transferrable property rights. Disputes involving issues that raise public policy concerns, in particular related to criminal law and family law, are generally not arbitrable under Brazilian law, but some pecuniary consequences related to those issues may be submitted to arbitration. While not common, labour and consumer disputes can be submitted to arbitration if specific legal requirements are met.

9. 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?

Brazil

Although consent is a foundation of arbitration in Brazil and therefore third parties may not, under normal circumstances, be bound by an arbitration agreement that they did not sign, legal theories like ‘group of companies’ (see, eg, Trelleborg case, TJSP, AC 9193203-03.2002.8.26.0000, 24 May 2006) and ‘related contracts’ (see, eg, Paranapanema case, TJSP, AC 0002163-90.2013.8.26.0100, 3 July 2014) have been raised in some exceptional circumstances to extend arbitration agreements to non-signatory third parties. In such cases, arbitral tribunals and courts have at times found an implicit or indirect consent to arbitrate.

The BAA does not have any express provision regulating the joinder of third parties, but several institutional arbitration rules do. In most cases, requests for joinder must be filed at the first opportunity and will require a prima facie assessment of the consent of the third party notified. Under such rules, if the request is filed after the arbitral tribunal has been appointed, any third party joining the proceeding will have to provide its consent to the tribunal appointed.

10. 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?

Brazil

Although the BAA is silent on this issue, several institutional arbitration rules include provisions for the consolidation of arbitral proceedings. For example, article 19 of the CAM-CCBC Rules and article 10 of the ICC Rules allow the consolidation of proceedings when (i) the parties agree to consolidation, (ii) the proceedings are based on the same arbitration agreement, or (iii) the proceedings are between the same parties and arise from the same legal relationship, and the arbitration agreements are deemed compatible. Other rules, such as article 3.9 of the CAMARB Rules and 6.2 of the CAM Rules, allow the consolidation of proceedings when there is an identity of causes of action.

11. Is the "group of companies doctrine" recognised in your jurisdiction?

Brazil

Brazilian courts have in limited circumstances relied on the ‘group of companies doctrine’ to find implicit consent to arbitrate when non-signatories from the same group of companies of one of the parties were involved in the negotiation or performance of the underlying contract. The most well-known precedents are the Trelleborg case (TJSP, AC 9193203-03.2002.8.26.0000, 24 May 2006) and the MatlinPatterson v VRG case (TJSP, AC 0214068-16.2010.87.26.0100, 16 October 2012), decided by the Court of Appeals of São Paulo.

In exceptional circumstances, the STJ has also pierced the corporate veil under article 50 of the Brazilian Civil Code and found implicit consent when the signatory and non-signatory parties belonging to the same group of companies abused their rights, committed fraud or acted in bad faith (see, eg, Continental case, STJ, REsp 1.698.730-SP, 8 May 2018).

12. Are arbitration clauses considered separable from the main contract?

Brazil

The principle of separability is incorporated into article 8 of the BAA, which provides that ‘[t]he arbitration clause is autonomous from the agreement in which it is contained, such that nullity of the agreement does not necessarily entail nullity of the arbitration clause.’

13. 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?

Brazil

Brazilian courts have consistently recognised the principle of competence-competence, incorporated in article 8 of the BAA. This provision states that arbitrators have the authority to decide the existence, validity and effectiveness of the arbitration agreement and of the contract in which the clause is contained. Typically, Brazilian courts will only entertain challenges to the validity of arbitration agreements on rare occasions, when a prima facie analysis reveals a possible manifest defect in the arbitration agreement.

14. 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?

Brazil

The BAA favours enforcement of an arbitration clause as long as it is in writing and it unequivocally shows the parties’ intent to arbitrate. If these elements are present, but the parties fail to establish a clear procedure for the commencement of an arbitration and, in particular, for the appointment of the arbitral tribunal, article 7 of the BAA allows a party to ask Brazilian courts to fill the gaps in the arbitration clause. In most cases, Brazilian courts will enforce the arbitration clause and determine the applicability of a set of institutional rules of its choice. Additionally, if the arbitration clause is inserted in a contract of adhesion, the clause must fulfil certain additional formalities (see question 7).

15. 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?

Brazil

In Brazil, institutional arbitrations are more common than ad hoc arbitrations. Parties that opt for ad hoc arbitrations often use the UNCITRAL Rules.

16. 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.

