Arbitration

Last verified on Tuesday 20th March 2018

Brazil

Fernando Eduardo Serec, Antonio Marzagao Barbuto Neto, Pedro Bento de Faria and Clara Kneese de Moraes Bastos
TozziniFreire Advogados

    Legislation

  1. 1.

    Which legislation governs the enforcement of international commercial arbitration awards and arbitral agreements in international business contracts, and international commercial arbitration proceedings?

  2. The Brazilian Arbitration Act (Law No. 9,307/96), which was modified in 2015 and complemented by Law No. 13,129/15, is the sole basis for analysing arbitral agreements in international business contracts and international commercial arbitration proceedings seated in Brazil.   

    The enforcement of international commercial arbitration awards are governed by the Brazilian Arbitration Act, the Civil Procedure Code (Law No. 13,105/15) and by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), which Brazil ratified in 2002. Articles 216-Ato 216-N of the Court Rules of the Superior Court of Justice (STJ) further regulate the matter.

    Under Brazilian law, any awards issued outside the Brazilian territory are considered foreign arbitration awards. To be enforceable in Brazil, foreign awards must only undergo recognition proceedings before the STJ. No prior recognition by the country of origin is required. 

  3. 2.

    Has the UNCITRAL model arbitration law been adopted in your jurisdiction? 

  4. The Brazilian Arbitration Act is largely based on the UNCITRAL Model Law and the Spanish Arbitration Law of 1988, while also being heavily influenced by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitration Awards (the New York Convention). While the UNCITRAL Model Law is the basis for the Brazilian Arbitration Act, Brazil does not officially adhere to it, for which reason Brazil is not part of the official list of Model Law countries. Nonetheless, some provisions of the Brazilian Arbitration Act are unique to the Brazilian legal system and therefore differ considerably from the UNCITRAL Model Law.

    However, some of the most relevant principles of Brazilian arbitration can be traced back to Model Law provisions, such as:

    • the formal and substantive requirements of arbitration agreements;
    • the principle of Kompetenz-Kompetenz; and
    • the possibility of obtaining judicial injunctive relief, especially for interim and conservatory measures.

    Conventions

  5. 3.

    Is your jurisdiction a party to both the New York Convention and the Panama Convention? Is it a party to any other conventions or treaties governing international commercial arbitration agreements, awards or proceedings? 

  6. Brazil is a party to both the New York Convention and the Panama Convention. The former was ratified on 23 July 2002 (Decree No. 4.311) and the latter on 9 May 1996 (Decree No. 1,902).

    Brazil is also a party to:

    • the Geneva Protocol on Arbitration Clauses of 1923;   
    • the OAS Inter-American Convention on International Commercial Arbitration of 1975;
    • the OAS Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards (the Montevideo Convention); and
    • the MERCOSUR Protocol on Jurisdictional Assistance Regarding Civil, Commercial, Labour and Administrative Matters of 1992 (Las Leñas Protocol).
  7. 4.

    Is your jurisdiction a party to the ICSID Convention? Have steps been taken to renounce the Convention or withdraw from ICSID? 

  8. Brazil is not a party to the Washington Convention that established ICSID.

  9. 5.

    Is your jurisdiction a party to other conventions that directly affect the enforceability of arbitration agreements, rights or awards?

  10. Apart from the conventions mentioned in question 3, Brazil is not a party to any other multilateral treaties regarding the enforceability of arbitration agreements, rights or awards.

    Commercial arbitral agreements and arbitrability

  11. 6.

    Some jurisdictions have permitted parties to compel resolution of a dispute by means of arbitration only if the agreement to arbitrate was entered into after a dispute has arisen. Is a pre-dispute arbitration clause to resolve international commercial disputes by arbitration enforceable?

  12. Both pre-dispute arbitral clauses (cláusula compromissória) and post-dispute submissions to arbitration (compromisso arbitral) are valid and enforceable under the Brazilian Arbitration Act. While post-dispute compromissos are perfectly valid under Brazilian law, they are not necessary if the parties have executed a pre-dispute arbitral clause.

    Under Brazilian law, arbitration agreements are null when the person that executed the agreement does not have civil capacity to do so, or when the relevant agreement was signed in fraud. Arbitration agreements may also be voided in case of substantial mistake, wrongful conduct, coercion, state of peril, lesion or fraud against creditors.

