Brazil: International Arbitration

This country-specific Q&A provides an overview of International Arbitration laws and regulations applicable in Brazil.

  1. What legislation applies to arbitration in your country? Are there any mandatory laws?

  2. Is your country a signatory to the New York Convention? Are there any reservations to the general obligations of the Convention?

  3. What other arbitration-related treaties and conventions is your country a party to?

  4. Is the law governing international arbitration in your country based on the UNCITRAL Model Law? Are there significant differences between the two?

  5. Are there any impending plans to reform the arbitration laws in your country?

  6. What arbitral institutions (if any) exist in your country? When were their rules last amended? Are any amendments being considered?

  7. Is there a specialist arbitration court in your country?

  8. What are the validity requirements for an arbitration agreement under the laws of your country?

  9. Are arbitration clauses considered separable from the main contract?

  10. Do the courts of your country apply a validation principle under which an arbitration agreement should be considered valid and enforceable if it would be so considered under at least one of the national laws potentially applicable to it?

  11. Is there anything particular to note in your jurisdiction with regard to multi-party or multi-contract arbitration?

  12. In what instances can third parties or non-signatories be bound by an arbitration agreement? Are there any recent court decisions on these issues?

  13. Are any types of dispute considered non-arbitrable? Has there been any evolution in this regard in recent years?

  14. How is the law applicable to the substance determined? Is there a specific set of choice of law rules in your country?

  15. Have the courts in your country applied the UNIDROIT or any other transnational principles as the substantive law? If so, in what circumstances have such principles been applied?

  16. In your country, are there any restrictions in the appointment of arbitrators?

  17. Are there any default requirements as to the selection of a tribunal?

  18. Can the local courts intervene in the selection of arbitrators? If so, how?

  19. Can the appointment of an arbitrator be challenged? What are the grounds for such challenge? What is the procedure for such challenge?

  20. Have there been any recent developments concerning the duty of independence and impartiality of the arbitrators

  21. What happens in the case of a truncated tribunal? Is the tribunal able to continue with the proceedings?

  22. Are arbitrators immune from liability?

  23. Is the principle of competence-competence recognized in your country?

  24. What is the approach of local courts towards a party commencing litigation in apparent breach of an arbitration agreement?

  25. How are arbitral proceedings commenced in your country? Are there any key provisions under the arbitration laws relating to limitation periods or time bars of which the parties should be aware?

  26. In what circumstances is it possible for a state or state entity to invoke state immunity in connection with the commencement of arbitration proceedings?

  27. What happens when a respondent fails to participate in the arbitration? Can the local courts compel participation?

  28. Can third parties voluntarily join arbitration proceedings? If all parties agree to the intervention, is the tribunal bound by this agreement? If all parties do not agree to the intervention, can the tribunal allow for it?

  29. Can local courts order third parties to participate in arbitration proceedings in your country?

  30. What interim measures are available? Will local courts issue interim measures pending the constitution of the tribunal?

  31. Are anti-suit and/or anti-arbitration injunctions available and enforceable in your country?

  32. Are there particular rules governing evidentiary matters in arbitration? Will the local courts in your jurisdiction play any role in the obtaining of evidence? Can local courts compel witnesses to participate in arbitration proceedings?

  33. What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your country?

  34. In your country, are there any rules with respect to the confidentiality of arbitration proceedings?

  35. How are the costs of arbitration proceedings estimated and allocated?

  36. Can pre- and post-award interest be included on the principal claim and costs incurred?

  37. What legal requirements are there in your country for the recognition and enforcement of an award? Is there a requirement that the award be reasoned, i.e. substantiated and motivated?

  38. What is the estimated timeframe for the recognition and enforcement of an award? May a party bring a motion for the recognition and enforcement of an award on an ex parte basis?

  39. Does the arbitration law of your country provide a different standard of review for recognition and enforcement of a foreign award compared with a domestic award?

  40. Does the law impose limits on the available remedies? Are some remedies not enforceable by the local courts

  41. Can arbitration awards be appealed or challenged in local courts? What are the grounds and procedure?

  42. Can the parties waive any rights of appeal or challenge to an award by agreement before the dispute arises (such as in the arbitration clause)?

  43. To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

  44. In what instances can third parties or non-signatories be bound by an award? To what extent might a third party challenge the recognition of an award?

  45. Have courts in your jurisdiction considered third party funding in connection with arbitration proceedings recently?

  46. Is emergency arbitrator relief available in your country? Is this frequently used?

  47. Are there arbitral laws or arbitration institutional rules in your country providing for simplified or expedited procedures for claims under a certain value? Are they often used?

  48. Have measures been taken by arbitral institutions in your country to promote transparency in arbitration?

  49. Is diversity in the choice of arbitrators and counsel (e.g. gender, age, origin) actively promoted in your country? If so, how?

  50. Have there been any recent court decisions in your country considering the setting aside of an award that has been enforced in another jurisdiction or vice versa?

  51. Have there been any recent court decisions in your country considering the issue of corruption? What standard do local courts apply for proving of corruption? Which party bears the burden of proving corruption?

  52. Have there been any recent court decisions in your country considering the definition and application of “public policy” in the context of enforcing or setting aside an arbitral award?

  53. Have there been any recent court decisions in your country considering the judgment of the Court of Justice of the European Union in Slovak Republic v Achmea BV (Case C-284/16) with respect to intra-European Union bilateral investment treaties or the Energy Charter Treaty? Are there any pending decisions?

  54. Have there are been any recent decisions in your country considering 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? Are there any pending decisions?

  55. What measures, if any, have arbitral institutions in your country taken in response to the COVID-19 pandemic?

  56. In your country, does the insolvency of a party affect the enforceability of an arbitration agreement?

  57. Is your country a Contracting Party to the Energy Charter Treaty? If so, has it expressed any specific views as to the current negotiations on the modernization of the Treaty?

  58. Have there been any recent developments in your jurisdiction with regard to disputes on climate change and/or human rights?