Brazil

The BAA does not determine any specific procedure for multi-party arbitrations. However, most institutions that administer proceedings seated in Brazil do include specific rules for multi-party arbitrations, usually providing that the multiple claimants or the multiple respondents shall jointly appoint an arbitrator and that if any side fails to agree on the joint appointment, the institution will appoint all members of the tribunal. One of the few exceptions is CAM-CCBC, whose rules do not adopt the default procedure of joint appointment: article 12.1 of the CAM-CCBC Rules provide that the institution will appoint all members of the tribunal if the parties fail to agree on a method for appointing the arbitral tribunal. Therefore, when drafting multi-party arbitration agreements, parties that want to avoid delays or do not want institutions to appoint all arbitrators should carefully consider a balanced and efficient method for appointing arbitrators.

17. 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?

Brazil

Although parties interested in commencing arbitral proceedings typically do so by submitting a request for arbitration, under article 19 of the BAA proceedings are deemed to have been effectively commenced only upon the acceptance of appointment by the arbitrators. Nonetheless, article 19(2) clarifies that the commencement of the proceeding (ie, the constitution of the tribunal) tolls the statute of limitations retroactively to the date of the filing of the request for arbitration.

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

Brazil

Under article 2 of the BAA, the parties may determine that the arbitration be decided ex aequo et bono or in accordance with the substantive law of their choice, as long as their choice is not contrary to public policy. The parties may also agree that the arbitration be conducted under general principles of law, customs, usages and the rules of international trade. If the parties’ choice is unclear, the applicable substantive law shall be determined by the arbitral tribunal once constituted. The BAA is silent as to how the tribunal may do so.

Arbitrations involving Brazilian state entities must always be decided in accordance with Brazilian law.

19. Does the law of your jurisdiction place any limitations in respect of a party's choice of arbitrator?

Brazil

Article 13 of the BAA requires that arbitrators have legal capacity and be trusted by the parties.  Additionally, the parties may appoint one or more arbitrators, but must always appoint an odd number.

20. 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?

Brazil

Non-nationals can act as arbitrators in Brazil, and often do. There are no specific immigration requirements, other than any visa requirements commonly applicable to individuals of the same nationality of the arbitrator.

21. 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?

Brazil

If the arbitration agreement is in writing and unequivocally shows the parties’ intent to arbitrate, but the parties fail to establish a clear procedure for the appointment of the arbitral tribunal, article 7 of the BAA allows a party to ask Brazilian courts to fill the gaps in the arbitration clause. In most cases, Brazilian courts will enforce the arbitration clause and determine the applicability of a set of institutional rules of its choice. If, however, the parties have clearly agreed on a set of institutional rules, they will be subject to the relevant provisions of that institution concerning the default appointment of arbitrators and may not seek court assistance.

22. Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?

Brazil

There are no provisions under Brazilian law expressly granting arbitrators immunity from suit.  Pursuant to article 14 of the BAA, arbitrators are generally subject to the same duties and responsibilities as judges, and may therefore be subject to civil liability in cases of fraud (with actual or reckless intent). Additionally, article 17 determines that, when exercising their functions, arbitrators are subject to the same rules on criminal responsibility applicable to government officials, including, in particular, rules concerning corruption.

23. Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?

Brazil

The BAA is silent on this issue. Most institutional rules allow the institution and/or the tribunal to request the parties to make advance payment of registration fees and arbitrators’ fees. If one of the parties fails to make any such payment, the other party is allowed to make all the due payments. If none of the parties is willing to pay, the arbitration is usually stayed and terminated if no payment is made within a certain period of time.

24. 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?

Brazil

Although articles 14 and 20 of the BAA refer to the rules on conflicts of interest applicable to judges pursuant to the Brazilian Code of Civil Procedure (CCP), courts and arbitral institutions have consistently looked more broadly to violations of the arbitrator’s main duties of diligence, discretion, impartiality and independence, including the duty to disclose any circumstances that could give rise to justifiable doubts as to the arbitrator’s impartiality and independence. Unless the parties agree otherwise (including through institutional rules), the arbitral tribunal will decide on any challenges. When addressing challenges, courts and institutions sometimes also refer to the IBA Guidelines on Conflicts of Interest.

25. 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?

Brazil

The BAA expressly allows parties to seek interim relief from courts before the tribunal is constituted (article 22-A) or from arbitrators after the tribunal is constituted (article 22-B). Arbitrators can in principle grant the same types of interim relief that a Brazilian court can grant with respect to arbitrable claims, but do not have powers over third parties to the arbitration agreement or the authority to enforce their decisions (ie, they lack imperium). Interim relief is frequently sought to obtain attachment of assets or preserve the status quo. Parties seeking interim relief from arbitrators or courts usually have to establish a reasonable chance of success on the merits (fumus boni juris) and an imminent risk of irreparable harm (periculum in mora).

While there are no specific provisions under Brazilian law regarding anti-suit injunctions, parties have recently resorted to a proceeding called ‘Conflict of Competence,’ traditionally used to determine which court is competent to decide a claim brought before multiple courts, to ask the STJ to decide whether a court or an arbitral tribunal is competent to decide a claim brought before both fora.

