Arbitral Proceeding - Chapter 7 - Arbitration Law of Brazil: Practice and Procedure
Joaquim T. de Paiva Muniz is a Partner of the Rio de Janeiro office of Trench, Rossi & Watanabe - associated with Baker & McKenzie International. He is also Professor of Business Law and Arbitration in the graduate courses of Fundação Getúlio Vargas (FGV) and Rio de Janeiro State University (UERJ), as well as General Secretary of the Arbitration and Mediation Chamber and coordinator of the Arbitration Commission of the Brazilian Bar, Rio de Janeiro Chapter (OAB/RJ) and author of several articles on international arbitration and Brazilian corporate law.
Ana Tereza Palhares Basílio is a Partner of Andrade & Fichtner Advogados in Rio de Janeiro. Admitted to practice in Brazil, she is also Professor of Arbitration in the graduate courses of Fundação Getúlio Vargas (FGV) and. a member of the chapter management council of the OAB/RJ, Chairwoman of the Arbitration and Mediation Chamber and the Corporate Law Commission of OAB/RJ, as well as Vice-President of its Arbitration Committee. She is a member of the editorial board of Revista de Arbitragem e Mediação and author of several articles on international arbitration and Brazilian civil law.
About the Collaborators:
Arnoldo Wald is a lawyer practicing in São Paulo, Rio de Janeiro and Brasília and is Admitted to practice in Brazil and France. He has a Doctor Honoris Causa - University of Paris II. He is a Senior Professor of the Rio de Janeiro State (UERJ) Law School. Mr. Wald is a Member of the ICC International Court of Arbitration and Editor–in–Chief of Revista de Arbitragem e Mediação. He is author of several books on arbitration, commercial law and civil law.
Carlos Alberto Carmon was one of the three members of the committee that drafted the Brazilian Arbitration Law. He is a lawyer in São Paulo with a Ph.D. from University of São Paulo (USP) Law School. He is Professor of Civil Procedure at USP and author of several books and articles on arbitration.
Carmem Tiburci is a lawyer practicing in Rio de Janeiro. Admitted to practice in Brazil, she has a Ph.D. and LL.M. from the University of Virginia Law School. She is Professor of International Private Law at State of Rio de Janeiro State University (UERJ) Law School and author of several books on international law and international arbitration.
Cristián Conejero Roos is a counsel of the Secretariat of the ICC International Court of Arbitration (Paris, France). Admitted to practice in Chile, she has an LL.M. and was a recipient of the Parker School Recognition for Achievement in International and Comparative Law - Columbia University School of Law.
Nelson Eizirik is a lawyer practicing in Rio de Janeiro and São Paulo. He is a Professor of Corporate Law at the Rio de Janeiro State Magistrate School. He is the author of several books on Brazilian Corporate Law.
Pedro Baptista Martins was one of the three members of the committee that drafted the Brazilian Arbitration Law. He is a lawyer practicing in Rio de Janeiro and São Paulo and Professor of Arbitration at the Rio de Janeiro State Magistrate School. He is the author of several books and articles on arbitration.
Renato S. Grion is an assistant counsel of the Secretariat of the ICC International Court of Arbitration (Paris, France). Admitted to practice in Brazil, he has an LL.M. from Northwestern University School of Law, a graduate certificate in Business Administration from the Kellogg School of Management and a DESS juriste d’affaires international, with honors from University of Paris V.
Originally from Arbitration Law of Brazil: Practice and Procedure
7.1 PROCEDURAL RULES
Arbitration is much more flexible than a judicial process, and there are no compulsory procedural rules to be followed by the parties,1 provided that the procedure complies with certain mandatory principles2 (i.e., full defense and proper response, equal treatment of the parties, arbitrators’ impartiality and free convincement).3
Therefore, parties have certain freedom to set forth in the arbitration agreement the procedure that will apply. The parties may either: (i) choose the arbitration rules of an institution or entity such as UNCITRAL; or (ii) spell out in the arbitration agreement the applicable arbitration rules; or even (iii) assign to the arbitrators the power to define the procedure. The first alternative is usually the best choice, since the arbitration rules of renowned institutions have been continuously tested in practice and are less likely to give rise to disputes or doubts.
It is usual to choose a set of arbitration rules, but to foresee in the arbitration agreement certain changes thereto to better suit the intentions of the parties. This is a possible alternative, but the parties should be careful to verify in advance whether the arbitration rules allow the intended amendment, so as not to create a pathologic clause. To quote an example, it may not be possible to conduct an ICC arbitration if the institution does not have a body similar to the International Court of Arbitration to perform acts such as the scrutiny of the draft award.
A similar problem may arise when the parties select the rules of a given arbitral institution, but choose another institution to manage the arbitration. It also strongly advisable that such a thorough compatibility review precedes such a choice, not to create a situation in which the competent arbitral institution is unable to perform all the procedural acts contemplated in the applicable arbitration rules.
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 (contradito).
7.2.2. Equal treatment of the parties.
7.2.3. Arbitrators’ impartiality and free convincement.
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.
7.5.5. 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-competence") and anti-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
18.104.22.168. 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. Antecipao 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.
7.17.1. 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.