    It is important to note that arbitration agreements may be considered pathological if the method for the appointment of the arbitrators cannot directly or indirectly be adduced from the terms of the agreement. In these cases, arbitration agreements are not directly voided, but the parties may be required to initiate court proceedings for the purposes of complementing the missing information.

  13. 7.

    What are the requirements for an enforceable arbitral agreement? 

  14. Pursuant to the Brazilian Arbitration Act, arbitration agreements must be made in writing and usually signed by the parties. However, signing may be waived if consent to arbitration has been unequivocally expressed in writing by other means, such as specific reference to the arbitration clause by email or fax.

    While arbitration clauses are only subject to the requirements above, post-dispute arbitral submissions must comply with specific formalities. The Brazilian Arbitration Act requires that an arbitration clause contain:

    • the full civil qualification, consisting of the full name, profession, document number and address of the parties;
    • the full civil qualification, consisting of the full name, profession, document number and address of the arbitrators or, if applicable, reference to the arbitration organisation that will appoint the arbitrators;
    • the subject matter of the dispute; and
    • the place where the award will be rendered.
  15. 8.

    Is there subject matter that is not legally subject to arbitration in the context of an international business transaction?

  16. Arbitration in Brazil can be used to settle disputes involving "negotiable rights of a pecuniary nature" (ie, not involving civil guarantees, family or certain labour rights) between parties at full legal capacity.

    The law also requires that arbitral clauses relating to contracts of adhesion (that is, where a standard-form contract is imposed on one party without the possibility of negotiating terms and conditions) must be in bold face type and specifically signed (initialled) by the adhering party (usually a consumer).

  17. 9.

    Are there any limits to the ability of a state or an instrumentality of the state to enter into an agreement to arbitrate in your jurisdiction? If so, under what circumstances may the state or its instrumentalities enter into such an agreement? Please describe the requirements that must be met for the state to enter into a binding arbitration agreement.

  18. Law No. 13,129/15 has modified the Brazilian Arbitration Act to allow specifically for state instrumentalities and administration organs (referred to as “direct and indirect administration”) to “use arbitration to settle negotiable rights of a pecuniary nature”. It should be noted, however, that this is quite a recent change, but case law has mostly allowed state entities to arbitrate disputes, while in some cases, such as case No. 537/2006 of the Union Court of Auditors (case Comercializadora Brasileira de Energia Emergencial – CBEE) and case No. 162874-3 of the Justice Tribunal of Paraná (Copel Case), jurisprudence has held that this ability is contingent on prior authorisation by specific legislation.     

    For matters involving public-private partnerships and public concessions, the 2004 Public-Private Partnership Law (the PPP Law), as well as the 2005 Amendment to the Concessions Law (the Concessions Law) and the Law regarding Concessions and Permissions related to Public Services (Law No. 8.987/95), have authorised the arbitration of disputes between public entities and private parties arising from transactions executed with the federal government under both statutes.

    Some public entities are specifically authorised by legislation to enter into arbitration agreements, such as the National Telecommunications Agency (ANATEL) (Law 9.472/1997), the National Petroleum Agency (ANP) (Law 9.478/97), The National Waterways Transportation Agency (ANTAQ), the National Roadway Transportation Agency (ANTT) (Law 10.233/2001) and the National Superintendency for Private Security (PREVIC) (Law 12.154/2009).

  19. 10.

    Does the law specify whether an arbitration will be in equity or under law if the parties do not expressly specify the nature of the arbitration in the agreement?

  20. While the Brazilian Arbitration Act, specifically provides that disputes may be settled by equity. It is generally understood that equity may only be applied if the parties expressly agree to doing so.

  21. 11.

    How does the law limit party autonomy with respect to the terms of an arbitral agreement? 

  22. Party autonomy is an underlying principle of Brazilian arbitration. However, the Brazilian Arbitration Act provides some broad, material limits to party autonomy, such as (i) the requirement that signatory parties must enjoy full capacity to consent to arbitration; and (ii) that the subject matter of the arbitration agreement, must relate to “negotiable rights of a pecuniary nature”, which means that non-negotiable rights, such as, but not limited to family, certain labour and regulatory matters, may not be decided through arbitration.

