I INTRODUCTION

Since the Brazilian Arbitration Act (Law No. 9,307 (BAA)) was enacted in 1996,2 Brazil has developed a safe environment for arbitration, with a modern arbitral framework that has been correctly construed and applied by local courts. Hence, the use of arbitration in the country and the amounts involved have grown markedly over the past 20 years, and are still growing.

Decisions rendered by the Brazilian courts on issues related to arbitration have shown not only a favourable stance towards arbitration, but also an increasing technical and practical knowledge of it. Most notably, the Superior Court of Justice (STJ), the highest Brazilian court for non-constitutional matters, has correctly interpreted the BAA on a consistent basis in its decisions. Although not binding, these decisions establish important general guidelines for judges in lower courts to follow.

Local arbitral institutions have also played their part in this scenario by continually improving their framework to meet users' needs. International institutions are expanding their presence in the Brazilian market; for instance, the International Chamber of Commerce (ICC) officially launched its Brazilian branch in December 2014 and, in 2017, announced the creation of its fourth overseas case management office in São Paulo in response to the ever-expanding Latin American arbitration market.

Likewise, the Brazilian arbitral community, aiming to promote the development of the institute, produced high-quality literature on the theme and organised numerous events in 2016 and in the first months of 2017.

Although the BAA has turned 20, there have been several developments in the Brazilian legal system over the past couple of years that are worth mentioning:

      • a the approval of the New Code of Civil Procedure (Law No. 13. 105/2015),3 which entered into force on 18 March 2016. Although it is a deferral statute that regulates judicial proceedings, it also contains rules related to the support of ADR mechanisms (conciliation, mediation and arbitration);
      • b the entry into force of the Bill on the reform of the BAA in July 2015 (Law No. 13.129/2015), which is ultimately aimed at strengthening the institute in Brazil and will be addressed further below;4 and
      • c in April 2014, the United Nations Convention on Contracts for the International Sale of Goods (CISG) entered into force,5 enhancing the predictability and legal certainty in terms of the applicable law to international transactions of goods.
i Brazilian arbitral legislation
Background

Arbitration is not a new concept in the Brazilian legal system. In fact, the Imperial Constitution of 1824 contained provisions on arbitration while, under the Commercial Code of 1850, arbitration was mandatory for certain types of commercial disputes.6

However, arbitration was not commonly used due to the fact that the arbitration clause was considered to be a pactum de contrahendo that, if breached, only entitled a party to claim damages. In addition, the enforcement of arbitral awards relied upon judicial confirmation - that is, a foreign award needed first to be confirmed by the court of the seat of the arbitration, and then by the Brazilian judiciary (double exequatur).

Along with the growth of the country's economy during and since the 1990s, the need for a reform of the arbitral legislation arose to provide a more attractive setting for foreign investments and international commercial trade. The enactment of the BAA in 1996 was a direct consequence thereof, and has served its purposes more than adequately ever since.7 Still, almost 20 years after the enactment of the BAA, certain provisions of the BAA were modified (and improved) by virtue of a law enacted in May 2015 (Law No.13.129/2015), which entered into force on 25 July 2015.

The BAA of 1996

The BAA is based on the following pillars: parties' autonomy, due process of law, equal treatment of the parties and the adversary principle. It also provides for the impartiality of arbitrators, their freedom of decision, the separability of the arbitration clause from the contract in which it is contained and the rule of Kompetenz-Kompetenz.

The BAA is consistent with the UNCITRAL Model Law, the New York Convention of 1958 and the Panama Convention of 1975.

The 1996 BAA is divided into seven chapters:

  • a general provisions;
  • b the arbitration agreement and its effects;
  • c the arbitrators;
  • d the arbitral proceedings;
  • e the award;
  • f recognition and enforcement of foreign arbitral awards; and
  • g final provisions.

It applies to both national and international proceedings and does not distinguish between them.

Amendments to the BAA in 2015

As mentioned above, Law No. 13.129/2015 amended certain provisions of the BAA, aiming at their refinement and at reflecting consolidated practices in Brazil. The structure of the chapters of the BAA was maintained, as were its substantial achievements, and two chapters were added: Chapter IV-A, related to interim measures, and Chapter IV-B, which deals with the ‘arbitral letter' (Article 22-C), which is a cooperation instrument between arbitral tribunals and local courts that allows for the enforcement, by the latter, of acts of the former.

Chapter I - general provisions (Articles 1 and 2)

Regarding the permitted scope of arbitration proceedings, the BAA establishes that the matters subject to arbitration are limited to those involving economic rights that are disposable by the parties. Therefore, rights such as individuals' civil status, and tax or criminal issues, are not subject to arbitration. It is also established that all persons capable of contracting may agree to submit disputes to arbitration (see Article 1).8

Under the BAA, the principle of the parties' autonomy has broad scope. Article 2 provides that parties are free to choose the substantive law applicable to the merits of the dispute, including general principles of law, customs, usages and international rules of trade, provided that they do not conflict with public policy and good morals. Where the parties have not agreed in this respect, the decision on the applicable law falls upon the arbitral tribunal.

As for the issue of arbitration involving public entities, the courts had already consolidated their understanding so as to allow the state to participate in arbitral proceedings as a party as long as the requirements for objective arbitrability are met. One of the paradigmatic decisions in that sense was rendered more than 10 years ago by the STJ. In AES Uruguaiana v. Companhia Estadual de Energia Elétrica,9 the STJ extensively stated that, when a contract entered into by a state-owned company refers to a strictly mercantile activity, the rights stemming thereof are disposable and thus can be subject to arbitration. Another paramount case was TMC v. Ministro de Estado da Ciência e Tecnologia,10 decided in 2008, in which the STJ followed the same rationale.

Although there have been several discussions among commentators in the past - particularly between scholars specialised in administrative law and those focusing on arbitration and civil procedure - such decisions, along with others, paved the way for the
inclusion of Article 1(1) in the BAA, which now expressly allows the public administration recourse to arbitration, as long as the principle of publicity is respected and the arbitration is not in equity (ex aequo et bono).

Chapter II - the arbitration agreement and its effects (Articles 3 to 12)

Articles 3 to 12 establish provisions concerning the arbitration agreement, its requirements and effects. The BAA differentiates between two types of arbitration agreement: the arbitration clause and the submission agreement.

