Brazilian Arbitration Law Research Articles

The Arbitration Law in Brazil and the need to update

Arbitration is the oldest institute used by society as a means of resolving conflicts. In Brazilian law, arbitration has already been provided for in Philippine Ordinances since the period of colonization. Despite being provided for in legal standards, arbitration only underwent significant regulation in 1996 with the publication of Law nº 9.307/1996, which represented a major advance at that time. However, new improvements occurred with the sanction of Law nº 13.129/2015, which implemented, among other improvements, the use of arbitration in direct and indirect public administration. The changes to the aforementioned law brought great advances, expanding its applicability to various activities or matters, which provided Brazilian society with more options for quickly resolving conflicts. In this context, through bibliographical and documentary research, the objective of this paper is to present the main bills that expand the use of arbitration, and thus demonstrate the need to update Brazilian arbitration law, which could become one of the most modern of the world. The bills in progress expand the use of the arbitration institute to the most diverse activities, from private law to public law, including conflicts related to family law, consumer law and tax relations. Therefore, the approval of these projects by the National Congress is urgent, as Brazilian society needs alternative means to resolve the most varied controversies.

ARBITRAGEM E ADMINISTRAÇÃO PÚBLICA

Este artigo tem por escopo examinar a disponibilidade dos direitos titularizados pela Administração Pública como requisito para o emprego da arbitragem como meio de resolução de conflitos. A partir da análise do desenvolvimento histórico dos diplomas legais que versaram sobre a matéria no Brasil, situa-se a problemática hoje enfrentada pelos operadores do direito, após as recentes alterações da Lei de Arbitragem. Com amparo na (i) dissociação entre indisponibilidade do interesse público e (in)disponibilidade dos direitos da Administração Pública e na (ii) concepção de que o princípio da legalidade é consequência (e não causa) da indisponibilidade do interesse público, conclui-se que as recentes alterações legislativas foram capazes de aumentar o rol de litígios da Administração que seriam arbitráveis. A identificação da arbitrabilidade dos litígios, dada a impossibilidade de concretização prévia, precisa e absoluta de conceitos jurídicos indeterminados, deverá ser feita caso a caso e dependerá das pretensões que serão veiculadas perante o juízo arbitral.

Existência e Validade da Cláusula Compromissória Não Escrita: Interpretação Extensiva do Artigo 4º, § 1º, da Lei de Arbitragem, à Luz do Direito Brasi

The present essay confronts the limitations imposed by Brazilian Arbitration Law as to the existence of a written arbitration agreement in order for it to be valid. The proposed approach takes as starting point the factual phenoms that cause for the subjective or objective extension of the arbitration agreement, defying the limits of the law. It transits through comparative law (laws, International Conventions, soft law and doctrine), in comparison to Brazilian law, in order to define how the theme is handled by overseas rules, especially in view of the dynamicity of practices on international trade, as well as in light of the new technologies and new forms of contracting. It tries to define the nature of the demand for a written arbitration agreement as a matter of ad substantiam tantum or ad probationem tantum. Finally, on a new comparative approach, it aims to bring together the concepts of domestic good faith with the common law estoppel, as a source for the solution of conflicts generated in cases of non-written agreements. Recent decisions by the Superior Court of Justice (STJ) directly or indirectly related to the issue are present along the text and corroborate the conclusions reached.

Generic variation across legislative writing. A contrastive analysis of the UNCITRAL Model Law and Brazil's Arbitration Law

The nature of legislation is to control human relations and actions by words. Legislative writing displays relative uniformity though, as a genre, some variations are allowed across legal systems, as in the case of arbitration laws. This article focuses on the generic variation of two arbitration laws: the UNCITRAL Model Law on the International Commercial Arbitration (hereafter UNCITRAL) and the Brazilian Arbitration Law 9.307/1996 (hereafter BAL). Arbitration is an alternative form of confl ict resolution based upon the free will of the parties to invest arbitrators, (not the judiciary) with the jurisdiction to settle disputes in a contract of commercial nature. The claim is that the analysis (at surface level) of textual organization and legislative style in the data cannot account alone for an explanation of how legislative information is functionally realized in order to achieve its communicative intent. To explain this we, therefore, also consider how legislative information is packaged by means of some textualization devices (qualifi cational insertions, binomial and multinomial structures and textual-mapping) and conclude by showing how recontextualization is realized in the data by means of generality, fuzziness and vagueness of terms and expressions.