    Despite these limits, parties are free to arbitrate and tailor the arbitration agreement to their preference, to the extent that public policy and morality are not breached.

    Specifically in regard to the appointment of arbitrators, article 13 of the Brazilian Arbitration Act establishes that parties can nominate a sole arbitrator or a bench composed of an odd number of arbitrators. Should the parties nominate an even number of arbitrators, the arbitrators will choose, through majority vote, an additional panel member to act as chairman.

    While there are no specific requirements in the Brazilian Arbitration Act in respect of the personal characteristics of arbitrators (other than a bar against conflicts of interest under article 14), it is generally understood that arbitrators should be persons who enjoy full legal capacity and are trusted by the parties. Otherwise, the law does not provide any specific requirements as to education or professional experience.

    As regards arbitral institutions, under the Brazilian Arbitration Act, parties are free to choose any arbitral institution and arbitration rules, whether national or international (article 5).

    Finally, with regard to the seat in a foreign jurisdiction, Brazilian parties may choose a foreign seat, but the arbitral award rendered will be considered a foreign award under articles 34 and following of the Arbitration Act.

  23. 12.

    Under what circumstances does the law allow a non-signatory to an arbitral agreement to pursue a claim in an international arbitration against a party that signed the arbitral agreement?

  24. Despite a few isolated decisions, the current trend in Brazilian courts is to prevent non-signatories from participating in arbitration. In the specific scenario of a merger transaction, a decision rendered by the STJ enforced the arbitration agreement executed by a company that was later merged into another company. The STJ held that an arbitration agreement survives a company’s merger as the surviving company assumes all rights and obligations of the company merged into it, which includes any and all arbitration agreements executed prior to the merger.

    In such cases, the most used doctrines have been:

    • implied consent;
    • group of companies doctrine; and
    • connection of subject matter.
  25. 13.

    Under what circumstances does the law allow a signatory to an arbitral agreement to pursue a claim in an international arbitration against a party that did not sign the arbitral agreement?

  26. The Brazilian Arbitration Act does not specifically provide for the joinder of third parties not originally bound to the arbitration agreement. Legal doctrine mostly considers that third parties cannot join arbitral proceedings voluntarily or otherwise be compelled to do so.

    Case law is not unanimous in this respect, although it is unlikely that an arbitral tribunal or court will grant a request to bind a non-signatory third party. However, joinders have been allowed under the argument of:

    • implied consent;
    • group of companies doctrine; and
    • connection of subject matter.
  27. 14.

    Under what circumstances may a non-signatory to an arbitral agreement compel arbitration of a claim asserted against it in a court of law by a signatory of the arbitral agreement?

  28. Article 7 of the Brazilian Arbitration Act provides that, where a valid arbitration agreement exists and one of the parties refuses to engage in arbitration, the interested party may request the specific performance of the arbitration agreement by filing a motion to compel arbitration against the recalcitrant party before a competent court. The same remedy is available for a non-signatory, as long as the non-signatory party can show that the arbitration agreement underwent succession (for example, by substitution of a party to a contract) or extends to the non-signatory party (for instance, by showing a specific contractual relationship with the non-signatory).

  29. 15.

    Is there any law in your jurisdiction specifically governing the arbitrability of consumer or labour disputes?

  30. As regards consumer disputes, article 51, VII of the Brazilian Consumer Protection Code (Law No. 8.078/1990) provides that arbitration clauses in consumer contracts are null and void. However, the Brazilian Arbitration Act (article 4, § 2nd) provides specifically that arbitration clauses in standard form adhesion contracts, such as consumer contracts, may be valid if the clause is drafted in bold type face and the adhering party specifically signs the arbitration clause when executing the contract. Based on this provision, case law currently holds that arbitration of consumer disputes is valid to the extent that the contract complies with the formal requirements of articles 3 and 5 of the Arbitration Act and the consumer takes the initiative of starting arbitration or clearly expresses its agreement to arbitration, once started.

