Brazil: International Arbitration

The Brazilian Arbitration Act (the “Act”) applies to all arbitral proceedings in which the arbitral award is deemed to have been issued in Brazil.  Articles 34 to 40 of the Act regulate recognition and enforcement of awards issued outside of Brazil. The Act does not make express distinction between domestic and international arbitrations, being applicable to arbitrations whose seat is in Brazil.

The Act was first enacted in 1996 and was amended in 2015, to include some provisions on corporate arbitration and arbitration involving state entities, as well as to regulate some issues such as partial awards, interruption of limitation period in arbitrations and communications between arbitral tribunals and the local courts.

Brazil is a signatory to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”). Brazil ratified the New York Convention through Legislative Decree 52/2002 and Decree 4.311 of July 23, 2002, with no reservation.

In addition to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards which was ratified in 2002, Brazil is a party to (i) the 1975 Panama Inter-American Convention on International Commercial Arbitration; (ii) the 1979 Montevideo Inter-American   Convention on extrajudicial enforcement of foreign tribunals and decisions; (iii) the 1996 Las Leñas protocol on jurisdictional cooperation between the countries members of the Mercosur market; and (iv) the 1998 International Arbitration Agreement between the countries members of the Mercosur market.

Brazil is neither a party to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, nor has Brazil ratified any free trade or investment agreements which allows foreign parties  to directly sue Brazilian state entities based on the rights of such agreements. Between 1994 and 1999, Brazil signed 14 BIT, but they had never been ratified. As from 2015, Brazil has signed several agreements to facilitate investments and cooperation with other countries, but differently from traditional BIT’s, they do not contemplate arbitration from private foreign party against Brazilian state entities.

The Act is modelled after the 1985 version of the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”).

The Arbitration Act was last amended in 2015.  There are some bills providing for punctual changes. The most relevant bill proposes the limitation of the number of arbitrators in which a given individual can act as arbitrator at the same time and the mandatory publication of arbitral awards.

Brazil has several arbitration institutions. It is worth mentioning the following ones:

• Câmara de Mediação e Arbitragem Empresarial Brasil (CAM-CCBC): largest Brazilian arbitration institution. In view of its relevance, we will use the CAM-CCBC Rules in the examples below.
• Câmara de Conciliação, Mediação e Arbitragem (CIESP/FIESP): second largest arbitration institution, hosted by the powerhouse Confederation of Industries of São Paulo.
• Câmara de Arbitragem do Mercado (CAM B3): arbitration institution from the largest Brazilian stock market, which manages the disputes between listed companies in the highest segments of corporate governance of such market.
• Câmara de Mediação e Arbitragem Empresarial Brasil (CAMARB): arbitration institution originally from Belo Horizonte, nowadays with offices in São Paulo, Rio de Janeiro, Brasília, Salvador and Recife.
• Centro Brasileiro de Mediação e Arbitragem (CBMA): largest arbitration institution from Rio de Janeiro.
• Centro de Arbitragem e Mediação Amcham (AMCHAM): arbitration institution from the renowned American Chamber of Commerce.
• Fundação Getúlio Vargas (FGV): arbitration institution from the renowned FGV university, which is the preferred venue for disputes involving electric power purchase agreements.

Yes, the Brazilian Council of National Justice (CJN) enacted a rule establishing that in every capital of Brazilian state there shall be at least one state court with jurisdiction over proceedings ancillary to arbitration or enforcement proceedings, so that such court becomes specialized in arbitration matters.

There are two types of arbitration agreements in Brazil: the arbitral clause and submission to arbitrate, the former being an agreement to arbitrate before the dispute and the latter an agreement to arbitrate after the dispute arises. The Act defines arbitration clause as “the agreement whereby contracting parties oblige themselves to settle through arbitration all disputes that may arise relating to the contract.” (Article 4).

Brazilian courts have already decided that a submission to arbitrate after the dispute arises is not required, if the contract has an arbitration clause with sufficient elements enabling the institution of the arbitration. In the event the arbitration clause is so simple that it does not even allow the institution of the arbitration (the so-called “empty clause”), such as if no indication exists as to the applicable arbitration rules, the interest party may go to the judicial courts so that the judge fills out the gaps in the arbitration clause and decide the procedure for the arbitration (Article 7).