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

Brazil

Although the BAA is silent on this issue, arbitral tribunals may order security for costs under their general powers to order interim relief. The rules of the main arbitral institutions in Brazil also provide that arbitrators and/or institutions may request advance payment of fees and costs of the tribunal and the institution.

27. 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)?

Brazil

Article 21(2) of the BAA provides that in the conduct of the proceedings, the parties and the arbitrators must observe at all times the principles of due process, equality of parties, impartiality of arbitrators, and rational persuasion of arbitrators. Article 13(6) also provides that in performing their function, arbitrators must proceed with impartiality, independence, diligence and discretion.

28. What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?

Brazil

Article 22(3) of the BAA provides that the default of a party does not prevent the arbitral tribunal from rendering an award. However, arbitral tribunals are still required to respect the minimum protections of due process and fair trial, and the default does not automatically lead to an award against the defaulting party.

29. What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?

Brazil

Consistent with international practice, in arbitrations seated in Brazil, parties are allowed to produce documents, expert opinions and witness testimony as evidence. Article 22 allows the tribunal to order the production of any evidence deemed necessary, at the parties’ request or ex officio. While there are no explicit rules on admissibility of evidence in arbitration, evidence obtained through unlawful means is typically deemed inadmissible.

In international arbitrations, parties and arbitrators have been increasingly referring to the IBA Rules on the Taking of Evidence, which has led to an increase in the use of international practices such as Redfern Schedules and written witness statements, which are uncommon in domestic arbitrations.  The use of the Prague Rules is still incipient.

30. Will the courts in your jurisdiction play any role in the obtaining of evidence?

Brazil

Before the constitution of the arbitral tribunal, courts may assist with any interim measures needed to preserve evidence. Once the arbitral tribunal is constituted, arbitrators seated in Brazil may seek the assistance of Brazilian courts in the enforcement of any order, including, for example, compelling an unwilling witness to testify. In order to do so, pursuant to article 22-C of the BAA, arbitrators may issue an ‘arbitration letter’ to the court with territorial jurisdiction to enforce the order.

31. What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?

Brazil

The BAA does not have specific provisions regarding document production. Article 22 allows the tribunal to order the production of any documents deemed necessary, at the parties’ request or ex officio. Although Brazilian law does not impose on parties a duty to voluntarily produce evidence, in international arbitrations, parties and arbitrators have been increasingly referring to the IBA Rules on the Taking of Evidence or otherwise agreeing to voluntary and ordered document productions (eg, through Redfern Schedules).

32. Is it mandatory to have a final hearing on the merits?

Brazil

There is no such requirement under Brazilian law.

33. If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

Brazil

Yes.

34. Can the tribunal decide by majority?

Brazil

Article 24(1) of the BAA provides that arbitral tribunals may decide by majority and that if a majority is not achieved, the opinion of the presiding arbitrator shall prevail.

35. Are there any particular types of remedies or relief that an arbitral tribunal may not grant?

Brazil

Pursuant to articles 18 and 31 of the BAA, arbitrators seated in Brazil have the same jurisdictional powers as Brazilian courts and their awards have the same effects as a decision issued by Brazilian courts. Therefore, arbitrators can, in principle, grant the same remedies in law (eg. monetary damages) or equity (eg, specific performance) that a Brazilian court can with respect to arbitrable claims, and face the same limitations that a Brazilian court faces (eg, cannot decide citra, extra or ultra petita). Additionally, arbitrators do not have powers over third parties to the arbitration agreement or the authority to enforce their decisions (ie, they lack imperium).

36. Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?

Brazil

Pursuant to article 24(2) of the BAA, a dissenting arbitrator may issue a dissenting opinion.  Such opinions are not uncommon in Brazil.

37. What, if any, are the legal and formal requirements for a valid and enforceable award?

Brazil

Under articles 24 and 26 of the BAA, a valid and enforceable arbitral award must be made in writing and include: (i) the name of the parties; (ii) a summary of the dispute; (iii) the grounds for the decision, describing the facts and legal issues considered; (iv) the decision ruling on the parties’ claims and requests; (v) the date and place in which the award was rendered; and (vi) the signatures of all the arbitrators. If one or more arbitrators are unable or refuse to sign the award, the presiding arbitrator shall acknowledge that fact in writing.

38. 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?

Brazil

Article 23 of the BAA determines that the award shall be rendered within the timeframe chosen by the parties or, absent any agreement, within six months of the constitution of the arbitral tribunal.  Pursuant to article 23, the parties and the tribunal may also agree on an extension of the deadline.

Under article 30 of the BAA, unless agreed otherwise, the parties have five days from receipt of the award to file motions for clarification, and under article 33(1) of the BAA, the parties have 90 days from receipt of the award to file before a Brazilian court a request to set aside an award.

