Abstract
International arbitration arose as a global phenomenon with the growth of transcontinental trade in a progressive smaller world. As its role and importance have become defined, the use of arbitration as an alternative dispute resolution has increased all around the world accordingly. However, even with unified international documents, such as the 1958 New York Convention, 1965 Washington Convention, 1985-2006 United Nations Commission on International Trade Law, or UNICITRAL Model Law, arbitration has been approached differently domestically, thus facing conflicts or controversies. This paper has as main objective to explain the key points concerning arbitration within the Brazilian legal system. The evolution of arbitration will be studied since the Iberian Union in the colonial era in order to bring about the formation of its legal characteristics. Besides, the current Brazilian Arbitration Act, promulgated in 1996, will be analyzed focusing on its provision gaps. The Sulamerica-Enesa arbitral award will be the case study of this paper, which will contribute to a better understanding of the increase in conflicts with the use of this method of dispute resolution. Last, an overview of the Brazilian arbitration legislation as well as its “gaps” will determine that in spite of arbitration being successfully implemented in Brazil, there is still an eminent need to improve legislation, which will be substantial to avoid further conflicts in lex arbitri, lex curia and lex contractus within arbitration itself.
Highlights
International arbitration arose as a global phenomenon with the growth of transcontinental trade in a progressive smaller world
Under the 1988 Constitution11, Article 4, paragraph VII establishes that the Federative Republic of Brazil, in its international relations, is ruled by the principles of peaceful dispute settlements for arbitral matters, under the Brazilian legal system, specific legislation has prevailed over general ones
There are several domestic hybrid arbitration institutes all over the country, such as the Brazil-Canada Chamber of Commerce (CCBC), the Sao Paulo Chamber for Mediation and Arbitration (FIESP/CIESP), Conciliation and Arbitration Chamber of the Fundação Getúlio Vargas (FGV), the Corporate Chamber of Commerce in Brazil (CAMARB), the Arbitration and Mediation Center of the American Chamber of Commerce in São Paulo (AMCHAM), Mediation and Arbitration Center of the Portuguese Chamber of Commerce in Brazil and the Market Arbitration Center instituted by BOVESPA/BMF (Câmara de Arbitragem do Mercado (CAM). Foreign arbitrators such as the International Chamber of Commerce (ICC) operate in the country; 2) The Brazilian Arbitration Act does not provide specific rules regarding the effects of the arbitral agreements before third parties; 3) The Brazilian arbitration law has no specific legal provision about the consolidation of separate arbitral proceedings; 4) Brazilian law does not expressly deal with the confidentiality of arbitral proceedings, but it is a common practice within the arbitral institutions and tribunals not to release further information of cases and awards; 5) There is no specific provision under the Brazilian Arbitration Act regarding consolidation of multiple arbi
Summary
Arbitration in the Brazilian legal system, even though is a relatively recent young practice, goes back to the Portuguese colonization for its first legal documents. Arbitration gained spaced only in 1939 through the Civil Procedure Code and later, through the 1973 Procedure Code. It was in the 1946 Constitution that arbitration was regulated as a judicial right of pledge (da Costa, 2011). The 1969 Amendment 1 of the 1967 Republican Constitution allowed the use of arbitration for international disputes (Mardegan, 2012). Under the 1988 Constitution, Article 4, paragraph VII establishes that the Federative Republic of Brazil, in its international relations, is ruled by the principles of peaceful dispute settlements for arbitral matters, under the Brazilian legal system, specific legislation has prevailed over general ones. It was only with the enactment of the Arbitration Act in 1996 that arbitration became fully regulated on both procedural and substantive features
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