According to Article 4 of the BAA, an arbitration clause is an agreement whereby the contracting parties undertake to settle through arbitration all disputes that may arise in connection with a contract. The BAA provides that the arbitration agreement must be in writing (Article 4.1). Aside from this general prerequisite, the BAA sets forth additional requirements when it comes to adhesion contracts: the adhering party must either start the arbitration or expressly agree to it. This provision is in line with Brazilian case law, and is particularly relevant in the context of consumer contracts. The STJ has already established that consumer matters can be resolved via arbitration. However, as per Article 4(2) of the BAA, the arbitration clause is only binding if the consumer either takes it upon itself to start arbitration or expressly agrees thereto.11 Regarding corporate disputes, Law No. 13.129/15, which amended the BAA, also amended the Brazilian corporate legislation. In corporations, the inclusion of an arbitration agreement in the company's by-laws can now be attained through a majority vote of the shareholders. The dissidents must then either abide by that decision - and, consequently, by the arbitration agreement - or exercise their right to withdrawal, being reimbursed for the amount corresponding to their shares.

Although the BAA does not require it, it is advisable that arbitration clauses related to international transactions establish:

  • a the applicable law;
  • b the number of arbitrators and the manner in which they will be appointed;
  • c the place of arbitration;
  • d the language;
  • e the applicable procedural rules;
  • f the chosen institution (in the case of institutional arbitration); and
  • g the scope of confidentiality.

The arbitration clause has two main effects, called the negative and positive effects. The negative effect repels state court jurisdiction. If one of the parties files such a suit, the other party can successfully move for dismissal based on Articles 485, VII, and 337, X of the new Code of Civil Procedure, which entered into force in March 2016.

In contrast, the positive effect is the obligation to submit a dispute to arbitration. The separability of the arbitration clause from the contract in which it is contained is one of its main consequences. Therefore, the nullity of the contract does not necessarily imply the nullity of the arbitration clause (Article 8 of the BAA).

Article 8 of the BAA, in its sole Paragraph,12 covers the rule of Kompetenz-Kompetenz, according to which the arbitrator is competent to decide, ex officio or at the parties' request, whether an arbitration agreement is existent, valid, effective and thus enforceable.

If the parties have not agreed upon an arbitration clause prior to a dispute, they may commence arbitration by executing a submission agreement: a judicial or extrajudicial agreement under which parties submit an existing dispute to arbitration proceedings conducted by one or more persons. The BAA establishes the requirements for a valid submission agreement in Article 10; in Article 11, it presents optional information that the submission agreement may contain.

Regarding the enforcement of arbitration clauses, there is no wording in the BAA according to which an originally valid arbitration clause becomes unenforceable, except for adhesion contracts. On the other hand, under Article 12, a submission agreement becomes unenforceable if any of the arbitrators indicated therein dies, refuses to act, becomes unable to act as such (and the parties have expressly declared they will not accept a substitute) or if the time limit for issuing the arbitral award expires, as long as the interested party had notified the arbitrator (or the chairperson of the arbitral tribunal), giving them 10 days' notice to render the decision.

It is worth mentioning the following BAA provisions also contained in Chapter II: arbitration clauses referring to institutional arbitrations (Article 5) and procedures for enforcing an incomplete clause (one that does not contain sufficient information for the establishment of the arbitral procedure) against a party that refuses to participate in arbitration (Articles 6 and 7).

Chapter III - the arbitrators (Articles 13 to 18)

Brazil is a civil law country, so proper knowledge of civil law systems in general, and of Brazilian law in particular, is crucial.

An arbitrator must have legal capacity and be trusted by the parties (Article 13 of the BAA). Although an arbitrator is not expressly required to have a law degree, it is highly recommended that at least one of the arbitrators has in-depth legal skills and is familiar with Brazil's juridical culture. Portuguese fluency is certainly considered an asset.

An arbitrator shall not act if he or she has any interest in the resolution of the dispute, or any relationship with the parties or with the proceedings' subject matter (Article 14). Pursuant to Article 14, Paragraph 1, arbitrators are obliged to disclose, prior to accepting their appointment, ‘any facts that may give rise to justified doubts as to their impartiality and independence'.

If arbitration agreements do not rule on the appointment of arbitrators (or indicate an arbitral institution to administer the proceedings), any of the parties may plead in court for a ruling on the matter (Article 7 (4)). In such case, Brazilian courts are entitled to appoint the arbitrator (or arbitrators), or to choose an arbitral institution to appoint him or her (or them).

According to the BAA, an arbitrator may be challenged or replaced if he or she has a legal impediment similar to those applicable to judges (contained in Articles 144 and 145 of the Code of Civil Procedure) - for example, if:

  • a one of the attorneys of the parties or one of the parties is a close relative of the arbitrator;
  • b the arbitrator is an enemy or a close friend of one of the parties;
  • c one of the parties is in debt to the arbitrator;
  • d the arbitrator is employed by one of the parties, has received gifts from them, has provided advice to the parties or has helped with the payment of costs in the arbitral proceeding; or
  • e the arbitrator has some interest in the resolution of the dispute.

As to the procedure, the challenge must be presented to the sole arbitrator or to the president of the arbitral tribunal, who will be competent to decide it (Article 15). A challenge to an arbitrator must be raised at the first opportunity that presents itself to a party after commencement of the arbitration proceedings (Article 20). If the challenge is accepted, the arbitrator will be replaced, following the rules regarding the appointment of arbitrators. If the challenge is not accepted and a party feels harmed by such decision, it can later seek the nullity of the award before the courts (Article 33). However, a party that fails to challenge an arbitrator during the arbitration may not use such argument to request the annulment of an award in the courts.

The International Bar Association (IBA) Guidelines on Conflicts of Interest may be used as a basis for challenging arbitrators.

It is important to note that both non-party-appointed arbitrators and party-appointed arbitrators have the same obligations under the BAA, as they are comparable to public officials when exercising their duties (Article 17). The arbitrators are, pursuant to Article 18, judges of fact and law, and as such they must act with impartiality, independence, competence, diligence and discretion (Article 13(6)).

Finally, under the revised BAA, the parties can no longer be bound to a list of previously selected arbitrators provided by an arbitral institution. Rather, they are free to avoid any dispositions contained within an institutional set of rules that limits their choice of arbitrators (Article 13 (4)).

Chapter IV - the arbitral proceedings (Articles 19 to 22)

According to Article 19, arbitration shall be deemed initiated when the arbitrators accept their nomination. By means of the insertion of Article 19 (2), the amended BAA establishes that the statute of limitations is interrupted by the commencement of the arbitration. The date as of which the statute of limitations is interrupted is that of the filing of the request for arbitration. This is true even in cases where the arbitration is terminated on the basis of lack of jurisdiction. Article 20 provides that once arbitration proceedings have commenced, the parties must immediately present to the arbitral tribunal any jurisdictional objections they might have. The arbitration procedure, pursuant to Article 21, must comply with the rules agreed upon by the parties in the arbitration agreement, although it is also possible for the parties to empower the arbitrators to regulate the procedure.

