Consolidation of Arbitration by the Brazilian Courts: STF and STJ

Abstract

Abstract This chapter traces the evolution of case law regarding arbitration in Brazil. Before the enactment of the Brazilian Arbitration Law (BAL), arbitration was not taken seriously in Brazil because the applicable norms of the Civil Code and of the Civil Procedure Code created mounting obstacles, which prevented commercial arbitration from flourishing. The new statute of 1996 changed this completely and introduced an arbitration friendly legal framework. In 2001, the Federal Supreme Court (STF) upheld the constitutionality of the BAL. From then on, the Superior Tribunal of Justice (STJ), the court of third instance, has played a key role in defining clear and predictable rules about arbitration. The success of arbitration in Brazil has had a significant impact on the reform of the Civil Procedure Code, which was enacted in 2015. The new Code embraced arbitration as central part of a new public policy directed to the promotion of alternative means of dispute resolution and the fostering of a multi-door courtroom system. The increasing relevance of arbitration for the resolution of business disputes in Brazil might also explain the adoption of a system of mandatory pre-trial hearing purported to stimulate the parties to use mediation and/or conciliation to solve their conflict.