Arbitration Law of Brazil: Practice and Procedure is a timely contribution to the development of commercial arbitration in Brazil, as it provides international practitioners and arbitrators with a useful reference tool to understand the Brazilian arbitral framework. Without sacrificing scholarly rigor, it provides a clear commentary on Brazilian arbitration legislation from a practical perspective, addressing the most relevant points in a direct and instructive manner, so that even someone unfamiliar with Brazilian law can comprehend all issues. This work reflects the experience of the authors, who are among the most prominent arbitration practitioners in Brazil. Both authors have long been committed to the development of arbitration, through teaching classes, organizing seminars and writing articles, not to mention their work on the Arbitration Committee of the Rio de Janeiro State Chapter of the Brazilian Bar Association, the first institution in Brazil to help develop and improve alternative dispute resolution mechanisms. Besides the authors’ work, this book also contains in its appendices articles from other leading Brazilian scholars analyzing relevant issues in connection with arbitration in Brazil. This provides an enlightening combination of practical background and academic debate.
1. Scope of the book
2. General overview
2.1. Historical background of arbitration in Brazil.
2.1.1. Early legal framework.
2.1.2. The Civil Code of 1916 and the Code of Civil Procedure of 1973.
2.1.3. The Arbitration Bill.
2.1.4. The Arbitration Law of 1996.
2.1.5. Constitutionality of the Arbitration Law of 1996.
2.1.6. The Civil Code of 2002.
2.2. Definition and nature of arbitration under the Brazilian legal framework
2.2.1. Definition of arbitration.
2.2.2. Legal nature.
2.3. Forms of amicable dispute resolution.
2.3.1. Mediation.
2.3.1.2. Mediation clauses.
2.3.1.2. Clauses combining arbitration and mediation.
2.3.2. Conciliation
2.3.4. Other ADRs.
3. Arbitrability
3.1. Exposition of the issue.
3.2. Subjective limits to arbitration – who can be a party to arbitration
3.2.1. Arbitration in concession of public services
3.2.2. Arbitration in oil and gas exploration and production agreements
3.2.3. Arbitration in telecommunication disputes
3.2.4. Arbitration in transportation disputes
3.2.5. Arbitration in public-private partnership
3.3. Objective limits to arbitration - matters which cannot be arbitrated
3.4. Arbitration in consumer contracts and adhesion contracts
3.5. Arbitration in agency agreements
3.6. Procedure for preliminary questions that cannot be arbitrated
4. Law applicable to the merits
4.1. Choice of substantive law.
4.1.1. Choice of foreign law in domestic arbitration.
4.1.2. Applicable law if the contract is silent.
4.2. Public policy
4.3. Judgment ex aequo et bono.
4.4.General principles of law, commercial usage, custom, international business principles andlexmercatoria.