Princípio Compétence-Compétence: Amplitude, Limitações e Aplicabilidade na Arbitragem Comercial

This article aims to present the best legal solutions to cases where there is reasonable doubt about the scope of the arbitration clause. The principle of Competence - Competence establishes the prerogative of the arbitrators to conduct the initial analysis of its jurisdiction and is observed in art. 8o of the Brazilian arbitration law. Nevertheless, there are some occasions when the principle of Competence -Competence is relativized, sometimes by the arbitration law, sometimes by legal precedentes, wich enforces, in some areas, the state jurisdiction. Regarding corporate law, instead, the Courts have strength to give maximum effect to the principle of Competence - Competence.

Extensão Objetiva da Cláusula Arbitral

ABSTRACT: The growth and strengthening of arbitration in Brazil after the ruling by the Brazilian Supreme Court on the proceedings number SE 5206, through which the en banc Court ruled for the constitutionality of several sections of the Brazilian Arbitration Law (Federal Law number 9.307, dated September 23rd, 1996) raised many and new challenges for the consolidation of arbitration as a trustworthy dispute resolution alternative. This work analyses one of the polemic questions that arose, which is the possibility of extension of the objective effects of the arbitration clause in linked contracts. The theme regards the enforceability per relationem of the arbitration clause which is not expressly provided in a determined and specific contract, although it integrates several linked contracts which compose a complex relationship between the same parties. Both arguments which ground the favorable and unfavorable opinions concerning the extension of the objective effects of the arbitration clause were raised and the research sought to identify which of those arguments better adjust to Brazilian Law. The conclusion is for the possibility of the extension of the objective effects of the arbitration clause concerning linked contracts in complex economic relationships between the same parties.

Conflito de Competência em Matéria de Arbitragem

ABSTRACT: This paper addresses the conflict of jurisdiction in arbitration from the perspective of Brazilian law. This subject is important due to its close relationship with fundamental principles of the arbitration system, such as competence-competence, and it became the issue of intense discussions after recent decisions by the Brazilian Superior Court of Justice. More specifically, this paper approaches the positive and negative aspects of the conflict of jurisdiction between (i) arbitrators; (ii) arbitral institutions, focusing on the analysis of the precedent CC STJ 113.260/SP; and (iii) arbitrators and judges; excluding from its scope discussions about consolidations, international lispendens and related topics. It discusses the model of competence-competence adopted by Brazil and other characteristics of arbitration to understand the pathology of the positive conflicts of jurisdiction. Taking into account features of civil procedure, as principles that outline the rules of conflict of jurisdiction between judges (neutrality and hierarchy), and of the arbitration system, as the autonomy of arbitration and the arbitrator's position in relation to the organizational chart of the Judiciary Branch, this paper concludes that the contribution of the state court in the resolution of conflicts of jurisdiction involving arbitral proceedings is inadequate. It ponders on some solutions to the proposed problems, accepting the use of the action of article 7 of the Brazilian Arbitration Law for cases in which there was no positive acceptance of jurisdiction by the arbitrators. Ultimately, it states the inconvenience of opening state courts to discussions about the jurisdiction of arbitrators during arbitral proceedings.

Arbitragem e “Parte Fraca”: a Questão das Relações de Consumo

ABSTRACT: The concept of arbitrability refers to the ability of certain disputes to be submitted to arbitration. Several are the divergences regarding the themes that can use in Brazilian law arbitration to solve the conflicts originating from contractual relations. Among these themes, topping of importance in the national scenario is the question concerning the possibility of consumer disputes to be submitted to arbitration. In view of the dynamism of consumer relations at present, it is necessary to search for alternative and effective mechanisms of dispute resolution, among which stands out the arbitration. However, the use of this mechanism for the resolution of consumer disputes in Brazil is denied due to the barrier imposed by article 51, VII, of Brazilian Consumer Code that considers abusive the clause providing for the compulsory use of arbitration, despite of the fact that article 4º, § 2º, of Brazilian Arbitration Law allows the use of this mechanism in adhesion agreements. This article, based on foreign and domestic doctrine and jurisprudence on the theme, quest demonstrate the feasibility of the use of arbitration in solving consumer disputes.