The Act requires that an arbitration agreement must be in writing (Article 4, paragraph 1). The highest courts have issued different decisions on the extension of such a requirements of agreement in writing. For instance, in commodities trading disputes, in which the rules of the trading institutions and/or the standard agreement provide for arbitration but the deal is closed without actual signing of an agreement with arbitration clause, the Brazilian highest courts sometimes considered the requirement of an agreement in writing satisfied and other times they did not, depending on the specifics of the case.

The principle of separability of arbitration agreement is recognized by the Act, Article 8 of which provides that “the arbitration clause is autonomous from the contract in which it is included, meaning that the nullity of the latter does not necessarily imply the nullity of the arbitration clause.” (Article 8).

The particular subject has not been specifically addressed in recent jurisprudence.

Not in the Act, but the issue has been addressed in the rules of arbitral institutions.

Under the CAM-CCBC Rules, in arbitration cases with multiple parties as claimants and/or respondents, if there is no consensus regarding the appointment of an arbitrator by one of the multiple parties on one side, the President of the CAM-CCBC shall appoint all the members of the Arbitral Tribunal, designating one of them to act as President (Article 4.16).

N/A

According to Article 1 the Act, only “patrimonial disposable rights” can be subject to arbitration. Given the broad legal concept, there had been controversies in certain areas.

On consumers’ relationships, the Brazilian Superior Court of Justice (the highest court for non-constitutional matters) has decided that the agreement to arbitrate is enforceable against to the consumer only if he or she brings the arbitration or otherwise expressly consented with the arbitration after the dispute arises.

On labor relationships, the arbitration agreement is only enforceable against the employee if he expressly agreed and his/her waive is above a certain threshold (equivalent on October 15, 2021 to USD 2,000), per Art. 5-7-A of the Labor Code.

The Brazilian Corporate Law allows arbitration on corporate matters (Article 109, third paragraph).

The 2015 reform of the Brazilian Arbitration Law has expressly authorized arbitration on against state-owned companies (Article 1, first paragraph).

No.

According to the Act, in case of arbitration, the parties may freely choose the rules of law applicable provided that their choice does not violate good morals and public policy (Article 2, first paragraph). The parties may also agree that the arbitration shall be conducted under general principles of law, customs, usages and international rules of trade (Article 2, second paragraph).

This is a departure from the principle under the Introductory Law to the Brazilian Legal System, according to which the law of the place of signature shall apply to contracts (Article 9, caput), being the case legal resistant to validate choice of law provisions. In case of contracts signed in different places, the law of the domicile of the offeror shall apply (Article 9, second paragraph). Such a rule only governs contracts whose disputes are subject to local courts. However, as to a contract subject to arbitration but without an express choice of law is silent, it is possible that a Brazilian arbitrator in a domestic arbitration will apply it.

The Act expressly allows the selection of international trade principles as substantive law (Article 2, second paragraph), so there is no prohibition per se to the choice of UNIDROIT principles or other transnational principle as the substantive law applicable to an arbitration

According to Article 13 of the Act, “any legally capable individual, trusted by the parties, may act as an arbitrator.”

The only requirement in the Act is that the number of arbitrators must be odd (Article 13, first paragraph). In case of an even number of arbitrators, the existing arbitrators are allowed to nominate an additional arbitrator, to make the number odd (Article 13, second paragraph).

Only in case of an “empty arbitral clause” (please see answer to question 8 above), that is to say, if the arbitral clause does not provide the elements for institution of the arbitral proceedings. In this event, any party may go to the local courts to fill out the gaps and decide the elements to allow institution of the arbitral award (Article 7 of the Act).

The appointment of an arbitrator may be challenged where (i) there is any circumstance likely to give rise to justifiable doubts as to the arbitrator’s impartiality, independence, availability ; or compliance with the duty of discretion or (ii) the arbitrator does not possess qualifications the parties agreed.

A party wishing to raise issues as to the jurisdiction, suspicion or impediment of an arbitrator or arbitrators, or as to the nullity, invalidity or ineffectiveness of the arbitration agreement, shall do so at the first possible opportunity after the commencement of the arbitral proceedings. (Article 20 of the Act). The procedure for challenge of the arbitrator is usually established in the applicable arbitration rules.

