Part 2 Specific Issues of Arbitration in Brazil, 6 Conservatory and Interim Measures

Abstract

This chapter addresses conservatory and interim measures. Not differently from other jurisdictions, the Brazilian legal framework up until the Brazilian Arbitration Law (BAL) was enacted in 1996 did not grant arbitrators powers to issue conservatory and interim measures. The prohibition derived from the perception that provisional relief sought by the parties required a coercive power that arbitral tribunals lacked by the very nature of their jurisdiction. With the development of Arbitration and a better understanding of the method, the BAL of 1996 was enacted, and it revoked the abovementioned limitation imposed to arbitral tribunals in the Civil Procedure Code (CPC). In 2015, the BAL was revised, and articles 22-A, 22-B, and 22-C included express provisions on (i) the possibility of requesting conservatory and urgent measures to national courts before the constitution of the arbitral tribunal; (ii) the arbitral tribunal's powers to grant such measures after its constitution; (iii) arbitral tribunal's powers to uphold, amend, or revoke an interim measure granted by national courts; and (iv) the cooperation between national courts and arbitral tribunals in case of non-compliance in the course of the proceedings. It is therefore a system comprised of the non-concurrent competence between national courts and arbitrators.