Doing Business in Brazil

22. Arbitration in Brazil


In Brazil, the use of arbitration as an alternative means of dispute resolution was regulated by Law No. 9.307/1996 (“Brazilian Arbitration Law”), characterized by reflecting the principles established by the UNCITRAL Model Law (United Nations Commission on International Trade Law). Subsequently, the Arbitration Law underwent a substantial alteration by Law No. 13.129/2015, and, still, at the same time, the new Brazilian Code of Civil Procedure enacted in Brazil (Law nº 13.105/2015) recognized and admitted the use of arbitration.

Therefore, since the enactment of the Arbitration Law, its use has grown each year in the country, which has also been driven by the excessive delay in resolving disputes submitted to the Judiciary, the lack of expertise on the part of the judge and the publicity of judicial proceedings, except for exceptional cases of secrecy.

As the arbitration institute was consolidated and its decisions were widely recognized by the Courts, the parties began to have legal certainty to include arbitration clauses in the contracts to which they were parties, encouraged by the rendering of decisions in a shorter period of time, by arbitrators specialized in the matter that was submitted to them, and also with the confidentiality of the decisions (except for arbitrations involving Public Administration and those involving publicly traded companies).

Over the years, some Arbitration Chambers stood out in the country, such as the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (“CAM-CCBC”) and ICC Brazil, affiliated to the ICC International Court of Arbitration, considered the arbitration institution with the greatest international projection.

In addition, some situations require submission of the dispute to specialized arbitration institutions, such as the Market Arbitration Chamber, whose Regulations indistinctly oblige the following participants of BOVESPA’s Special Listing Segments: i) BOVESPA; ii) the Companies; iii) the Controllers; iv) the Administrators; v) the members of the Fiscal Council; and vi) Investors, provided that they have voluntarily agreed to the Regulation by signing the Term of Consent, pursuant to item 5.2.2 of the Regulation.

Within the scope of the electricity sector, with regard to the dispute resolution between the agents that are part of the Chamber of Electric Energy Commercialization (“CCEE”), between themselves and between them and the CCEE, they must be resolved by arbitration, according to Law No. 10.848/2004. In fact, since October 2021, CCEE approved the plurality of Arbitration Chambers for the resolution of disputes, provided that they are previously approved and accredited by the CCEE. Currently, CAM-CCBC, ICC Brazil, the Chamber of Conciliation, Mediation and Arbitration Ciesp/Fiesp and the FGV Chamber of Mediation and Arbitration are some examples of arbitral institutions duly homologated and accredited by the Board of Directors of CCEE.

Another important improvement of arbitration in Brazil regards the possibility of adopting the arbitration clause in agreements entered into with the Public Administration, and, in this case, the arbitration would not proceed in secrecy (in order to respect the constitutional principle of publicity according to the article 37 of the Federal Constitution); could not be judged by equity (due to the principle of legality) and the seat of the arbitration must be in Brazil.

Over the years, the use of arbitration has also been extended to disputes of lesser value, such as those involving lease agreements, consumer relations and labour claims.

Driven by the COVID-19 pandemic, some of the main arbitration chambers in the country, such as the aforementioned ICC and CAM-CCBC, adjusted their arbitration rules to allow written communications relating to the arbitration procedure to be carried out in electronic format (unless otherwise agreed by the parties, in the case of CAM-CCBC), as well as holding hearings in a remote format. The recent ICC Arbitration Rules came into effect on January 1, 2021, while the new CAM-CCBC Rules were approved by its Advisory Board on August 1, 2022.

As can be seen, the use of Arbitration in Brazil has grown over the years and there is no doubt that such evolution is due not only to the recognition of the institute by the Judiciary, but also to the excellent preparation of the main Chambers and Centers of Arbitration within the country. In cases of foreign arbitral awards (issued outside Brazilian territory), it is important to highlight that Brazil has been a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) for more than twenty years, as per the Decree No. 4,311, of July 23, 2002.

Authors: Fabiana Videira and Carlos Lira

De Luca, Derenusson, Schuttoff & Advogados

Rua James Joule, 92 – 6th floor – Brooklin

04576-080 – São Paulo – SP

Tel.: +55 (11) 3040 4040

[email protected]