    Regarding labour disputes, Law-Decree No. 5.452/1943 provides that arbitration may be used as a dispute resolution method only in individual labour contracts, valued at least twice the maximum limit of the Social Pension General Regime. In addition, the employee must take the initiative to use arbitration or expressly consent to arbitration once started.

  31. 16.

    Does your jurisdiction provide for class-action arbitration or group arbitration? If so, are there any limitations to the arbitrability of such claims or requirements that must be met before such claims may be arbitrated? 

  32. There are no specific rules pertaining to class action arbitration or group arbitration in Brazilian law. In practical terms, however, this will ultimately depend on whether the subject matter is arbitrable and whether the parties have consented to arbitration. Brazilian law excludes from arbitration issues that are not subject to party autonomy, such as certain labour, consumer, criminal, antitrust and patent matters.

  33. 17.

    Are contractual waivers precluding arbitration of claims on a class-wide basis enforceable? Under what circumstances have such waivers been upheld or set aside by the courts?

  34. Class-wide arbitration is a recent and still a controversial matter in Brazilian arbitration, particularly owing to issues of objective arbitrability, consent and opt-in/opt-out presumptions applicable to class members.

    In practical terms, however, a waiver contained in a contract to the effect of precluding class arbitration is fully enforceable. As a result, class members would resort to the judiciary to adjudicate their disputes in lieu of arbitration, by virtue of the constitutional principles of access to justice and right of action under Brazilian law.

    There are no on-point precedents on this issue.

  35. 18.

    If the parties’ contract is silent on the issue of class-action arbitration, is class-action arbitration allowed under the law of your jurisdiction?

  36. Although there are no known precedents on the matter, class-action arbitration would be admissible in the absence of a specific contractual provision to that end, provided that all parties to the dispute are also parties to the contract and expressly consent to the arbitration.

  37. 19.

    Are foreign arbitral institutions without a physical presence in your jurisdiction authorised to administer arbitrations in your jurisdiction? Does the law require that a foreign institution be licensed under local law in order to administer an arbitration seated there?

  38. The Brazilian Arbitration Act grants the parties autonomy to freely choose procedural rules. Proceedings may be conducted ad hoc or through any domestic or international arbitration institutions, such as the ICDR, the ICC or the LCIA. Arbitral awards issued within Brazilian territory (regardless of the nationality of the arbitral institution) are enforceable in Brazil in the same manner as final judicial decisions. Enforcement occurs through ‘expedite collection proceedings’, designed to attach the debtor’s property, to satisfy the money award, whereby the judgment-debtor has very limited grounds to challenge the merits of the decision. By contrast, it is important to note that awards issued abroad must be submitted to recognition by the STJ prior to enforcement.

    Brazilian law does not require that foreign institutions be licensed in order to administer proceedings seated in Brazil.

    Arbitral institutions and arbitrators

  39. 20.

    Is an arbitral award issued in an arbitration seated in your jurisdiction under the auspices of a foreign institution (such as the ICC, ICDR, LCIA or similar institutions) vulnerable to challenge because it was issued under the auspices of a foreign institution?

  40. All awards issued within Brazilian territory are considered to be domestic awards, irrespectively of whether issued under the auspices of a domestic or foreign institution. As such, they are subject to the same grounds for challenge under Brazilian law (which are limited). The grounds for setting aside an arbitral award generally relate to issues of composition and jurisdictional powers of the arbitral tribunal, scope of the decision in relation to the arbitration agreement, the subject matter of the dispute and the validity of the arbitration agreement.

  41. 21.

    Does the law require that arbitrators in international arbitrations be citizens or residents of your jurisdiction?

  42. No, the law does not provide any citizenship or qualification requirements. Therefore, arbitrators in domestic and inter­national proceedings may be foreigners and non-lawyers.

    The 2004 PPP Law and the 2005 Amendment the Concessions Law authorise arbitration of disputes between public entities and private parties arising from transactions executed with the federal government under both statutes. However, while foreign arbitrators could adjudicate such proceedings, both the PPP Law and the Concessions Law require that proceedings be conducted in Brazil and in Portuguese.

  43. 22.

    Does your law require that arbitrators in international cases be lawyers? 

  44. No, the law does not provide any citizenship or qualification requirements. Therefore, arbitrators in domestic and inter­national proceedings may be foreigners and non-lawyers.

