1 The Brazilian Supreme Court (STF) and Superior Court of Justice (STJ) are the two highest courts in Brazil. In essence, the difference between the these courts is that the latter is competent to decide cases not related to constitutional matters, while the former solely decides issues pertaining to the Brazilian Federal Constitution. Prior to Constitutional Amendment no 45, of 8 December 2004 (the ‘Reform of the Judiciary’), the recognition and enforceability of a foreign arbitral award was granted by the Brazilian Supreme Court. The Amendment in effect transferred such attribution exclusively to the Superior Court of Justice. As a practical result of this transition, the Superior Court of Justice is in a better condition to respond to the number of filed requests for recognition (or ‘homologation’), as it is composed of 33 justices, whereas the Supreme Court only 11 justices.
2 This case relates to a dispute between two private companies, in which the enforcement of a foreign award issued in Spain was sought in Brazil. The conflict arose out of a disagreement with respect to the terms of a commercial representation contract between the representative (Spanish party) and its principal (Brazilian party). Among the provisions in the commercial contract, the parties had agreed to arbitrate disputes arising out of the contract. The Supreme Court upheld the constitutionality of arbitration agreements.
3 Interlocutory Appeal no 0062827-33.2009.8.19.0000 Petromec Inc v Nuovo Pignone SPA, Tribunal de Justiça do Estado do Rio de Janeiro (27 February 2010), available at <http://www.tjrj.jus.br>.
4 Special Appeal no 904.813/PR, Companhia Paranaense de Gás—Compagás v Consórcio Carioca—Passarelli, Superior Court of Justice (20 October 2011).
5 Established in August 2007, the CBAr has developed extensive research consisting of an in-depth analysis of every judicial decision on issues pertaining to arbitral proceedings issued in Brazil since the enactment of the Arbitration Act; see D Monteiro and G Ettore Nanni, ‘Second Stage of the Research on “Arbitration and the Judiciary” Theme Report: Validity, Efficiency and Existence of Arbitration Agreement’(2010) Academic-Scientific Institutional Partnership São Paulo Law School of Fundação Getulio Vargas (DIREITO GV) Brazilian Arbitration Committee (CBAr) Research Paper 54, available at <http://bibliotecadigital.fgv.br/dspace/bitstream/handle/10438/6576/working%20paper%2054.pdf?sequence=5>, also published in (2011) Revista Brasileira de Arbitragem (Special Edition) 1. According to the Committee’s report, São Paulo attracts approximately 30% of all arbitration-related lawsuits in Brazil.
6 Trelleborg v Anel Appeal no 267.450.4/6-00, 7th Private Chamber of São Paulo Court of Appeals (24 May 2006).
7 Brazilian Arbitration Act 1996 (BAA 1996).
8 Comércio Importação e Exportação Ltda v Renault SA Appeal no 1.117.830-0/7, 36 Civil Chamber of São Paulo, Court of Appeals (26 February 2008).
9 Motorola Industrial SP v Turner South America Ltda Civil Appeal no 494.408-4/6, São Paulo,Court of Appeals (28 June 2007).
10 Energia Sustentável do Brasil SA v SulAmerica Companhia Nacional de Seguros Interlocutory Appeal no. 0304979-49.2011.8.26.0000, Tribunal de Justiça do Estado do São Paulo (19 April 2012).
11 Companhia do Metropolitano de São Paulo (‘Metro’) v Consorcio Via Amarela Writ of Mandamus no 053.10.017261-2, São Paulo Court of Appeals (7 June 2010).
12 For instance, under the CCBC Rules of Arbitration, s 5.1:
13 The BAA 1996 allows ‘persons capable of contracting’ to ‘settle through arbitration disputes related to patrimonial rights over which they may dispose’. The act’s broad scope of arbitrability, however, excludes from the scope of arbitration issues that cannot be contracted away, such as criminal, antitrust, and patent matters.
14 In order to be valid, the arbitration agreement must be in writing and must be contained in the contract itself or in a separate document.
15 Under the new arbitration rules of the CCBC, in effect as of 2012, the presiding arbitrator is no longer required to be listed in the institution’s roster of arbitrators.
17 Brazilian Civil Procedure Code, art 267: ‘A lawsuit shall be dismissed without examination of the merits: ...VII—when parties have agreed to arbitrate the dispute’.
19 See for instance Civil Appeal no 267.450.4/6-00 Anel Empreendimentos v Trelleborg, São Paulo Court of Appeals (24 May 2006); Civil Appeal no 208.671-4/2-00 Das Luiz Mangieri v Dirceu Alves Da Silva, São Paulo Court of Appeals (23 September 2004); Interlocutory Appeal no 505.721-4/7-00 José De Souza Cintra v Cervejaria Petrópolis, São Paulo Court of Appeal (24 May 2007); Civil Appeal no 263.009-4/5-00 Air Products Gases Industriais v AGF Brazsil Seguros, São Paulo Court of Appeals (12 December 2005).