The mandatory provisions on procedure for domestic arbitration contained in the BAA are that the arbitrators are empowered to conduct proceedings in the manner they consider appropriate when the parties have not previously set the procedure in the arbitration agreement (Article 21). An arbitral tribunal may not deviate from provisions relating to the due process of law, and must respect the principles of equality, independence and impartiality (Article 21(2)). Regarding confidentiality, even though it is not expressly embodied in the BAA, the parties may include a confidentiality duty in their rules, as most arbitral institutions do in any event.13

Regarding the taking of evidence, the arbitrators are free to decide how to conduct the evidentiary phase (Article 22).

Arbitrators may also be somewhat influenced by the procedures they are familiar with, although the BAA states that the arbitral tribunal is free to stipulate the means by which the proceeding will be conducted.

Evidence can include documents, oral testimony, depositions and expert opinions. Domestic arbitrators usually use party-appointed experts, and the tribunal, at the request of a party or at its own initiative, may appoint its own expert to give evidence. Common law devices such as requests for documents and written statements can be presented if the parties so agree (Article 22). Indeed, written statements have been increasingly used in arbitral proceedings in Brazil.

The IBA Rules on the Taking of Evidence are also becoming increasingly popular in international arbitrations involving Brazilian parties.

Discovery as regularly used in the United States is not usual in Brazil, although there are court actions that can be filed to force disclosure of documents and allow access to physical evidence, either ancillary to an ongoing suit or in preparation for filing a suit. The main difference between the Brazilian and US methods is the fact that in the Brazilian system, a party must specify which documents and other pieces of evidence are necessary to the case. By contrast, in US practice, discovery allows requests for production of vague or unspecified documents. The Brazilian method practically makes it impossible to venture into ‘fishing expeditions'.

Nonetheless, there is much more leeway in arbitral proceedings to specify forms of gathering evidence. Thus, there can be tailor-made discovery rules for each case.

Court assistance might be necessary if a witness refuses to attend a hearing or if interim measures issued by arbitrators need to be enforced (Article 22, Paragraph 2). In some cases, the courts provide assistance in the collection of other kinds of evidence.

The amended BAA authorises arbitrators to order interim measures (Article 22-B).14 However, before the beginning of the arbitral proceedings, courts may grant any interim measures they deem necessary to prevent rights from perishing, irreparable damages from occurring, or both (Article 22-A). Once the arbitral tribunal is constituted, the arbitrators may maintain, modify or overturn those measures (Article 22-A).

As previously mentioned, a big innovation brought about by the amendments to the BAA was the introduction of the arbitral letter: an instrument of cooperation between arbitrators and state courts that allows the latter to enforce orders issued by the former (Article 22-C).

Chapter V - the award (Articles 23 to 33)

Provisions related to the arbitral award and its requirements are set out in Articles 23 to 31. The award must be expressed in a written document, which must contain the names of the parties and a summary of the dispute. It must also include the grounds for the decision, covering both factual and legal issues, expressly mentioning whether the arbitrators are deciding on an ex aequo et bono basis. It must include the actual decision whereby the arbitrators shall resolve the submitted issues, and establish a time limit for the fulfilment of the decision, if applicable. The arbitrators may issue partial arbitral awards, which is a practice that lacked a specific provision in the original text of the BAA, but is now expressly provided for by Article 23 (1).

The arbitral award is not subject to appeal. The only exception is the right of the parties to file a request for clarification to resolve material errors, ambiguities, contradictions or doubts in the arbitral award (Article 30). Article 31 puts the arbitral award in the same position as a final judicial decision, so enforcement can be sought immediately if the losing party is recalcitrant. Arbitral awards rendered in Brazil have the same effect as the judgments of a domestic court and do not need exequatur, according to Article 31 of the BAA and Article 515.VII, of the Brazilian Code of Civil Procedure.15

There are only limited cases for holding an arbitral award null and void, and the same criteria applies to partial awards (Articles 32 and 33).

According to Article 32 of the BAA, the award may be set aside if the arbitration clause or submission agreement is null and void, or if the award:

  • a was issued by someone who could not have acted as an arbitrator;
  • b does not contain the requirements stated in Article 26 of the BAA;16
  • c was rendered outside the limits established in the arbitration agreement;
  • d is proved to have been rendered in such a way that constitutes a breach of duty, passive corruption or graft of the arbitrator;
  • e is rendered after its time limit has expired, as long as the parties have sent the notice set out in Article 12.III of the BAA; or
  • f the principles covered by Article 21(2) of the BAA are not respected.17

The procedure for challenging an arbitral award is set out in Article 33 of the BAA. The avoidance procedure will follow the Code of Civil Procedure, and must be filed within 90 days of the receipt of the award notification or of its amendment.

Additionally, if a party requests the judicial enforcement of an arbitral award, the other party may present a motion to stay its enforcement under the same grounds that might be used to request that the award be set aside.

Chapter VI - recognition and enforcement of foreign arbitral awards (Articles 34 to 39)

If the place of arbitration is outside Brazil, the foreign award is subject to recognition proceedings before the STJ.

The BAA differentiates between national and foreign awards by adopting the geographical criteria: an award rendered outside Brazilian territory shall be considered a foreign arbitral award (see Article 34). The STJ has rendered a decision confirming the criteria adopted by the BAA.18

The primary sources for the procedure, recognition and enforcement of domestic and foreign awards are contained in Chapters IV, V and VI of the BAA. Decree 4,311 of 2002, which promulgated the New York Convention of 1958, is also important in this respect.

The procedure for recognition comprises enforcement by the STJ19 (Article 35) at the interested party's request (Article 37).

The following documents must be presented: the original of the arbitral award or a duly certified copy authenticated by the Brazilian consulate in the country of origin, accompanied by an official translation (Article 37.I); and the original arbitration agreement or a duly certified copy, accompanied by an official translation (Article 37.II). These requirements are in line with those of the New York Convention.

The proceeding for the recognition and enforcement of foreign awards entails court costs, which are determined by the STJ.20 Expenses deriving from attorneys' fees may range between 10 and 20 per cent of the amount in dispute (Article 85 (2)) of the Code of Civil Procedure) and are usually borne by the losing party.

Chapter VII - final provisions (Articles 41 to 44)

Chapter VII contains provisions related to the modification and revocation of other provisions due to the entry into force of the BAA, and establishes the date when the BAA entered into force.

International treaties

As mentioned earlier, Brazil ratified the New York Convention in 2002. It has not made any reservations, declarations or notifications under Articles I, X or XI of the Convention.

