Part 2 Specific Issues of Arbitration in Brazil, 7 Non-signatories

Abstract

This chapter studies situations under Brazilian law in which a non-signatory may be bound by an arbitration agreement to which it was not originally a party. It also discusses relevant principles in Brazilian Contract Law and Brazilian Arbitration Law, as well as the case law of the Brazilian Superior Tribunal of Justice (STJ). The STJ plays a vital role in the Brazilian legal system, as it (i) sets out the jurisprudence to guide the lower courts; and (ii) amends and harmonizes the decisions of the lower courts, where needed. The STJ also retains exclusive jurisdiction to recognize and enforce foreign awards in Brazil. When does Brazilian law become relevant to ascertain questions of binding a non-signatory to arbitration? The law applicable to the arbitration agreement is the relevant law for the purpose of deciding whether (and in which circumstances) a non-signatory can be bound to arbitration. In situations where the parties have agreed that the law applicable to the arbitration agreement is the law of Brazil, the issues of (i) whether a non-signatory can be compelled to arbitrate or (ii) whether a non-signatory can intervene in an arbitral procedure will, of course, be tested against this law.