Under CAM-CCBC Rules,  of a party raises an issue related to the independence, impartiality or any material issue in regard to an arbitrator, the arbitrator involved will have ten (10) days to submit comments, after which the parties will have ten (10) days to present any challenge (Article 4.8). The parties can challenge the arbitrators for lack of independence or impartiality or for other justified reason within fifteen (15) days from awareness of the fact. The challenge will be decided by a Special Committee composed of three (3) members of the List of Arbitrators appointed by the President of the CAM-CCBC (Article 5.4).

There is no court review of the decision of the challenge during the arbitration. Nonetheless, the party can file a lawsuit to annul the arbitration award based on the grounds to challenge the arbitrator. Local courts tend to deny request to annul the arbitration award, if the party should have known about the ground for challenge but failed to timely raise it during the arbitration.

Independence and impartiality of arbitrators is one of the hottest topics in Brazil, especially as ground to set aside arbitral awards. As it will be discussed below, there has been many cases dealing with the issue.

In 2017, the Ometto v Abengoa case (SEC 9.412/US), the Brazilian Superior Court of Justice declined the recognition and enforcement of an award issued in the United States based on a violation of Brazil’s public policy because an arbitrator failed to disclose a facts on the relationship between his firm and one of the parties, although the same facts were not considered as grounds to set aside the award in a lawsuit in the U.S. in this regard. This shows that the Brazilian courts tend to be stricter on independence and impartiality than other jurisdictions.

The São Paulo State Court of Appeals (Apelação Cível 1056400-47.2019.8.26.0100) annulled an arbitral award, by request of the claimant (an insurance company), on the grounds that the presiding arbitrator violated his duty of disclosure. During the course of the arbitration, the respondent appointed the presiding arbitrator as co-arbitrator in another arbitration, related to a similar contract involving another insurance company. However, the arbitrator only disclosed such a fact after the issuance of the arbitral award. The local Court highlighted that the disclosure of relevant events by an arbitrator directly influences whether the parties will be able to trust him/her and, therefore, whether he/she may act as an in that position. It further stressed that if any relevant event arises after the appointment, the arbitrator shall disclose it to the parties at the earliest opportunity. According to the Court, such a duty cannot be narrowly constructed. As such, any personal or professional information which may raise doubt as to the impartiality of an arbitrator shall be immediately informed to the parties.

The Act does not address the issue of truncated tribunals. If a new arbitrator is appointed, the reconstituted arbitral tribunal must decide, after consultation with the parties, whether and to what extent to repeat a proceeding already taken beforehand (Article 22, fifth paragraph of the Act).

The arbitrators, in the exercise of their functions or as a result thereof, are subject to the same criminal liability applicable to state employees. The Act does not contemplate civil liability. Commentators usually sustain that arbitrators are immune from liability for mistake in the decisions (error in iudicando), but not for procedural mistakes (error in procedendo).

Under Article 20, caput and second paragraph, as well as Article 8, sole paragraph of the Act, the party challenging the jurisdiction shall submit the issue directly to the arbitration tribunal. If the arbitration tribunal decides that it has jurisdiction, the arbitration shall proceed, without prejudice to the losing party’s right to request the annulment of the arbitration award, once the arbitral award is issued.

If the arbitral tribunal rules on its own jurisdiction as part of the final award, a party may challenge the award by initiating an annulment lawsuit on jurisdictional grounds.

Nonetheless, there were isolated decision with a more flexible approach to the competence-competence. The most relevant precedent in this sense was a decision from the Superior Court of Justice that allowed a local court lawsuit to continue notwithstanding the existence of an arbitral clause in a standard agreement. According to article 4, paragraph second of the Act, for such a clause to be enforceable, it should have been in “bold” type and subject to specific signature. The Superior Court of Justice understood that the failure to comply with such a requirement could have been prima facie verified, so that the local court could declare the arbitration clause non-enforceable, without awaiting the decision of the arbitration tribunal (STJ, Special Appeal Nº 1.602.076-SP).

If a party commences an action in Brazil in breach of an arbitration agreement and the defendant in the action timely raises an objection, the Code of Civil Procedure requires local courts to dismiss the lawsuit (Article 485, VII, of the Brazilian Code of Civil Procedure).

The Act does not regulate the commencement of the arbitral proceedings, which depends on the applicable arbitration rules. For instance, CAM-CCBC Rules provide that the arbitral proceedings there commences with a notice from claimant to the president of CAM-CCBC and the other parties, with certain formal requirements (Article 4.1).

