Part 2 Specific Issues of Arbitration in Brazil, 5 Characteristics of Brazilian Arbitration Practice

Abstract

This chapter assesses the characteristics of Brazilian arbitration practice. As it is common to say, the quality of the arbitration proceedings relies primarily on the quality of the arbitrator. In this regard, article 13 BAL—in line with the main leading institutional rules—provides that ‘any individual with legal capacity, who is trusted by the parties, may serve as arbitrator’, granting the parties broad autonomy to select the arbitrators, as long as the elected candidate has the necessary legal skills and the parties' trust, regardless of their nationality, prior competence/specified expertise, or presence in certain pre-existing lists. The general rules for Brazilian arbitrators' appropriate conduct can also be found in article 13 BAL, which establishes that ‘in performing his duty, the arbitrator shall proceed with impartiality, independence, competence, diligence and discretion’. The chapter then considers how Brazilian courts have been playing an important role over the last 20 years by applying the Brazilian Arbitration Law (BAL) and refraining from deciding on the merits of cases in which the parties have opted for arbitration as their dispute resolution mechanism. As a result of this movement, a vast number of sophisticated contracts executed in the country have set forth arbitration as the chosen mechanism for dispute resolutions.