Brazil is also a party to the following multilateral conventions on arbitration:

  • a the Geneva Protocol on Arbitration Clauses (1923);
  • b the Panama Inter-American Convention on International Commercial Arbitration (1975);
  • c the Montevideo Inter-American Convention on the Extraterritorial Enforcement of Foreign Court Decisions and Arbitral Awards (1979);
  • d the Las Leñas Protocol on Judicial Cooperation and Assistance within the Mercosur (1996); and
  • e the Mercosur International Commercial Arbitration Agreement (1998).
ii Brazilian courts and local institutions

There are no courts specialising in arbitration in Brazil. However, there are courts specialised in particular branches of law, such as the labour and electoral courts. In this respect, it is important to mention the trend towards specialisation of commercial courts to solve disputes involving arbitration, which is certainly useful to improve knowledge and develop jurisprudence on the matter. For instance, the state courts of Minas Gerais, São Paulo and Rio de Janeiro have divisions specialised in commercial matters that are competent to deal with matters related to arbitration. As previously mentioned, requests for the recognition of foreign arbitral awards must be brought before the STJ.

Applications to the judicial courts for interim measures are generally filed in the venue stipulated as the competent venue by the arbitration clause (if any). In the absence of such provision, the general rules of competence apply. Applications for the enforcement of arbitral awards are filed before the competent civil judge.21

An application for setting aside an award is filed before the court of the seat of arbitration.

Brazilian arbitral institutions have improved their framework to better respond to the increased use of arbitration in the country and to users' needs for adequate rules applicable to international disputes. The main local institutions are the following:

  • a the Arbitration Center of the American Chamber of Commerce for Brazil - São Paulo (AMCHAM);22
  • b the Commercial Arbitration Chamber of Brazil (CAMARB);23
  • c the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (CCBC);24
  • d the FGV Chamber of Conciliation and Arbitration (FGV);25
  • e the Chamber of Conciliation, Mediation and Arbitration CIESP/FIESP (CIESP/FIESP);26
  • f the Market Arbitration Panel (CAM);27 and
  • g the Brazilian Centre of Mediation and Arbitration (CBMA).28
iii Statistics relating to arbitration

In 2017, the Brazilian Arbitration Committee (CBAr) and the Brazilian Association for Arbitration Students (ABEArb) published an empirical-jurisprudential analysis of arbitration-related decisions rendered by Brazilian courts, which shows not only an exponential increase in the number of arbitrations since the BAA entered into force, but also that arbitration has gained trust among local courts, lawyers and market players.

Statistics confirm that arbitration has continued to grow stronger over the past eight years, as demonstrated by the increase in the number of cases during the period in most of Brazil's institutions. The table below also offers an overview of the most-discussed subject matters, the amounts at stake and the average duration of arbitration proceedings in each of the referred-to chambers:29

Local institutions

AMCHAM

CAMARB

CCBC

FGV

CIESP/FIESP

CAM

Arbitration proceedings initiated

2013

10

20

90

22

37

7

2014

5

30

95

31

44

16

2015

9

20

112

24

42

15

2016

13

24

98

40

57

17

Arbitral awards rendered

2013

6

5

25

3

7

11

2014

8

12

47

6

18

14

2015

6

12

52

6

34

11

2016

8

8

34

18

43

8

Amounts at stake (reais)

2013

From 700,000 to 16 million

From 200,000 to 90 million

From
1,000 to 194 million

From
10,000 to 374 million

From 79,000 to 230 million

From
98,000 to 110.24 million

2014

From 186,000 to 230 million

From 200,000 to 700 million

From 10,000 to 600 million

From 269,000 to 100 million

From 69,000 to 278 million

From 100,000 to 1 billion

2015

From 400,000 to 60 million

From 100,000 to 140 million

From 1,000 to 767 million

From 120,000 to 356 million

From 55,000 to 57 million

From 100,000 to 548 million

2016

From 281,000 to 500 million

From 80,000 to 1 billion

From 100,000 to 2.2 billion

From 73,597.44 to 244 million

From 18,000 to 300 million

From 492,000 to 2 billion

Main matters involved

Corporate and commercial; energy; construction; insurance

Construction and infrastructure; energy;

corporate and commercial; public and private partnership contracts (involving state parties)

Construction; energy; corporate and commercial; international contracts

Energy; oil and gas; mineral resources;

insurance; agricultural partnerships; construction; commercial

Construction; energy; services; commercial; corporate; contracts involving the state and state-owned companies; insurance; international contracts

Corporate; commercial;

stock market

Average duration of proceedings

18 months

27 months

20 months

12 to17 months

28 months

8 to 29 months

In addition, in 2016 the CBMA saw eight arbitration proceedings initiated, and rendered five arbitral awards with an average amount at stake of 72 million reais. The main matters involved contractual and commercial matters, conflicts involving shareholders' agreements and construction contracts, and the average duration of proceedings was 12 months.30

II THE YEAR IN REVIEW

i Developments affecting international arbitration

The existence of modern legislation on arbitration not only allows the increasing and efficient application of this dispute resolution method, but also provides more opportunities for the use of arbitration in the international arena.

Such modern legislation on arbitration must be (as it has been) correctly applied by the courts to build a safe environment for arbitration in Brazil.

ii Arbitration developments in local courts

Brazilian courts have evolved in their rulings on the validity of arbitral agreements and awards, for the most part correctly interpreting and applying the provisions of the BAA. Examples of recent decisions rendered by Brazilian courts involving relevant themes on arbitration are found below.

Interpretation, enforcement and effects of arbitration clauses and the rule of Kompetenz-Kompetenz

Brazilian courts have consistently upheld the binding effect of arbitration clauses. One example of a case aligned with this position is Special Appeal31 No. 371.993/RS, decided by the STJ on 14 October 2014, in which the STJ confirmed the position that resolution of disputes via arbitration is binding when there is an arbitration clause agreed upon by the parties.32 State courts of appeals have adopted a consistent stance. In Sea SRL v. C&C Technologies do Brasil Ltda, the Rio de Janeiro State Court of Appeals recognised the binding force of the arbitration agreement included in a contract for the gathering of geophysical submarine data. It ruled that all issues related to that contract were to be resolved via arbitration, dismissing the lawsuit on the basis of Article 267, VII of the former Code of Civil Procedure.33

Brazilian courts have also recognised the competence of arbitrators to decide on their own jurisdiction (Kompetenz-Kompetenz rule), and correctly applied Article 8, sole Paragraph of the BAA. A recent illustration thereof is Interlocutory Appeal in Special Appeal No. 1.239.319/SC, decided on 14 March 2017, in which the STJ held that the mere acknowledgement of the existence of an arbitration agreement should result in the recognition of the arbitral tribunal's jurisdiction to decide on the existence, validity and efficacy of an arbitration agreement. The same understanding has likewise been adopted by state courts of appeals.34

Qualification of arbitrators, constitution of the arbitral tribunal, challenge to arbitrators

It is important to mention two decisions rendered by the Parana and Rio Grande do Sul State Courts of Appeal, in which it was decided that no allegations presented by parties in an attempt to disqualify arbitrators shall be accepted without proof. Such decisions are, although not recent, representative.