Under the Act the arbitration is only formally instituted when the appointment is accepted by the sole arbitrator or by the arbitrators, if more than one (Article 19). The limitation period is interrupted when the arbitration is instituted, but the effects of such interruption retroacts to the date of filing of the notice of arbitration (Article 19, second paragraph).

The principle of state immunity is recognized under Brazilian case law, legislation, and statutes (Convention on Diplomatic Relations, incorporated into Brazilian law by the Decree No. 56,435; Vienna Convention on Consular Relations, incorporated into Brazilian law by the Decree No. 61,078; and Bustamante Code 1928 (incorporated into Brazilian domestic law by Decree No. 18,871), but with a restrictive approach of immunity, in which a state or an entity owned or controlled by a state can only invoke immunity in non-commercial acts (ius imperium) (STJ, Special Court. Ordinary Appeal 1997/0088768-5/RO, reporting justice Garcia Vieira, j. on March 23, 1999). However, there is no arbitration exception to immunity in Brazil, since foreign sovereign States and connected persons are not entitled to assert immunity in commercial acts (jure gestionis).

Failure of a party to participate in the arbitration shall not prevent the arbitrator to issue the arbitral award (Article 22, third paragraph of the Act). If a party fails, without just cause, to comply with a request to render a personal deposition, the arbitrator or the arbitral tribunal shall give due consideration to such behavior when issuing the award. If a witness, under the same conditions, is absent, the arbitrator or the President of the arbitral tribunal may request the local court to compel the appearance of the defaulting witness (Article 22, second paragraph of the Act). This means that the court cannot compel participation of a party, but this shall not prevent the continuance of the arbitral proceedings leading to the issuance of the final arbitral award.

The Act does not specify whether third parties can voluntarily join arbitration proceedings, which will depend on the applicable arbitration rules.

There is no provision in the Act empowering courts to compel third parties to participate in arbitration. The other way round has happened some time, that is to say, the local court setting aside an arbitral award due to the inclusion of a third party that the court deemed not to be bound by the arbitration agreement. Moreover, there are some instances in which the arbitration tribunal or the local court extended the effects of an arbitration clause to a non-signatory in exceptional cases. For example, in the Trelleborg v Anel Empreendimentos case (São Paulo State Court of Appeals, Appeal No. 267,450,4/6-00, reporting justice Constança Gonzaga, j. on May 24, 2006), the local court found that the parent company’s “active participation”, “clear involvement” and “interest in the outcome” of a given contract justified the extension to it of the arbitration agreement signed by a Brazilian subsidiary.

Before the institution of the arbitration, the parties can go to local courts for any type of injunctive or urgent relief (Article 22-A of the Act). If the relief is granted and the parties are subject to an agreement to arbitrate, the arbitration shall be commenced within 30 days from the granting of such relief or it will lose its effects (Article 22-A, sole paragraph, of the Act). Once the arbitration is instituted, meaning that all arbitrators are vested in the office, (a) the arbitrators can review or revoke injunctive or urgent relieves the local court granted (Article 22-B of the Act) and (b) any new request for injunctive or urgent relief shall be solely requested directly to the arbitrators (Article 22-B, sole paragraph, of the Act).

The requirements for injunctive or urgent relieves are (i) fumus boni juris, meaning strong legal grounds for the relief and (ii) periculum in mora, meaning risk of irreparable harm if the relief is not granted. Moreover, it is advisable that the relief does not trigger reverse “periculum in mora”, ie, risk of irreparable harm to the other party

No. Under Article 20, caput and second paragraph, as well as Article 8, sole paragraph of the Act, the party challenging the jurisdiction of the arbitration shall submit the issue directly to the arbitration tribunal. If the arbitration tribunal decides to have jurisdiction, the arbitration shall proceed, without prejudice to the losing party’s right to request the annulment of the arbitration award, once it is issued. Nonetheless, there were isolated decision granting anti-arbitration injunctions, in exceptional cases, but those are minority positions.

Arbitral tribunals have the power to take the parties’ deposition, hear witnesses, determine the production of expert evidence and other evidence deemed necessary, either sua sponte or at a party’s request (Article 22 of the Act).

Either sua sponte or at a party’s request, arbitral tribunals may issue an order, through an instrument named “arbitral letter”, to ask for court assistance for production of evidence (Article 22-B of the Act). For instance, the tribunal tribunals may issue an arbitral letter to the local court to compel a witness to appear at the hearing or to order seizure documents in the possession of one of the parties. As long as the arbitral tribunal proves that it has jurisdiction over the case, the local court is required to comply with the command of the arbitral letter.