    The 2004 PPP Law and the 2005 Amendment the Concessions Law authorise arbitration of disputes between public entities and private parties arising from transactions executed with the federal government under both statutes. However, while foreign arbitrators could adjudicate such proceedings, both the PPP Law and the Concessions Law require that proceedings be conducted in Brazil and in Portuguese.

  45. 23.

    Does your jurisdiction provide immunity to arbitrators serving in an arbitration with its legal seat in your jurisdiction? Under what circumstances does such immunity apply or not apply? 

  46. There is no such immunity provided to arbitrators serving on a panel with its legal seat in Brazil.

  47. 24.

    Are the fees of foreign arbitrators serving in an arbitration seated in your jurisdiction subject to taxation?

  48. The fees of foreign arbitrators serving in a Brazilian-seated arbitration, if paid by a Brazilian company, are subject to a 15 per cent income tax to be withheld by the company (IRRF), plus 10 per cent in economic intervention tax (CIDE).

  49. 25.

    Must arbitrators in international arbitrations be independent and impartial? What is the legal standard governing conflicts of interest and disclosure by arbitrators in international arbitrations?

  50. The UNCITRAL Model Law has significantly influenced Brazilian arbitration law. To this end, the Brazilian Arbitration Act clearly adopts the "justifiable doubt" test in assessing conflicts of interests. Pursuant to the Arbitration Act, arbitrators must exercise their functions with impartiality, independence, competence, diligence and discretion and must disclose any facts likely to give rise to justified doubts as to their impartiality or independence. While the Arbitration Act does not contain strict standards for what arbitrators must disclose, the statute defers to the impediments or partiality standards provided in the Brazilian Code of Civil Procedure. Therefore, an arbitrator (like a judge) is prevented from deciding cases where:

    • the arbitrator or a spouse or relative is a party;
    • the arbitrator has already acted as advocate, expert or witness for one of the parties;
    • the party’s lawyer is the arbitrator’s spouse or relative; or
    • the arbitrator is a member of the management or board of directors of one of the parties.

    Furthermore, an arbitrator’s impartiality is compromised when:

    • the arbitrator is a close friend to or strongly dislikes one of the parties;
    • a party is the arbitrator’s (or his or her spouse or relative’s) debtor or creditor;
    • the arbitrator is an heir or employer of any of the parties;
    • the arbitrator received gifts from any of the parties or counselled one of the parties on the matter of the dispute; or
    • the arbitrator has an interest in the outcome of the dispute.
  51. 26.

    Will courts entertain requests to disqualify an arbitrator before the conclusion of an award? 

  52. Yes. Breaches of the duty to disclose can result in the annulment of a decision rendered by a (challenged) arbitrator, during or after arbitral proceedings. In one case, an arbitral award was annulled by the State Court of Appeals of Rio Grande do Sul because the arbitrator had advised one of the parties prior to the arbitration but failed to disclose this fact to the opposing party. Moreover, the STJ denied confirmation to a foreign arbitral award on public policy grounds when it was discovered that the chairman of the tribunal failed to disclose that his law firm had received significant legal fees from one of the parties during the arbitration.

    An arbitrator’s duty to disclose is therefore generally perceived as an indispensable requirement in Brazil. Furthermore, a Brazilian court, in deciding whether to set aside an award, will also take into consideration the parties’ awareness of the relevant facts and any prior attempts to challenge the arbitrator during the proceedings.

    Arbitral proceedings

  53. 27.

    Does the law require that arbitral proceedings seated in your jurisdiction be held in a specific language? 

  54. With the exception of the above-mentioned 2004 Public-Private Partnership Law and the 2005 Amendment to the Concessions Law, which require that arbitrations between public entities and private parties be conducted in Portuguese, arbitral proceedings may be conducted in any language.

  55. 28.

    Can foreign lawyers serve as advocates in arbitral proceedings in your jurisdiction? If so, can they do so alone or must a local lawyer serve as co-counsel? 

  56. Foreign lawyers are allowed to serve as advocates in arbitral proceedings in Brazil. In principle, there is no need for a local lawyer to serve as co-counsel, except for the purposes of advising on Brazilian law.

  57. 29.