In Alcides Severino Milani,35 the losing party in the arbitration requested the arbitral award to be set aside, arguing, inter alia, that the arbitrator should have been disqualified because he had previously assisted one of the parties. This argument was rejected. In Saul Chervonagura,36 the Parana State Court of Appeals also rejected allegations related to the arbitrator that were presented to annul the award. The Court held that it was proved that before the arbitration proceeding was held, the parties and the arbitrator were friends, to the extent that the arbitrator was appointed at the appellant's initiative - so the appellant had been aware of the friendship. Furthermore, the Court sustained that disqualification should have been alleged at the first opportunity the appellant had to do so in the arbitration.

It is also worth mentioning the decision rendered by the São Paulo State Court of Appeals upholding a decision that rejected the challenge of an arbitral award based on, inter alia, an alleged legal impediment of the arbitrator. The Court stated that the challenging party failed to provide evidence of its allegations.37

Disputes involving shareholders in joint-stock companies

As previously mentioned, Law No. 13.129/15, which amended the BAA, also amended the Brazilian corporate legislation (Law No. 6.404/76). Before this legislative improvement, there was still discussion regarding the possibility of binding dissident or absent shareholders to arbitration, should there be a vote to include an arbitration agreement in a company's by-laws. Such controversy was resolved by the inclusion of Article 136-A in Law No. 6.404/76 so as to allow dissidents or absentees to either abide by the majority decision - and, consequently, by the arbitration agreement - or exercise their right to withdrawal, being reimbursed for the amount corresponding to their shares. One case that upheld this rationale is Appeal No. 500984610.2015.4.04.7201-SC, decided on 15 December 2016 by the 4th Regional Federal Court, in which it was held that, once the shareholder had chosen to own shares in a company's stock, he was bound by its statute and, consequently, to the arbitration agreement contained therein.38

Judicial assistance in evidence gathering for arbitration proceedings

An illustration of the courts' power and willingness to provide assistance in the production of evidence is Appeal No. 1093560-14.2016.8.26.0100, decided by the São Paulo State Court of Appeals on 20 April 2017. The lower court judge had denied a pre-arbitral interim request for the production of documents based on the arbitration agreement's effect of repelling the state court's jurisdiction. The São Paulo State Court of Appeals, however, overturned such decision. It held that the purpose of the interim measure was not to produce evidence that could have been produced later on in the arbitration, but rather to safeguard evidence that would be relevant for the outcome thereof.39

Interim measures

Even prior to the amendments to the BAA, which introduced a new chapter on interim measures, state courts were already adopting a view that was deemed favourable to arbitration. One paramount case regarding the powers of arbitral tribunals to grant interim and precautionary measures was Itarumã v. PCBIOS, in which the latter filed a suit for the concession of a precautionary measure to suspend the shareholders' rights of the former in a company constituted by the parties. The lower court refused to grant the interim relief, and PCBIOS appealed to the state appellate court, which granted the appeal. In its counter arguments to the appeal, Itarumã alleged the occurrence of a supervening fact - the signing of the terms of reference confirming the establishment of the arbitral tribunal - so the question was to be submitted to the arbitral tribunal. PCBIOS then appealed to the STJ, which decided that since the temporary circumstances that justified intervention no longer existed, and considering that submitting disputes to arbitration as a rule transfers jurisdiction to the arbitrators, the question of preliminary relief was to be decided by the arbitral tribunal.40

In Ecometals Manganes do Amapá Ltda v. Alto Tocantins Mineração, the STJ was faced with an allegation that the interim measure granted by the state court prior to the constitution of the arbitral tribunal should be in force until the end of the arbitral proceedings. The STJ held that, if and once the arbitral tribunal was constituted, the competence to address all controversial matters - including the need for interim measures - lay with it.41

Recognition and enforcement of arbitral awards

Since 2004, when the competence for the recognition and enforcement of foreign awards was transferred from the STF to the STJ, 66 requests for the recognition and enforcement of foreign arbitral awards have been decided and become part of the STJ's jurisprudence. In 53 cases, the request for recognition and enforcement was granted,42 in 10 cases it was denied43 and in three cases it was partially granted.44

The following reasons were given by the STJ to deny recognition and enforcement in Brazil:

  • a lack of jurisdiction of the arbitral tribunal: the arbitral award was rendered by a sole arbitrator when it should have been rendered by an arbitral tribunal composed of three arbitrators according to the parties' agreement;45
  • b the arbitral award had been annulled at the seat of the arbitration;46
  • c absence of proof of the respondent's consent to the election of the arbitral tribunal47 and of the existence of an agreement to arbitrate;48
  • d lack of valid summons of the Brazilian party in a judicial proceeding filed for the recognition of an arbitral award with the Connecticut court: even if the confirmation
  • of the award by the Connecticut court was unnecessary, the Brazilian party should have been summoned by letter rogatory in the recognition proceedings;49
  • e the merits of the request could not be analysed, since the STF had already rendered a decision in the sense that there was neither an arbitration clause nor a contract signed by the parties;50
  • f to grant the request, it would be necessary to proceed with an analysis of the claimant's legitimacy concerning the credit assignment agreement, which was not mentioned in the arbitral award, and this is not permitted;51
  • g the matter related to the existence of the contract could not be analysed because it concerns the merits; the contracts were reached orally between the parties and there was no proof of the respondent's consent to the agreement; and, moreover, the respondent submitted to the arbitral tribunal an argument related to the absence of an arbitration clause, so there was no way to hold that such clause was accepted, even tacitly;52
  • h offence to the Brazilian sovereignty: the claimant had obtained the allowance of its credit arising from a commercial contract that gave rise to the arbitration in a court-supervised reorganisation of companies in debt granted by a Brazilian court at the request of the respondent. The respondent had made a judicial deposit to guarantee partial satisfaction of the debit, and the claimant had filed an appeal against the decision holding the deposit to be sufficient;53 and
  • i violation of national public policy. The STJ has already consolidated its position that cumulating the monetary correction with the exchange variation - precisely what had been done by the arbitrators in the given foreign arbitral award - constitutes an offence to the national public order.54

Regarding the standing to file a request for recognition, in Atecs Mannesmann55 the STJ rejected the respondent's allegation that the claimant could not file the request because it was not party to the original's proceedings. In this sense, it ruled that any party interested in the effects produced by the foreign award has standing to file for recognition.