Members of the Brazilian Bar and foreign attorneys registered to practice foreign law in Brazil on a habitual basis are subject to the ethical rules as required under the Attorneys-At-Law Act whenever they are acting in Brazil, regardless of whether they are doing so in advisory work, local court litigation or arbitration.

The Arbitration Act does not expressly require confidentiality in arbitral proceedings.  Moreover, information of arbitrations with state entities shall be publicly available  (article 2, paragraph 3rd of the Arbitration Act).

In arbitral proceedings conducted under the CAM-CCBC Rules, the arbitration proceedings are confidential, except for the situations provided for in statute or by express agreement of the parties or in light of the need to protect the right of a party involved in the arbitration. For the purposes of research and statistical surveys, the CAM-CCBC reserves the right to publish excerpts from the award, without mentioning the parties or allowing their identification. Members of the CAM-CCBC, the arbitrators, the experts, the parties and others who participate are prohibited from disclosing any information to which they have had access as a result of their role or participation in the arbitration.

There have been no recent decisions that specifically dealt with the use of evidence acquired illegally (e.g., ‘hacked evidence’) in arbitration proceedings.

According to the Arbitration Act, the arbitral award shall decide on the parties’ responsibility regarding the costs and expenses of the arbitration, as well as on any amounts resulting from bad faith litigation, as the case may be, with due respect to the provisions of the arbitration agreement in this regard, if any (Article 27).

For proceedings conducted under the CAM-CCBC Rules, the award will also contain, where appropriate, the parties’ liability for the administrative costs, arbitrators’ fees, expenses, and attorneys’ fees, as well as the respective apportionment, also observing that which was agreed by the parties (Article 10.4.1).

Yes, there is no prohibition of interest. In fact, under Brazilian law, in case of default, the creditor is entitled to interest and inflation (Art. 389 and 395 of the Civil Code). Pre-award interested is normally counted from the date of default or the filing of the arbitration, depending on the case. It is usual for arbitral awards to provide for post-award interest.

A party seeking recognition and enforcement of an arbitral award must file an application with a duly authenticated copy of the arbitral award and the arbitration agreement, together with a sworn translation of the same (Article 37 of the Act).

With respect to foreign arbitral awards subject to the New York Convention, courts recognize and enforce such award in accordance with the New York Convention.

As for foreign arbitral awards which are not subject to the New York Convention, courts apply Article 38 and 39 of the Act as to recognition and enforcement procedure, which basically reproduce the grounds of the New York Convention.

If the requirements for recognition are satisfied, the Superior Court of Justice shall issue its enforcement judgment without considering the merits of the judgment or award.

On motivation of the award, in the case Newedge USA LLC v Manoel Fernando Garcia, respondent objected recognition of the award in Brazil because the reasoning was quite short. Nonetheless, STJ granted the recognition, ruling that “the reasoning adopted by the arbitration awards follows the standards in force in the country of the seat. The fact that it is concise cannot prevent recognition” (STJ, Special Court. SEC 5692/EX, reporting justice Ari Pargendler, j. on August 20, 2014).

The actual time span for the recognition and enforcement of an award varies greatly, depending on issues raised and the extent to which they are challenged.  According to the statistics of the Counsel for National Justice, it takes an average between 12 and 24 months for the Superior Court of Justice to recognize an arbitral award.

Recognition proceeding shall be requested before the Superior Court of Justice, which is the highest court for non-constitutional matters. After recognition is granted, the interested party may request enforcement of a foreign arbitral award before a federal local court proceeds in the same manner as other actions filed before such court.

Yes.

Recognition or enforcement of foreign awards may not be refused unless there is proof of (a) incapacity or invalid arbitration agreement; (b) lack of proper notice or opportunity to defend; (c) award beyond the scope of the submission to arbitration; (d) defect with arbitral authority or procedure; (e) the award not binding or set aside (Article 38 of the Act; Article V(1) of the New York Convention). Recognition and enforcement may also be refused if the subject matter of the arbitration is not capable of settlement by arbitration under the laws of Korea or if the recognition or enforcement of the award would be contrary to Brazil’s public policy (Article 39 of the Act; Article V(2) of the New York Convention).