4.4.1. General principles of law.
4.4.2. Trade usages and customs.
4.4.3. International business rules.
4.4.4. Lex mercatoria.
5. Arbitration Agreements
5.1. Arbitration agreements
5.2. Arbitration clauses: nature and validity
5.2.1. Representation of a party through a power of attorney.
5.2.2. Lack of signature of a party in the contract containing the arbitration clause.
5.3. Autonomy of arbitration clauses
5.4. Negotiating and drafting an arbitration clause.
5.5. Scope of the clause
5.6. Institutional or ad hoc arbitration.
5.6.1. Institutional arbitration.
5.6.1.1. Advantages and disadvantages of institutional arbitration.
5.6.1.2. Choice of arbitration institution.
5.6.1.2.1. Administrative fees charged by arbitration institutions.
5.6.1.3. Selection of an institution as deterrence against future claims.
5.6.1.4. Administration of arbitration by one institution under another institution’s rules.
5.6.2. Ad hoc arbitration.
5.7. Language.
5.7.1. Applicable language if the arbitration agreement is silent.
5.8. Seat of arbitration
5.8.1. Seat of arbitration, in the absence of agreement
5.8.2. Performance of procedural acts in places other than the seat of arbitration
5.9. Efficacy of burdensome arbitration clauses
5.10 Pathologic arbitration clauses
5.11. Effects of arbitration clauses against third parties.
5.11.1. Effects of an arbitration clause on a contract’s assignee.
5.12. Specific performance of arbitration clauses.
5.12.1. Controversy as to the need to seek judicial enforcement, in case of a full arbitration clause.
5.12.2. Previous notice before judicial enforcement.
5.12.3. Procedure for judicial enforcement of arbitration clauses.
5.12.4. Judicial enforcement of arbitration awards involving contracts executed before the Arbitration Law of 1996.
5.13. Submission agreements.
5.14. Termination of the arbitration agreement
5.14.1. Bankruptcy
6. Arbitrators
6.1. Requirements to serve as arbitrator
6.2. Number of arbitrators
6.3. Choosing an arbitrator
6.3.1. Knowledge of the subject matter
6.3.2. The arbitrator’s nationality.
6.3.3. Language.
6.4. Chair of the arbitral tribunal
6.5. Co-arbitrators.
6.6. Secretary of the arbitral tribunal.
6.7. Procedure for appointment of arbitrators.
6.7.1. Arbitrator appointment in institutional proceedings.
6.7.1.1. List of recommended arbitrators.
6.7.2. Arbitrator appointment in ad hoc proceedings.
6.7.3. Arbitrator appointment in multiple-party arbitrations.
6.7.4. Judicial court assistance in appointment.
6.8. Arbitrators’ duties
6.8.1. Competence.
6.8.2. Diligence.
6.8.3. Discretion.
6.8.4. Independence and impartiality.
6.8.4.1. Neutrality.
6.8.4.2. Ex parte contacts with the arbitrator.
6.8.5. Duty to disclose.
6.9. Challenge of arbitrators.
6.9.1. Grounds for challenge.
6.9.2. Procedure for challenge.
6.9.3. Confirmation of arbitrators.
6.10. Replacement of arbitrators.
6.11. Arbitrators’ liability.
6.11.1. Civil liability.
6.11.2. Criminal liability.
6.12 Arbitrators’ fees
7. Arbitral Proceeding
7.1. Procedural rules.
7.1.1. Subsidiary application of foreign procedural rules.
7.2. Mandatory principles.
7.2.1. Full defense and proper response (contraditório).
7.2.2. Equal treatment of the parties.
7.2.3. Arbitrators’ impartiality and free convincement.
7.3. Confidentiality.
7.3.1. Confidentiality and administrative law entities.
7.4. Representation of the parties.
7.5. Initial written submissions
7.5.1. Request for arbitration.
7.5.2. Answer to the claim.
7.5.3. Respondent’s default.
7.5.4. Counterclaims.
7.5.5. Amendment to the claim or counterclaim.
7.5.6. Further written statements.
7.6. Multiple-party disputes.
7.6.1. Compulsory joinder.
7.6.2. Permissive joinder.
7.6.3. Consolidation of claims.
7.7. Third party intervention.
7.8. Formal institution of the arbitration.
7.9. Pleas against jurisdiction and/or the arbitrator.
7.10. The arbitral tribunal’s competence to rule on its own jurisdiction (“competence-competenceâ€) andanti-suit injunctions.
7.11 Terms of reference
7.12. Mandatory conciliation of the parties.
7.13. Coercive and urgent measures during the arbitration.
7.13.1 Urgent measures before formation of the arbitral tribunal
7.13.1.1. Revocation by an arbitration tribunal of preliminary injunctions granted by a judicial court.
7.13.2. Coercive and urgent measures after the formation of the arbitral tribunal.
7.13.3. Venue for coercive and urgent measures.
7.13.4. Antecipação de tutela.
7.14. Interlocutory orders.
7.14.1. Mandamus against interlocutory orders.
7.15. Summary judgment.
7.16. Submission of evidence.
7.16.1. Statements of representatives and witnesses.
7.16.2. Request for documents and discovery.
7.16.3. Expert examinations.
7.17. Hearings.
7.17.1. Hearing dates.
7.17.2. Place of the hearing.
7.17.3. Language of the hearing.
7.17.4. Calling of witnesses or the parties’ representatives to appear at the hearing.
7.17.5. Attendance at hearings.
7.17.6. Hearing procedure.
7.17.7. Cross examination at hearings.
7.17.8 Record of the hearing.
7.17.9. Post-hearing submissions.
7.18. Closing the proceeding.
7.19. Repetition of evidence, in case of arbitrator replacement.
8. The Award
8.1. Time limit to issue the award.
8.1.1. Extension of the time limit.
8.2. Formal requirements of the award.
8.2.1. Summary of the proceeding.
8.2.2. Reasoning.
8.2.3. Decision.
8.2.3.1. Liquidated awards.
8.2.3.2. Interest and indexation for inflation.
8.2.4. Date and place of the award.
8.2.5. Signature of the arbitrators.
8.2.6. Practical note on drafting an award.
8.2.7. Tied decision.
8.2.8. Dissenting arbitrator’s opinion.
8.3. Partial arbitral awards.
8.4. Settlement award.
8.5 Scrutiny of the award by the arbitration institution.
8.6. Delivery of the arbitral award.
8.7. Correction and clarification of the award.
8.8. Res judicata in arbitration.
8.9. Application to set aside an arbitral award.
8.9.1. Invalidity of the arbitration agreement.
8.9.2. Incompetence of the arbitral tribunal.
8.9.3. Formal defects of the award.
8.9.4. Awards outside the scope of the arbitration agreement or that do not decide all the issues submitted to arbitration.