In First Brands,56 the court denied the respondent's allegations related to the merits, ruling that in recognition proceedings the analysis is restricted to the formal requirements of the award. Moreover, the existence of a suit to set aside an award in progress in Brazilian courts is no impediment to the recognition of that same award. This was also the STJ's decision in GE Medical Systems Information Technologies v. Paramedics Electromedicina,57 in which it ruled that the existence of a suit challenging the validity of an arbitration clause before Brazilian courts does not prevent the recognition of a foreign arbitral award.

In C M G C K v. T I S/A,58 Weil Brothers Cotton Inc v. Espólio Pedro Ivo de Freitas,59 Mandate Holdings LLC v. Consórcio Europa60 and Queensland Cotton Corporation Ltda v. Agropastoril Jotabasso,61 the STJ consistently reiterated its ruling that it cannot proceed to the analysis of issues such as the validity and nature of a contract in a proceeding for the recognition of a foreign award due to the reason that such analysis would entail an examination of the merits of the dispute.

In CIMC Raffles Offshore Limited and Yantai CIMC Raffles Offshore Limited v. Schahin Holding SA and others,62 the STJ refused to examine matters related to the extension of the effects of an arbitration agreement to contracts connected to a dispute because this would be in the arbitral tribunal's competence.

Finally, in Pothole Killers v. Eco Tech,63 the party challenging the award argued that, by granting an interim request made by the opposing party, the arbitrator had prejudged the merits of the case, which would put his impartiality and independence to question. The STJ has held that it has no power to invade the arbitral tribunal's competence to decide for or against an interim request, particularly because there is no indication of the arbitrator's partiality that could entail a violation of public policy or national sovereignty.

Annulment of arbitral awards

As mentioned in Section I, supra, the CBAr and the ABEArb published an important study on the acceptance of arbitration by the Brazilian courts in 2017.64 The report examined 11 decisions rendered by the STF and the STJ involving specifically the invalidity of arbitral awards. Not once did the STF or STJ decide on the annulment of the arbitral award.65

One such case involving a request for the setting aside of an arbitral award is André Azevedo Marques de Campos e outros v. Odontoclinic SA,66 on which occasion the São Paulo State Court of Appeals rejected a request for the annulment of an arbitral award. The annulment request was based on three allegations: lack of proof of the loss of profits that was included among the amounts of the condemnation in the arbitral award; the disregard by the arbitral tribunal of the deadline to render the award; and the rendering of an extra petita decision. The São Paulo State Court of Appeals rejected all the annulment claims, first by acknowledging that its analysis of the arbitral award is restricted to its formal requirements; secondly, by reminding the parties that the arbitral award was issued in due time, given that the arbitral tribunal had already validly extended the deadline of the issuance of the award, and such extension was duly informed to the parties; and finally, by stating that the decision was not extra petita, as the terms of reference had already been corrected to comprise all requests and companies involved in the dispute.

Another case worth mentioning is CPFL - Energias Renováveis SA v. Aristóteles Canamary Ribeiro Filho,67 in which the São Paulo State Court of Appeals adopted the same stance by rejecting a request for the annulment of an arbitral award. In said case, the challenging party argued that the arbitral tribunal failed to abide by the issues raised by the parties, both by basing its decision on an issue that was not invoked by any party, and by failing to address issues that were. The São Paulo State Court of Appeals has held that the challenge was simply an attempt to reopen the merits for discussion, and therefore sustained the validity of the arbitral award.

iii Investor-state disputes
Arbitration and state companies

The possibility of arbitration proceedings involving Brazil's public administration has been extensively debated in Brazil in recent years. Today, the validity of arbitration agreements executed by governmental entities and bodies is consolidated not only among scholars and predominantly accepted by Brazilian courts, but has been recognised by and incorporated in the 2015 amendments of the BAA.68

Case law has also helped bypass the existing doubts as to whether state companies can be parties to an arbitration proceeding. As previously mentioned, in TMC Terminal Multimodal de Coroa Grande,69 AES Uruguaiana Empreendimentos70 and COMPAGAS v. Consórcio Carioca Passarelli,71 the STJ ruled in favour of the submission of state-controlled companies to arbitration.

Cases decided locally involving investors and other states

Brazil has not ratified any bilateral international treaty on investment arbitration; nor has it signed the ICSID Convention. Nevertheless, due to satisfactory economic growth and the increase in international investments in Brazil, commercial arbitration has naturally developed as an effective alternative to local courts.

III OUTLOOK AND CONCLUSIONS

Arbitration is well established and increasingly well known and adopted in Brazil, as confirmed by the main local institutions' statistics and court decisions. Brazilian courts have been correctly applying the arbitration legislation, evidencing their positive stance towards the development of this dispute resolution mechanism.

The recent entry into force of the amendments to the BAA by the Brazilian Congress was the result of an ongoing joint effort by the Brazilian arbitral community, the representatives of the judiciary power and some politicians, and is aimed at preserving advancements achieved so far, and also at developing and consolidating such institute in Brazil. Similarly, the approval of the New Code of Civil Procedure has also been discussed by the arbitral community with regard to the amendments related to arbitration. The outcomes have overall been deemed satisfactory by leading practitioners and academics in the field. Furthermore, it is interesting to observe how arbitration has positively influenced some of the modifications put forward in the New Code of Civil Procedure in favour of a more flexible procedure.

Further to the issues covered here, many other interesting and complex questions are being debated by the legal and business communities and Brazilian courts.

As demonstrated by the information provided by the main Brazilian arbitral institutions in Section I, supra, commercial and corporate matters are some of the matters most frequently resolved through arbitration. For instance, issues related to corporate dissolution, share purchase agreements and the capital market have been among the most-debated matters in arbitral proceedings managed by local institutions. Matters related to construction contracts have also been among those matters most often submitted to arbitration. In this field, interesting debates have taken place, including the production of evidence in this type of dispute to increase efficiency, and to reduce costs and time. There has also been discussion of the use of other mechanisms, such as dispute boards, to prevent conflicts. Furthermore, disputes in the energy sector and those related to the provision of services agreements have been highlighted by local arbitral institutions as matters often discussed in arbitration proceedings.

It is clear that Brazil is a safe environment for domestic and international arbitration, which is due to:

  • a the country's modern arbitral framework;
  • b decisions of its courts that correctly interpret and apply such framework;
  • c arbitral institutions that are on the front line when it comes to implementing best practices seen in international arbitration; and
  • d the never-ending campaign undertaken by practitioners to refine and modernise arbitration in Brazil and abroad.

These are important elements that provide stronger legal certainty for investors and companies when deciding whether to establish Brazil as the seat of their arbitral proceedings.

1 Luiz Olavo Baptista is the founder and Mariana Cattel Gomes Alves is a member of Atelier Jurídico. The authors are grateful for the assistance of Atelier Jurídico researchers Bruno Cedano, Caique Queiroz, Lucas de Medeiros Diniz and Luiza Pedroso, and also to Camila Emi Tomimatsu, a former researcher.