Grounds for annulment of domestic awards are: (i) if the arbitration agreement is null and void; (ii) if the arbitrator could not have been in that position; (iii) if the arbitral award has formal defects; (iv) if the arbitral award has exceeded the limits of the arbitration agreement; (v) if the arbitrator acted with unfaithfulness, extortion or corruption; (vi) if the arbitral award is issued after the time limit established in the arbitration agreement, provided that the interested party had notified the arbitrators of the failure to meet the deadline, in which case the arbitrators have 10 additional days to issue the arbitral award; and (vii) if the arbitral proceedings failed to comply with the principles of proper defense, equal treatment of the parties, independence and impartiality of arbitrators and free convincement of the arbitrators (Article 32 of the Act).

The Act does not speak to any limit on available remedies.  However, on foreign awards, courts are prohibited from recognizing a final judgment or award which would considerably contravene the public order (Article V(2) of the New York Convention).

An arbitral award has the same effect on the parties as a final and conclusive judgment of a court but without a right of appeal. The only remedy is a local court annulment lawsuit against the arbitration award(Articles 18 of the Arbitration Act).  The grounds for an annulment lawsuit are limited to (i) if the arbitration agreement is null and void; (ii) if the arbitrator could not have been in that position; (iii) if the arbitral award has formal defects; (iv) if the arbitral award has exceeded the limits of the arbitration agreement; (v) if the arbitrator acted with unfaithfulness, extortion or corruption; (vi) if the arbitral award is issued after the time limit established in the arbitration agreement, provided that the interested party had notified the arbitrators of the failure to meet the deadline, in which case the arbitrators have 10 additional days to issue the arbitral award; and (vii) if the arbitral proceedings failed to comply with the principles of proper defense, equal treatment of the parties, independence and impartiality of arbitrators and free convincement of the arbitrators (Article 32 of the Act).

Defendant is allowed to raise the grounds for annulment of arbitral award in its answer to any local court from plaintiff seeking to enforce such arbitral award, as long as defendant file such defense within 90 days from the receipt of the arbitral award or the receipt of the decision of any request for clarification of the arbitral award.

After the passage of such 90-day period, defendant loses the right to challenge the arbitral award on such grounds.

The Arbitration Act does not provide for waiver of any rights of appeal or challenge to an arbitral award by agreement in advance of dispute and there is no highest court precedent on this issue to date.

There is no statute or court law regarding whether a state or state entity may invoke state immunity in connection with the enforcement of arbitral award.

In principle, only parties to an arbitration agreement are bound by the arbitral award. The Act is silent as to what circumstances might bind third parties or non-signatories to an arbitral award.

However, according to Brazilian case law, non-signatories or third parties might be bound by an arbitration award even if they have not signed the arbitration agreement, provided it is proven that the non-signature party directly participated in the contractual relationship, and, therefore, consented to the arbitration agreement (Trelleborg v Anel Empreendimentos case, TJ-SP, Appeal No. 267,450,4/6-00, reporting justice Constança Gonzaga, j. on May 24, 2006; Fischer v Pro Propaganda case, TJ-SP, Interlocutory Appeal No. 2075342-95,2014,8,26,0000, reporting justice Manoel Justino Bezerra Filho, j. on September 23, 2014). In additional, third party might also be bound by the arbitral award in cases in which, using its power of control to execute a contract, determines the inclusion of an arbitration clause, without being formally part of the contract, with the manifest purpose of harming the other contracting party, evidenced, for example, by acts of dissipation of assets (Serpal v. Continental do Brasil case, STJ, Special Appeal No. 1698730/SP reporting justice Marco Aurélio Bellizze, j. on May 8, 2018).

There has not been any court decision from a highest court considering third party funding in arbitration.

The Arbitration Act does not provide for conservatory or interim relief by emergency arbitrators.  However, many arbitral institutions do contemplate emergency arbitrator relief.

For instance, according to Resolution 44 of CAM-CCBC, an emergency arbitrator is available to parties subject to arbitration agreements entered into after November 25, 2020 on an “opt-out” basis (i.e, applicable unless the parties jointly agree otherwise). For arbitration agreements entered into before November 25, 2020, the emergency arbitrator is an “opt-in” (the parties should jointly choose it).

The request shall be addressed to the president of CAM-CCBC, who shall assess whether such procedure is applicable and, if it is, shall appoint the emergency arbitrator, who, within 2 days, shall present a statement of independence and availability. Then the parties will have 2 days to challenge the emergency arbitrator, if it is the case.