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

Brazil

Article 27 of the BAA provides that the award should include the tribunal’s decision on liability for the fees and costs of the arbitration, as well as any liability in connection with bad-faith litigation, subject in all events to any agreement of the parties on this issue. In practice, parties are usually able to recover fees and costs under a ‘loser pays’ rule.

40. Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?

Brazil

While the BAA is silent on the issue, parties are generally allowed to seek interest on the principal claim and costs. Arbitral tribunals will typically refer to the rules of the Brazilian Civil Code governing interest in connection with disputes and observe the limits imposed by the Brazilian Usury Law.

41. Are there any grounds on which an award may be appealed before the courts of your jurisdiction?

Brazil

Article 18 of the BAA provides that arbitral awards are not subject to any sort of appeal.

42. Are there any other bases on which an award may be challenged, and if so what?

Brazil

Article 32 of the BAA sets out the exclusive grounds for setting aside arbitral awards issued in Brazil:  

• the arbitration agreement is null and void;
• the award was rendered by an individual who could not serve as arbitrator;
• the award does not meet the formal requirements of article 26 (see question 37);
• the award was rendered outside the boundaries of the agreement to arbitrate;
• the award was rendered through malfeasance, extortion, or corruption;
• the award was issued after the time limit agreed by the parties; or
• there is a violation of the principles set forth in article 21(2) of the BAA (see question 27).

43. 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?

Brazil

This issue is not addressed in the BAA and has not been settled by Brazilian courts.

44. Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?

Brazil

Brazilian courts have consistently relied on article 38(VI) of the BAA and article V.1(e) of the New York Convention to deny enforcement of foreign arbitral awards set aside in the seat of arbitration.

45. What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?

Brazil

Currently, there are no noteworthy trends regarding enforcement of foreign awards in Brazil. As the court competent to decide on the recognition of foreign awards, the STJ has been applying the BAA and the New York Convention consistently.

46. To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

Brazil

The currently prevailing view of Brazilian courts is that sovereign states have absolute immunity at the enforcement stage (see ACO-AgR No. 543, STF, 24 November 2006).

47. To what extent are arbitral proceedings in your jurisdiction confidential?

Brazil

The BAA is generally silent as to the confidentiality of proceedings. However, in practice, the vast majority of arbitrations seated in Brazil are confidential as a result of the applicable institutional rules, which usually make proceedings confidential.

The main exception concerns arbitrations involving state entities, which under article 2(3) must observe the constitutional principle of publicity and must therefore have some level of transparency.

48. 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)?

Brazil

Evidence and pleadings filed in an arbitration are usually subject to any agreement the parties may have regarding the confidentiality of the arbitration proceeding. However, a party may use any such documents in other court or arbitral proceedings if necessary to present its defence and protect its rights. In doing so, the party using these documents may need to take necessary precautions to avoid unnecessary disclosure of any confidential information.

49. What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

Brazil

There are no specific statutory ethical codes or standards applicable to arbitrations seated in Brazil.  Nonetheless, arbitrators and counsel are still subject to certain general standards. Under article 17 of the BAA, in the exercise of their functions, arbitrators are deemed comparable to public officials for criminal purposes. Additionally, counsel, as well as lawyers acting as arbitrators, are generally subject to the ethical rules of the Brazilian Bar Association, incorporated in its by-laws (Law No. 8,906) and in its Code of Ethics and Discipline. Finally, some arbitral institutions, such as CAM-CCBC, adopt their own code of ethics.

50. 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?

Brazil

Counsel and arbitrators participating in arbitrations seated in Brazil should always keep in mind: (i) the formal requirements applicable to arbitration agreements (in particular, to contracts of adhesion) and to arbitral awards; (ii) the deadlines for challenging an award; and (iii) any mandatory rules applicable to arbitrations involving Brazilian state entities. Counsel and arbitrators should also keep in mind that since the 2015 amendment to the BAA, it is possible to use ‘arbitral letters’ to more easily request the assistance of courts in the enforcement of orders issued by the arbitral tribunal.

Additionally, while Brazilian courts generally respect the competence-competence principle, recently parties have been resorting to a proceeding called Conflict of Competence, traditionally used to determine which court is competent to decide a claim brought before multiple courts, to ask the STJ to decide whether a court or an arbitral tribunal is competent to decide a claim brought before both fora.

51. Is third-party funding permitted in your jurisdiction? If so, are there any rules governing its use?

Brazil

Third-party funding is permitted in Brazil, and there are no specific statutory rules regulating this activity (concerning disclosures or otherwise). Some arbitral institutions, such as CAM-CCBC, have adopted rules on this issue, often requiring parties to disclose any third-party funding.