2 The BAA was promulgated in 23 September 1996 and amended on 25 July 2015. A Portuguese version of the amended BAA is available at www.planalto.gov.br/ccivil_03/leis/L9307.htm. An English version of the 1996 BAA with the 2015 amendments is available at cbar.org.br/site/legislacao-nacional/lei-9-30796-em-ingles.

3 The Portuguese version of the New Code of Civil Procedure is available at www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13105.htm.

4 Brazilian Senate's Law Proposal No. 406 from October 2013.

5 The CISG was approved by the Brazilian Senate in October 2012 (Decree 538). It was deposited with the Secretary General of the United Nations in March 2013 and, pursuant to its Article 99(2), entered into force on 1 April 2014.

6 Provisions on arbitration were also contained in the former Civil Code of 1916 and former Code of Civil Procedure of 1939.

7 Soon after the enactment of the BAA, in September 1996, a challenge to BAA's constitutionality reached the Federal Supreme Court (STF). The case was resolved in December 2001 when the Court confirmed the constitutionality of all provisions of the BAA (Kingdom of Spain, MBV Commercial and Export Management Establishment v. Resil Indústria e Comércio Ltda, SE No. 5206-7 AgR).

8 BAA, Article 1: ‘Persons capable of entering into contracts may settle through arbitration disputes related to freely transferable patrimonial rights.'

9 AES Uruguaiana Empreendimentos Ltda v. CEEE - Companhia Estadual de Energia Elétrica, Special Appeal No. 612.439/RS, decided on 25 October 2005.

10 TMC Terminal Multimodal de Coroa Grande SPE SA v. Ministro de Estado da Ciência e da Tecnologia, Petition for Writ of Mandamus No. 11.308/DF, decided on 9 April 2008.

11 See Special Appeal No. 1.169.841-RJ, decided on 6 November 2012 and Special Appeal No. 1.189.050, decided on 1 March 2016.

12 Article 8, sole Paragraph: ‘It shall be up to the arbitrator to decide on his own motion or per request of the parties, the issues concerning the existence, validity and efficacy of the arbitration agreement and of the contract which contains the arbitration clause.'

13 See, for example, Article 14 of the 2012 CCBC Arbitration Rules: ‘14.1 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.' See also Article 9 of the CAM Rules: ‘9.1 Arbitration proceedings are confidential and all parties, arbitrators and members of the Arbitration Chamber shall refrain from disclosing any information relating to such proceedings except in compliance with the instructions or rules of regulatory bodies and with the applicable legislation.'

14 See Baptista, Luiz Olavo, ‘Arbitragem Comercial e Internacional', São Paulo, Lex Magister, 2010, Chapter XIV, pp. 221-8.

15 Article 515: ‘The following are enforceable judicial instruments, the enforcement of which shall be achieved in accordance with this Chapter's provisions: [...] VII - arbitral awards.'

16 Article 26:

The arbitral award must contain:

I - a report, including parties' personal data, as well as a summary of the dispute;

II - the grounds of the decision with due analysis of factual and legal issues, including, if it is the case, a statement of the decision in equity;

III - the actual decision wherein the arbitrators shall resolve questions that are submitted to them and establish a time limit for the compliance with the decision, as the case may be; and

IV - date and place of the making of the award.

Sole Paragraph - The arbitral award shall be signed by the arbitrator or all arbitrators. If one or more arbitrators is unable to or refuses to sign the award, the chairman of the arbitral tribunal shall certify such fact.

17 Article 21(2): ‘The principles of due process of law, equal treatment of the parties, impartiality of the arbitrator and freedom of decision shall always be respected.'

18 Special Appeal No. 1.231.554/RJ, Nuovo Pignone Spa and others v. Petromec Inc and Marítima Petróleo e Engenharia, decided on 24 May 2011. The STJ ruled that, according to the BAA, arbitral awards rendered in Brazil are domestic awards, regardless of the nationality of the institution that administered the proceedings. In casu, the award was rendered in Rio de Janeiro and the proceedings were administered by the ICC. The award was a domestic one, and could be enforced without being subject to recognition and enforcement proceedings.

19 According to Article 105(I) of the Brazilian Constitution, as amended by the Constitutional Amendment 45 of 8 December 2004, foreign awards are recognised and enforced by the STJ. See also Article 15 of the Introductory Law to the Civil Code.

20 According to Resolution No. 01 of 2014, court costs for recognition and enforcement proceedings amount to 139.20 reais.

21 Article 516, III of the Code of Civil Procedure.

22 The English version of the AMCHAM Arbitration Rules is available at www.amcham.com.br/centro-de-arbitragem-e-mediacao/mediacao/rules-arbitration-mediation-2016.pdf.

23 The CAMARB Arbitration Rules are available at camarb.com.br/en/arbitration-rules/

24 The CCBC Arbitration Rules are available at www.ccbc.org.br/Materia/1067/regulamento.

25 The FGV Arbitration Rules are available at camara.fgv.br/conteudo/regulamento-en.

27 CAM Arbitration Rules are available at www.bmfbovespa.com.br/lumis/portal/file/fileDownload.jsp?fileId=8A828D294E6F7F51014E734202294677.

28 CBMA Arbitration Rules are available at cbma.com.br/us/index.php?t=pagina&a=pagina&cd=41.

29 Table information provided by the referred-to institutions.

30 Information provided by the CBMA.

31 A special appeal is an appeal to the STJ.

32 Haakon Lorentzen and others v. Hugo Pedro de Figueiredo (AgRg no Ag em REsp No. 371.993/RS).

33 Appeal No. 0032946-92.2011.8.19.0209, decided on 4 February 2015. Article 267, VII, of the former Brazilian Code of Civil Procedure provided that a lawsuit concerning a dispute that is subject to an arbitration agreement shall be dismissed.

34 See, for instance, Interlocutory Appeal No. 2262605-42.2015.8.26.0000, decided on 4 July 2016 by the São Paulo State Court of Appeals.

35 Alcides Severino Milani v. Waldoir Vincente Schwerz, Appeal No. 70005797774, decided on 3 April 2003.

36 Saul Chervonagura v. Isidoto Rozenblum, Appeal No. 436.093-6, decided on 14 November 2007.

37 Appeal No. 0004881-68.2006.8.26.0597, decided on 21 January 2014.

38 José Wianey Adami v. Petrobrás and União, Appeal No. 500984610.2015.4.04.7201-SC, decided on 15 December 2016 by the 4th Regional Federal Court.

39 José de Jesus Álvares da Fonseca v. Dante Prati Fávaro, Appeal No. 1093560-14.2016.8.26.0100, decided by the São Paulo State Court of Appeals on 20 April 2017.

