Originally from Arbitration Law of Brazil: Practice and Procedure - Second Edition

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ARBITRATION IN BRAZIL: CASE LAW PERSPECTIVE

Arnoldo Wald and Raquel Stein

I. INTRODUCTION

While drafting the review for this chapter it became very clear how
much the arbitration scenario has changed and expanded in Brazil in a
short span of time. The milestones of this development were: the
enactment of Law no. 9.307, of 1996 (the “Arbitration Law of 1996”);1
the recognition of the constitutionality of such law by the Supreme Court
in 2001;2 the ratification of the New York Convention on the Recognition
and Enforcement, in 2002;3 and, more recently, the enactment of Law no.
13.129, of 2015 (the “Amendment to the Arbitration Law”)4

Of these milestones, the first three took place over a decade ago and
have been analyzed by specialized doctrine, and therefore, for the purposes
of this article, we will specifically analyze the novel Amendment to the
Arbitration Law. It is important to note that this amendment initially did
not have the support of the majority of national arbitration scholars,5 since
the results in the field of arbitration had been, thus far obtained, overall
positive. Notwithstanding, Congress proceed with certain changes, which
after many years of discussion, culminated with the approval of the
changes to the Brazilian arbitration statute in 2015. Most of the text in the
Amendment to the Arbitration Law reflects what had already been
recognized by local courts and authorities, but it did bring further certainty
to important legal issues involving this method of dispute resolution.

The following key matters where addressed in the Amendment to the
Arbitration Law, and, as you will see in reading the present chapter; the
relevant court precedents had already addressed many issues:

(a) Possibility of the state and state owned companies and entities
(direct and indirect) to be parties in arbitration proceedings
(article 1, §1 and 2);
(b) Procedural rules for setting aside a domestic arbitration awards
(article 33);
(c) Provisional measures before the creation of the arbitral tribunal
(articles 22-A and B);
(d) Arbitral letter regulating the request for cooperation of the
judiciary in the execution of arbitral decisions (article 22-C); and
(e) Right of withdrawal of the dissenting shareholder from the
corporation that includes an arbitration agreement in its bylaws
(art. 136-A of Law n. 6.404 of 1976).

As a result of these legislative changes accompanied by the Brazilian
economic liberalization, globalization, and the development of
international trade, there has been a significant increase and consolidation
of international and domestic arbitrations.

An analysis of the statistics of the International Court of Arbitration
of the International Chamber of Commerce (ICC) shows that, for