Brazil - Arbitration Law and Practice in Latin America
Originally from Arbitration Law and Practice in Latin America
I. INTRODUCTION: ARBITRATION IN BRAZIL – HISTORY AND INFRASTRUCTURE
A. History and Current Legislation on Arbitration
Arbitration in Brazil has undergone a dramatic change over the last two decades. Before that, Brazil, similarly to several other Latin American jurisdictions, was known for its unfriendliness towards international arbitration, especially due to its submission to the “Calvo Doctrine”, according to which foreigners should not receive any different treatment from the given to national citizens. At that time, not even domestic arbitration was used in Brazil, particularly if the conflicts involved sovereign parties. Since 1996, however, a new arbitration-friendly legal framework has been implemented, followed by an increasing body of case law, both in line with modern arbitration laws that have been interpreted and applied in traditional jurisdictions around the world.
Scanning the landscape of developments, and also creating room for the involvement of State and State-owned companies, the current legislative and judicial attitudes towards international and domestic arbitration look extremely positive, deriving particularly from (i) the Federal Supreme Court declaring the constitutionality of the Brazilian Arbitration Law in 2001, (ii) the ratification of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards in 2002, (iii) the Superior Court of Justice assuming the role of conceding exequatur to foreign arbitration awards in 2004, (iv) the Superior Court of Justice’s expanding role as a supportive last instance reviewer for arbitration-related decisions, and (v) the regularly favourable decisions one now finds rendered by local courts throughout Brazil as a whole.