40 Special Appeal No. 1.297.974-RJ, decided on 12 June 2012.

41 Special Appeal No. 1.325.847, decided on 5 March 2015.

42 SEC Nos. 4415 (US); 3035 (Switzerland); 3661 (Great Britain); 3660 (Great Britain); 894 (Uruguay); 1302 (South Korea); 831 (France); 1210 (Great Britain); 349 (Japan); 611 (USA); 507 (Great Britain); 760 (USA); 874 (Switzerland); 887 (France); 802 (US); 856 (Great Britain); 839 (France); 4439 (Great Britain); 4933 (Mexico); 6335 (US), 4837 (Uruguay); 3709 (US); 7629 (US); 7591 (US); 4980 (Great Britain); 3891 (Great Britain); 4024 (Great Britain); 4213 (Great Britain); 4516 (US); 5828 (Italy); 6365 (US); 6753 (Great Britain); 6760 (Great Britain); 6761 (Great Britain); 8847 (France); 9714 (US); 9880 (US); 9502 (Russia); 5692 (US); 10658 (Switzerland); 3892 (Great Britain); 10643 (Japan); 11529 (Qatar)10702 (Switzerland); 8242 (Hong Kong); 10432 (Argentina); 11969 (US); 3892 (Great Britain); 12115 (Spain); 9619 (England); 9820 (England); 12041 (China); and 12.493 (US).

43 SEC Nos. 826 (South Korea); 885 (US); 968 (France); 978 (Great Britain); 833 (US); 866 (Great Britain); 967 (Great Britain); 12236 (Germany); 11593 (Great Britain); 5782 (Argentina).

44 SEC Nos. 1 (US), Kia Motors v. Asia Motors and others, decided on 19 October 2011; 854 (US), GE Medical Systems Information Technologies Inc v. Paramedics Electromedicina Comercial Ltda and Paulo Werlang, decided on 16 October 2013; and 2410 (Uruguay), Construcciones y Auxiliar de Ferrocarriles S/A and CAF Brasil v. Supervia Concessionária de Transporte Ferroviário S/A, decided on 18 December 2013.

45 SEC No. 12236 (Germany), Thyssenkrupp Steel Europe Ag v. Companhia Siderúrgica Nacional CSN, decided on 16 December 2015.

46 SEC No. 5782 (Argentina), EDF International S/A v. Endesa Latinoamerica S/a and YPF S/A, decided on 2 December 2015.

47 SEC No. 978 (Great Britain), Indutech SPA v. Algocentro Armazéns Gerais Ltda, decided on 17 December 2008.

48 SEC Nos. 885 (US), Kanematsu v. ATS - Advanced Communications System do Brasil, decided on 2 August 2010; 11593 (Great Britain), Biglift Shipping BV v. Transdata Transportes Ltda, decided on 16 December 2015.

49 SEC No. 833 (US), Subway Partners CV v. HTP High Technology Foods Corporations SA, decided on 16 August 2006.

50 SEC No. 967 (Great Britain), Plexus Cotton Limited v. Santana Têxtil SA, decided on 15 February 2006.

51 SEC No. 968 (France), Gottwald Port Technology GMBH v. Rodrimar SA Transportes Equipamentos Industriais e Armazéns Gerais, decided on 30 June 2006.

52 SEC No. 866 (Great Britain), Oleaginosa Moreno Hermanos Sociedad Anonima Comercial Industrial Financeira Inmobiliaria y Agropecuaria v. Moinho Paulista Ltda, decided on 17 May 2006.

53 SEC No. 826 (KR), Ssangyong Corporation v. Eldorado Industrias Plasticas, decided on 15 September 2010.

54 SEC No. 2410 (Uruguay), Construcciones y Auxiliar de Ferrocarriles S/A and other v. Supervia Concessionário de Transporte Ferroviário S/A, decided on 18 December 2013. In this case, the recognition and enforcement of the part of the arbitral award that incurred in violation of public policy was denied; thus, the recognition and enforcement of such foreign decision was only partially granted by the STJ.

55 Atecs Mannesmann GMBH v. Rodrimar SA Transportes Equipamentos Industriais e Armazéns Gerais, SEC No. 3035 (Switzerland), decided on 19 August 2009.

56 First Brands do Brasil Ltda and STP do Brasil Ltda v. STP - Petroplus Produtos Automotivos SA PPA and Petroplus Sul Comércio Exterior SA, SEC No. 611 (US), decided on 23 November 2006.

57 Interlocutory Appeal in SEC No. 854, decided on 16 February 2011.

58 C M G C K v. T I S/A, SEC No. 11969, decided on 16 December 2015.

59 Weil Brothers Cotton Inc v. Espólio Pedro Ivo de Freitas, SEC No. 4213 (Great Britain), decided on 19 June 2013.

60 Mandate Holdings LLC v. Consórcio Europa, SEC No. 6365 (US), decided on 6 February 2013.

61 Queensland Cotton Corporation Ltda v. Agropastoril Jotabasso, SEC No. 6753 (Great Britain), decided on 7 August 2013.

62 SEC No. 9880 (US), decided on 21 May 2014.

63 SEC No. 12.493 (US), Pothole Killers LLC v. Eco Tech Engenharia Ltda., decided on 15 February 2017.

64 This study aimed at updating the 2007 CBAr-FGV Survey, which had the same scope and mapped decisions rendered between November 1996 and February 2008. The 2016 CBAr-ABEArb Survey encompassed decisions rendered between 1 January and 31 December 2015.

65 Although there were cases in which the annulment of an award was upheld by the STF or STJ because there were procedural obstacles preventing any analysis of the merits of the challenge.

66 Appeal No. 1006878-60.2013.8.26.0068, decided on 17 February 2014.

67 Appeal No. 1094855-57.2014.8.26.0100, decided on 12 December 2016.

68 Article 1, Paragraph 1: ‘The direct and indirect Public Administration will be entitled to resort to arbitration to solve disputes related to patrimonial rights that are disposable.'

Paragraph 2: ‘The authority or the competent organ of the direct Public Administration for the celebration of the arbitral agreement is the same as the one for the conclusion of settlements or agreements.' (Free translation.)

69 TMC Terminal Multimodal de Coroa Grande SPE SA v. Ministro de Estado da Ciência e da Tecnologia, Mandamus Petition No. 11.308/DF, decided on 9 April 2008.

70 AES Uruguaiana Empreendimentos Ltda v. CEEE - Companhia Estadual de Energia Elétrica, Special Appeal No. 612.439/RS, decided on 25 October 2005.

71 Companhia Paranaense de Gás Natural - COMPAGAS v. Consórcio Carioca Passarelli, Special Appeal No. 904.813/PR, decided on 20 October 2011.