A recent decision rendered by an arbitral tribunal constituted under the Centre for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada has ended a 20-year dispute over the largest container port in South America. The outcome of this arbitration is positive, as it demonstrates that Brazil's arbitral framework is well established and well functioning – even in disputes involving public administration.
The Superior Court of Justice recently upheld a Sao Paulo State Appellate Court decision which had set aside an arbitral award due to alleged irregularities during the formation of the arbitral tribunal in the context of a multi-party dispute. The Superior Court of Justice's decision confirms the appellate court's opinion that the proceeding which had been adopted to form the arbitral tribunal contravened public policy.
The Superior Court of Justice recently confirmed the jurisdiction of an arbitral tribunal constituted before the Market Arbitration Chamber to render a decision connected to a company that had filed a lawsuit for a recovery plan before the competent court of law. In addition to taking a pro-arbitral stance on an important national case, this decision reinforces the jurisdictional nature of arbitration and solidifies the case law on conflicts of competence.
A recent Superior Court of Justice decision has broadened the interpretation of consent to an arbitration agreement to include economic groups, which could – by implication – pierce the corporate veil in such cases and extend arbitral jurisdiction to non-signatory parties. The decision sets a precedent for this issue and will serve as a parameter for future decisions by both the lower courts and the Superior Court of Justice.
The Sao Paulo State Appellate Court recently rendered an important precedent on the interpretation of Article 4(2) of the Arbitration Act. The appellate court ultimately dismissed the franchisee's appeal, despite arguments that, among other things, the franchise agreement entered into by the parties was a contract by adhesion, pursuant to Article 54 of the Consumer Protection Code. As such, the arbitration clause was invalid because it did not follow the requirements contained in Article 4(2) of the Arbitration Act.
The Superior Court of Justice recently decided on the consequences of a successful application to set aside an arbitral award. The court's decision resulted from a declaration by the state courts that the nullity of arbitral awards is provided for in Article 33 of the Arbitration Act. Notably, this case was considered under the original version of the Arbitration Act (ie, before its 2015 amendment) due to the date on which the lawsuit had been filed.
The Superior Court of Justice recently held that an arbitral tribunal has jurisdiction to (re)assess a pre-arbitral interim measure relating to an agreement containing an arbitration clause that was previously filed before the judiciary as soon as it is constituted. The controversy brought before the court concerned a recurring issue in the field of arbitration: the intersections between state courts and arbitral tribunals, especially when dealing with the establishment of competent jurisdiction.
The recently approved labour reform allows arbitration in individual employment agreements, provided that the employee's monthly salary is twice as high as the cap on social security pensions and the arbitration clause is proposed or expressly agreed by the employee, according to the Arbitration Law. This means that employees with a higher level of education and income can now sign employment contracts for the settlement of any disputes through arbitration.
The full bench of the Superior Court of Justice recently refused the recognition and enforcement of two arbitral awards issued by an arbitral tribunal seated in New York under the International Chamber of Commerce Rules. This decision is historic and important for arbitration, as it is one of the rare cases in which the Superior Court of Justice failed to recognise a foreign arbitral award.
The Sao Paulo State Court was recently faced with a dispute between the contracting parties to a franchise agreement. While the judge rapporteur recognised that the Brazilian legal system provides for competence-competence as a general rule, given the circumstances of this case, he declared the arbitration clause in the relevant franchise agreement to be null.
The Superior Court of Justice recently issued an important decision that not only demonstrates the level of sophistication reached by the superior courts in relation to arbitration, but also the prestige that arbitration has achieved in the country as a dispute resolution method which has a jurisdictional characteristic. The decision is critical for the development of arbitration in Brazil, since it reinforces the state courts' position in favour of arbitration.
December 14 2016 is already being considered 'D-day' with regard to arbitration and corporate law, as before the Brazilian judiciary's court recess, two important precedents were set on the subject. Questions still exist regarding whether these precedents are conflicting and only time and the likely debates following these decisions will be able to resolve them. However, one thing is certain: the judiciary's final decisions in 2016 are likely to cause intense discussions in 2017.
The Superior Court of Justice recently ruled that an arbitration clause providing that disputes between the contracting parties must be settled by "arbitration or mediation" was valid. In addition, the court held that the arbitration clause would be valid even if inserted into an agreement that, despite the presence of the arbitration clause, also allowed certain situations to be resolved by the courts.
The Superior Court of Justice recently declared an arbitration clause inserted into a franchise agreement null, as it did not meet the requirements set out under Article 4(2) of the Arbitration Act. The court ultimately ruled that although franchise agreements are common commercial contracts, they are still considered adhesion contracts. As such, any arbitration clause provided therein must comply with the formal requirements set out in the Arbitration Act.
The Mediation Act and the new Code of Civil Procedure were recently enacted in an effort to usher in a new era for litigation and arbitration in Brazil. Among the innovations being introduced in the civil courts, the new code asserts a strong policy favouring alternative dispute resolution in order to reduce the cost of litigation and empower litigants and market players to resolve disputes amicably.
The Sao Paulo Court of Appeals recently ruled that an arbitration clause inserted into a contract by adhesion was binding. This decision has important implications, as many arbitration proceedings involve standardised commercial contracts in which clauses have been unilaterally established by one party without eliminating the bargaining power of the accepting party.
Congress recently approved Federal Law 13.129/2015, which has amended the Arbitration Law in order to address questions and concerns, consolidate court precedents and align the Arbitration Law with the new Civil Procedure Code. Changes introduced by the new law include new rights for parties when choosing an arbitrator, the introduction of partial awards and the establishment of a statute of limitations.
Congress recently approved a new Civil Procedure Code, which will come into force in March 2016. The new code has integrated the specific rules on arbitration and the civil rules in order to promote alternative dispute resolution – in particular, arbitration and mediation. This will reduce the number of suits filed before the courts and offer a definitive and quick means of dispute resolution.
After Brazil's enactment of the New York Convention, domestic regulations ended the old double exequatur system and obligation to have exequaturs in Brazil and the foreign jurisdiction where the arbitral award was made. To be enforced in Brazil, foreign awards must now be recognised by the Superior Tribunal of Justice. In light of these changes, the Superior Tribunal of Justice recently amended its internal regulations.
The American Chamber of Commerce for Brazil Arbitration and Mediation Centre recently launched its new rules. The changes include the addition of mediation into its activities and a new mediation clause model. The new rules are an example of how Brazilian arbitration centres are working to ensure their credibility and provide better conflict resolution for parties.