The Application of the Public Policy Exception in Brazil, Russia, India and China - Chapter 6 - The Public Policy Exception under the New York Convention: History, Interpretation and Application - Second Edition

Dr. Anton G. Maurer, LL.M., FCIArb has been actively involved in international arbitration for more than 30 years, concentrating on commercial, post M&A, and corporate disputes, and the enforcement of foreign arbitral awards. He is also actively involved in international litigation and has been professionally involved in disputes or transactions in more than 65 countries and in over 90 jurisdictions. He graduated with a law degree as well as a PhD in public international law from the University of Tübingen, Germany, a Master of Laws in U.S. and Global Business Law from Suffolk University, Boston, MA, and a CIArb Diploma in International Arbitration.

Anton Maurer is an independent arbitrator, and the managing director of Anton Maurer International Legal Services GmbH which is seated in St. Moritz, Switzerland, and Anton Maurer International Legal Services Rechtsanwaltsgesellschaft mbH which is seated in Stuttgart, Germany. He frequently is appointed as an arbitrator.

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Originally from The Public Policy Exception under the New York Convention, Second Edition

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In the last years, globally active companies have increased their business activities in the most important growth markets in Brazil, Russia, India, and China. With the strong growth of trading and investment activities, such companies need a reliable and effective dispute resolution mechanism. Often, foreign judgments will not be enforced in Brazil, Russia, India, and China, but all four states are members of the New York Convention. Therefore, it is of the greatest interest for foreign companies to see whether such four countries are arbitration- friendly, whether a foreign arbitral award will be enforced in each of the four countries under Art. III of the New York Convention, and whether such countries have a good or a bad track record.

I. Brazil

Brazil acceded to the New York Convention on June 7, 2002; it became effective in Brazil on September 5, 2002.

A. Law

The New York Convention was incorporated into the Brazilian legal system by Decree No. 4.311 of July 23, 2002.

However, Brazil had already indirectly internalized the New York Convention by its Law No. 9.307 of September 23, 1996, the Brazilian Arbitration Act. Therefore, Brazil informally adopted the New York Convention five years before its official accession to the New York Convention.

By Constitutional Amendment no. 45 of December 8, 2004, the jurisdiction to recognize foreign arbitral awards shifted from the Federal Supreme Court (Supremo Tribunal Federal) to the Superior Court of Justice (Superior Tribunal de Justica), the court of last recourse in disputes involving the interpretation of federal law.