Arbitrators - Chapter 06 - Arbitration Law of Brazil: Practice and Procedure - Second Edition
Originally from Arbitration Law of Brazil: Practice and Procedure - Second Edition
6.1 REQUIREMENTS THAT SHOULD BE MET IN ORDER
TO SERVE AS ARBITRATOR
The arbitrator may be any person with full legal capacity,1 impartial
and deserving the trust of the parties.2 It is not required that the arbitrator
be a lawyer licensed to practice in Brazil, although it might be advisable
in certain instances, especially when the dispute mainly concerns legal
Brazilian law does not expressly prohibit legal entities to be
appointed as arbitrators, but the some authors hold that only individuals
may serve as arbitrators.3 This is because the function of arbitrator is
analogous to the judge and entails personal civil and criminal
responsibility, which can only apply to natural persons.
In this regard, it is worth distinguishing, in institutional arbitrations,
the role of the arbitrator from that of the arbitration court. The latter
organizes the proceeding, sets forth the procedural rules and provides the
operational structure for the arbitration. Nonetheless, only the arbitrator
can appreciate the subject matter of the arbitration, judge the case and
issue the award.
In other words, the arbitration court’s role is limited to the
appointment and/or confirmation the arbitrators, to the extent necessary,
and administration and supervision of the arbitral proceeding, without
decision-making powers as to the merits of the case.
6.2 NUMBER OF ARBITRATORS
Brazilian law does not establish a default number of arbitrators. It
only stipulates that their number be odd.4 If an even number of arbitrators
is appointed, those arbitrators must jointly nominate another member of
the panel. Should the appointed arbitrators not agree on who will be the
additional arbitrator, any of the parties to the arbitration may go to court
and request judicial nomination, following the procedure explained in
Section 5.12.3 supra.
The number of arbitrators usually varies from one to three.
Experience shows that having more than three arbitrators normally
makes the decision process too complex and expensive, and therefore it
should be avoided.
In the absence of an express provision in the arbitration agreement
regarding the number of arbitrators, most arbitration institutions tend to
appoint a sole arbitrator, unless, in view of the case’s circumstances, a
three-member tribunal seems more appropriate.5
The choice between one and three arbitrators depends on the
characteristics of the arbitration. For simpler disputes, having just one
arbitrator may work well and be more efficient, since it reduces the fees
and avoids coordination problems. On the other hand, for more complex
controversies, it is generally recommendable to submit the case to a
three-member panel, to have several experienced experts analyzing the
case and not to concentrate the decision in a single individual.
6.3 CHOOSING THE ARBITRATORS
The choice of arbitrators may be the single most important decision
of the arbitral proceeding. The proper conduct of the arbitration and the
quality of the decision will largely depend on the appointment of strong
and knowledgeable arbitrators suitable for the task.
Among the main characteristics to look for in an arbitrator, the
following can be mentioned: (i) knowledge of the subject matter,