A Ética dos Árbitros

ABSTRACT: This article is about the need of precise and objective rules on the conduct of ethics applicable to arbitrators, describing the importance of the determination of such conduct and the lack thereof in Brazil, bringing the provisions of the Brazilian Arbitration Law, Brazilian and foreign arbitral and professional institution rules, and the standard set forth in international arbitration on this matter.

A Responsabilidade Civil do Árbitro

ABSTRACT: The increasing importance of arbitration in Brazil has as a natural consequence a greater importance to the arbitrator liability topic. Not only the fact that arbitration is mostly used as a single instance dispute resolution method but also the high complexity levels and figures involved in arbitration proceedings count for the huge importance and responsibility of the arbitrator's activity. Although the Brazilian arbitration law has expressly given the arbitrators the same treatment as the one given to Court judges for criminal law purposes, there is no specific provision regarding the civil liability of arbitrators. Therefore, the article approaches the subject relating to the civil liability of arbitrators with a comparative perspective in relation to other parts of the world, particularly those where arbitration has been practiced for a longer period of time. The paper takes into account both the contractual and jurisdictional aspects of the arbitrators' activity, seeking to analyze the impacts of these aspects within the civil liability sphere.

Os Diferentes Níveis de Ordem Pública sob uma Perspectiva da Jurisprudência Brasileira em Arbitragens Doméstica e Internacional

ABSTRACT: The Brazilian Arbitration Law (the BAL), in its art. 2, paragraph 1, refers to public policy as a limit, to which arbitrators must pay heed, on the free exercise of volition by the parties. In art. 39, II, the BAL cites public policy as grounds for rejection of an application for recognition of a foreign arbitral award by Brazilian courts (specifically the Superior Court of Justice - STJ). Public policy is therefore of major importance in arbitration but it is difficult to establish its limits and scope. The author of this paper therefore argues that the doctrine of public policy should be applied in three distinct levels, with the arbitrator/judge to decide on the relative weight of each level in accordance with the nature of the dispute in hand. The first part of this article seeks to define the concept of public policy and address its application to domestic and international arbitrations particularly those which apply foreign (i.e. non - Brazilian) law. The second part deals with public order in relation to the recognition of foreign arbitral awards, drawing on case law from the STJ on the issue.

An Examination of the Law and Practice of International Commercial Arbitration in Brazil

This article focuses on the legal framework of international commercial arbitration in Brazil. It provides an examination of the changes introduced by the Brazilian Arbitration Law, the international conventions ratified by Brazil and the case law that is being developed in the country in relation to arbitration. Brazil used to be known for its remarkable hostility towards arbitration; however, this is no longer the case. The legal framework of international commercial arbitration in Brazil has gradually changed since the 1990s, when Brazil approved a modern arbitration law. Since then, several steps have been taken to enable Brazil to become a real player in the international arbitration ‘field’.

O Processo de Composição do Tribunal Arbitral Internacional e o seu Funcionamento

O presente trabalho vem a delinear, sob forma objetiva, o efetivo escopo de um Tribunal Arbitral, ponderando as suas características e o comprometimento com as partes que a elegem. Apresenta o procedimento e o processo de como se constitui um tribunal dessa espécie, assim como as vantagens existentes quando da sua utilização. Enfatiza, de plano, a escolha dos apreciadores do juízo arbitral, assim como a análise circunstancial sobre a incidência da Lei de Arbitragem brasileira à luz do Direito supranacional. Enaltece a viabilidade jurídica (segurança e validade) que o instituto arbitral expressa, concernente às disposições principiológicas que dele decorrem. Ainda, descreve, de maneira esmiuçada, a forma de como o Tribunal Arbitral se compõe, sua competência, prerrogativas e finalidades, bem como do funcionamento efetivo, no plano do Direito Internacional Privado.