In principle, the emergency arbitrator will have 15 days to issue the decision, counted from the presentation of a statement of independence. The emergency arbitrator could also issue a provisory timeline with a different timeline. The emergency arbitrator will have wide discretion to conduct the procedure, provided that the principles of full defense and equal treatment of the parties are observed. A hearing could be conducted through telephone or video-conference.

Yes. For instance, CAM-CCBC Rules enacted Resolution 46 for expedited procedure based on arbitral agreements entered into before January, 2021 and whose value at stake is lower than R$3 Million (equivalent to US$600,00 on October 15, 2021).

Unless otherwise agreed by the parties, the expedited procedure will be conducted by a sole arbitrator, who could limit the number and size of submissions, as well as to decide on documents only. Hearings will be preferably held remotely.

The arbitral award shall be issued within 10 (ten) months, counted from the signature of the terms of reference until closing of the proceeding. The arbitral award shall be issued within 30 days from closing of the proceedings, extendable for additional 30 days.

Firms and arbitration practitioners have taken steps to promote diversity in the arbitration field.  Most Brazilian arbitral institutions are signatories to the Equal Representation in Arbitration Pledge.  In recent years, firms have organized “Women in Arbitration” panel discussions and networking events in Brazil.

There is no precedent of an award set aside at the seat which was enforced in Brazil. Quite the contrary, in the Sentença Estrangeira Contestada 5782/AR, the Superior Court of Justice denied recognition of an arbitral award annulled in the seat.

Corruption is a ground to annul arbitration awards. Nonetheless, there are few cases annulled due to corruption.

In civil litigation lawsuits, the local courts may consider as proof of corruption (i) oral evidence; (ii) documental evidence; (iii) technical evidence; and (iv) the evidences produced in the criminal lawsuit, even before the criminal decision becomes res judicata (Interlocutory Appeal on the Special Appeal No. 1605192/MG, reporting justice Francisco Falcão, j. on April 09, 2019). The burden of proving corruption is on the plaintiff (STJ, Interlocutory Appeal on the Special Appeal No. 835100/MS, reporting justice Benedito Gonçalves, j. on April 27, 2020).

No recent pending or published court decision in Brazil has considered the judgment of the Court of Justice of the European Union in Slovak Republic v Achmea BV (Case C-284/16).

No recent pending or published court decision in Brazil has considered the General Court of the European Union’s decision Micula & Ors (Joined Cases T-624/15, T-694/15 and T-694.15), ECLI:EU:T:2019:423, dated 18 June 2019.

Almost all Brazilian arbitral institutions allowed online filing of submission and exhibits, authorized communications through e-mail and enabled hearings through videoconference in response to the COVID-19 pandemic. In general, the COVID-19 pandemic brought no disruption in the conduction of arbitral proceedings.

Yes. Almost all Brazilian large arbitral institutions have implemented systems to enable online filing of submissions, communications through e-mail and virtual hearings.

The declaration of bankruptcy or the granting of judicial recuperation automatically stays certain types of lawsuits, such as execution lawsuits, for a period of 180 days, renewable on an exceptional basis for additional 180 days. The declaration of bankruptcy or the granting of judicial recuperation does not suspend arbitral proceedings, nor justifies the party bankrupt or under recuperation to deny enforceability of the arbitration clause (art. 6, paragraph 9, of Brazilian Bankruptcy Law).

This provision is in line with the Brazilian case law, which usually denies requests to suspend or avoid arbitral proceedings against parties bankrupt or under recuperation (eg, please see the decision of the Superior Court of Justice in REsp 1.355.831 – SP, 3rd Chamber, reporting justice Minª. Nancy Andrighi, judge on March 19, 2013).

Brazil is not a Contracting Party to the Energy Charter Treaty.

Not in the area of arbitration.

Brazil is part of the Commission of the Working Group III and has been participating in the discussions of the concerns regarding ISDS. According to the submission presented by the Brazilian Government to the Working Group III on March 28, 2019, Brazil suggests that the ISDS reform follow the Dispute Prevention under the Brazilian Cooperation and Facilitation Agreement (CFIA) model, in which a permanent channel for dialogue (Ombudsperson) is created, acting as a facilitator of the relationship between the investors and the host country government, and requires prior consultation in the Joint Committee, composed of government representatives of the parties, before initiating arbitration.