8.9.5. Criminal misbehavior of the arbitrators.
8.9.6. Failure to issue the award within the applicable time limit.
8.9.7. Breach of procedural principles.
8.9.8. Procedure for such application.
8.9.9. Partial invalidity of the arbitral award.
8.9.10. Application to set aside foreign arbitral awards.
8.9.11. Suspension of the enforcement of an arbitration award pending an annulment lawsuit.
8.9.12. Rescission lawsuit
8.10. Challenge to judicial enforcement of an arbitral award (impugnação).
8.11.Decision on costs and expenses.
8.11.1. Attorney’s fees.
9. Recognition and enforcement of foreign awards
9.1. Domestic and foreign awards.
9.2. Recognition and enforcement of foreign awards
9.3. The New York Convention
9.3.1. Alleged abolishment of the exequatur requirement.
9.4. Grounds to deny exequatur of foreign awards.
9.4.1. Incapacity of a party.
9.4.2. Invalidity of the arbitration agreement.
9.4.3. Absence of proper notice and other impediments to presenting a proper defense.
9.4.4. Awards outside the scope of the arbitration agreement.
9.4.5. Arbitration proceedings conducted contrary to the arbitration agreement.
9.4.6. Not yet binding, annulled or suspended arbitral awards.
9.4.7. Arbitral award on a non-arbitrable matter.
9.4.8. Arbitral award against public policy.
9.4.8.1. Ungrounded foreign awards.
9.4.8.2. Service of process as a public policy issue.
9.5. Standard exequatur procedure.
Appendices
I) Commentary
1. Ten Years of the Arbitration Law of 1996: Overview and Prospects.
Pedro Baptista Martins
2. Arbitration in Brazil: Case Law Perspective
Arnoldo Wald
3. Arbitration in Brazil: The ICC Experience
Cristian Conejeros Roos and Renato Grion
4. Treaties on Arbitration in Force in Brazil
Carmem Tiburcio
5. Some Remarks on Arbitration in Corporate Law
Nelson Eizirik
6. The Arbitration Process
Carlos Alberto Carmona
II) Selected Treaties and Legislation.
1. Laws
1.1. Arbitration Law of 1996.
1.2. UNCITRAL Model Law
2. International Treaties
2.1. New York Convention of 1958.
2.2. Geneva Protocol of 1923
2.3. Panama Convention of 1975.
2.4. Montevideo Convention of 1979.
2.5. Protocol of Brasilia of 1991
2.6. Las Leñas Protocol of 1992 (Portuguese)
2.7. Protocol of Ouro Preto of 1994
2.8. Buenos Ayres Convention of 1998 (Portuguese)
2.9. Olivos Protocol of 2002
3. Rules of International Arbitration Institutions (On CD-ROM)
3.1. Arbitration Rules of the International Court of Arbitration of the International Chamber of Commerce - ICC.
3.2.International Dispute Resolution Procedures for the International Centre for Dispute Resolution - ICDR
3.3. Rules of Procedure of the London Court of International Arbitration - LCIA
3.4. UNCITRAL Arbitration Rules
3.5. UNCITRAL Conciliation Rules
3.6. Rules of Procedure of the Inter-American Arbitration Commission
4. Rules of Brazilian Arbitration Institutions
4.1. Arbitration Rules of the Arbitration Center of the American Chamber of Commerce São Paulo
4.2. Arbitration Rules of the The Brazilian Center of Mediation and Arbitration – CBMA
4.3. Arbitration Rules of the Brazil-Canada Chamber of Commerce
"This book will certainly contribute to the arbitration process, as it will play an important role of guiding practitioners through Brazilian commercial arbitration. That is why I recommended it as the official publication on the subject by the Arbitration Committee of the Rio de Janeiro Chapter of the Brazilian Bar Association."
- Professor Theóphilo de Azeredo Santos, Chairman of the Brazilian Committee of the International Chamber of Commerce (ICC) Chairman of the Arbitration Committee of the Rio de Janeiro Chapter of the Brazilian Bar Association.
"The book covers all aspects of Brazilian Arbitration Law. It is valuable material for those international practitioners whose work involves arbitration with Brazilian companies or in Brazil, as well as to those that intend to recognize a foreign arbitral award in the Country."
- Pedro Batista Martins is Of Counsel to Barbosa, Müssnich & Aragão Advogados in Rio de Janeiro. He is the former General Counsel of Embratel and is a co-author of the Brazilian Arbitration Law.