20 See Interlocutory Appeal no 7.343.768-4, 13th Chamber of Private Law of São Paulo Court of Appeals (13 June 2009).
22 Usually located in the venue in which the urgent measure is to be implemented.
23 JTP Muniz and ATP Basilio, Arbitration Law of Brazil: Practice and Procedure (Juris Publishing, 2006)127.
24 In accordance with BAA 1996, art 18: ‘An arbitrator acts as judge of fact and law and the award rendered shall not be subject to judicial review, appeal or ratification.’
25 The new BM&FBOVESPA Rules of the Market Arbitration Chamber, s 5.1:
27 Rules of Arbitration of the Brazilian Center of Mediation and Arbitration, s 11:
28 Monteiro and Nanni (n 5) 1.
30 Pursuant to BAA 1996, art 20, those wishing to make challenges to the ‘disqualification of the arbitrator or arbitrators, as well the nullity, invalidity or inefficacy of the arbitration agreement, must do so at the first opportunity, after the initiation of the arbitration’.
31 SEC 4.837/EX YPFB Andina S/A v Univen Petroquímica Ltda, STJ Reporting Justice Francisco Falcão, Special Chamber (15 August 2012).
32 Interlocutory Appeal no 0025150-66.2012.8.26.0000, Tribunal de Justica São Paulo, 12th Private Law Chamber, Reporting Judge Tasso Duarte de Mello (30 May 2012).
33 BAA 1996, art 22, s 4.
34 Brazilian Civil Procedure Code, art 355 establishes that ‘a judge may order a party to produce documents or present exhibits in its possession’. Nevertheless, in spite of the broad scope of this rule, as an important counterweight, a party will not be compelled to produce unfavourable evidence under Brazilian law, unless required by law or court order (eg by virtue of a court order to allocate the burden to produce evidence to the opposing party).
35 IBA Rules on the Taking of Evidence, art 9.
36 The Rules of Arbitration of the CCBC, art 9.5 (2012) provides as follows:
37 The FIESP Rules of Arbitration, art 8.5 establishes that the:
38 Interlocutory Appeal no 0526704.47.2010.8.26.0000 São Paulo Court of Appeals (16 March 2011).
40 Specific requirements as to the seat (Brazil) and language (Portuguese) are found in Law 11.079/2004, article 11(III) (PPP Law) and Law 9.987/1995, art 23A (Concessions Law).
42 Under BAA 1996, art 31, with reference to the parties and their successors, the arbitral award shall have the same effects as a judgment rendered by the court and, should it be condemnatory, it will constitute a valid document to commence an prosecution process.
44 BAA 1996, art 24, s 2.
45 Under BAA, art 27 ‘The arbitral award shall decide the responsibility of the parties regarding costs and expenses for the arbitration, as well as fees due to bad-faith conduct, as may be the case, following the provisions of the arbitration agreement, if any’ (emphasis added).
46 Brazilian Code of Civil Procedure, art 20. Two distinguished Brazilian authors state that:
See G Tepedino and JE Nunes Pinto, Notas sobre o ressarcimento de despesas com honorários de advogado em procedimentos arbitrais (Padma, 2008); and R Ferraz and J de Paiva Muniz, Arbitragem doméstica e internacional: estudos em homenagem ao. Prof. Theóphilo de Azeredo Santos (Forense, 2008) 194–5).
47 By contrast, an international arbitral award (issued outside the Brazilian territory) will not be vacated on these grounds. The grounds for refusal of recognition and enforcement provided in the New York Convention have been essentially reproduced in the last part of BAA 1996 (arts 38 and 39), and as such will apply for the purpose of setting aside a foreign award.
48 ‘Engineering, Procurement and Construction’, a common form of contracting arrangement within the construction industry.
49 Interlocutory Appeal no 01345527-69.2012.8.26.0000, 34th Chamber of Private Law São Paulo Court of Appeals, Reporter Cristina Zucchi (4 February 2013).
53 For instance, the CCBC Rules of Arbitration provide as follows:
54 Appeal no 0039341-36.2010.8.26.0114, 6th Chamber of Private Law, Reporter Paulo Alcides (7 March 2013).
55 See Interlocutory Appeal no 0173883-71.2012.8.26.0000, Special Chamber of Business Law, Reporter Maia Cunha (30 October 2012), here, the São Paulo Appellate Court enjoined enforcement/execution of the arbitral award because the judgment-debtor made a compelling showing that he was denied basic procedural guarantees (due process) during the arbitration proceedings.
56 Monteiro and Nanni (n 5) 1.