    Are the fees of foreign lawyers earned for services rendered in connection with an arbitration seated in your jurisdiction subject to local taxation?

  58. If foreign lawyers are hired and paid by a company located outside of Brazil, such fees are not subject to local taxation. However, if foreign lawyers are hired and paid by a Brazilian-based company, the corresponding fees will be subject to a 15 per cent with­holding income tax (IR Fonte), and a two to five per cent tax on services (ISS) to be withheld by the Brazilian company, as well as a 10 per cent Tax on Royalties and Technical Services (CIDE/Royalties) and a 9.25 per cent Social Contributions on Imports.

  59. 30.

    In what circumstances, if any, does your law allow the consolidation of multiple arbitral proceedings into a single proceeding?

  60. There is no specific provision in the Brazilian Arbitration Act regarding consolidation of multiple arbitral proceedings, although some of the existing arbitral institutions in Brazil do provide specific rules to this effect.

  61. 31.

    Please describe common practice and usage in international arbitrations seated in your jurisdiction with respect to a party’s right to require an opposing party to produce documents pertinent to the dispute. 

  62. The Brazilian Code of Civil Procedure establishes a "catch-all" rule that allows for the production of any lawfully obtained evidence. Furthermore – and in line with the inquisitorial nature of Brazilian legal procedure – a judge (or arbitrator) may order a party to produce documents in its possession. Nevertheless, despite the broad scope of these rules, US-style discovery is typically not accepted. The Brazilian Arbitration Act – and most Brazilian institutional rules – grant arbitrators considerable latitude in ordering the production of evidence.

    Attorney and non-attorney privilege issues may also be relevant. Information deemed confidential is generally protected by law from disclosure and may only be revealed in extremely narrow situations.

    In order to avoid the possibility of an annulment due to breach of public policy, an arbitrator should abide by these rules when addressing discovery, particularly if enforcement is to be sought in Brazil.

  63. 32.

    Does the law impose a duty of confidentiality in arbitration? If so, on whom? 

  64. Law No. 13,129/15 inserted one provision into the Brazilian Arbitration Act concerning confidentiality, which provides that arbitrations involving state organs are subject to the principle of publicity, which means that, in principle, they are not confidential.

    Recent procedural decisions by popular arbitration chambers have considered that, while arbitrations involving state organs are public, publicity is limited and can only be extended to information regarding the existence of the arbitration and the parties involved. Therefore, the current understanding is that the parties’ specific claims and submissions in such proceedings are still confidential and may not be made public.

    However, because the norm is still recent, there is very little case law on the matter. Case Consórcio Arena Pernambuco v Governo de Pernambuco is a paradigm in this sense: the Centre of Arbitration and Mediation of the Chamber of Commerce Brazil-Canada decided that details may be disclosed to interested parties that submit a formal requirement to that end to the arbitral institution.

    With that exception, the Brazilian Arbitration Act does not provide specifically for confidentiality in any other form, leaving to the parties to agree in that respect. In practice, the overwhelming majority of arbitrations are confidential, since this is one of the main differentials arbitral proceedings and court litigation.

    Further, the arbitration rules of the most commonly used arbitration institutions contain default provisions providing that, unless otherwise agreed by the parties, proceedings will be confidential.

  65. 33.

    Does the law authorise third-party funding for international arbitration? Are there any ethical limitations imposed upon counsel to the parties that restricts the use of such funding?

  66. Although not specifically provided for in the Brazilian Arbitration Act, third-party funding is permitted in Brazil. Third-party funding is gaining some popularity in Brazil and the practice is to disclose the existence of a funder, so that arbitrators can conduct proper conflict checks.

  67. 34.

    Are there any mandatory national rules of professional ethics that apply to counsel in an international arbitration in your jurisdiction? If so, are those rules applicable to counsel from another jurisdiction participating in an arbitration in your jurisdiction? 

  68. Although under all circumstances Brazilian lawyers are bound to the ethical statute of the Brazilian Bar Association, the Brazilian Arbitration Act does not establish any specific qualification requirements for a party's counsel in arbitration.

    That is to say that, in arbitration, counsel is not required to consist of Brazilian qualified attorneys or even attorneys at all, pursuant to article 21, paragraph 3 of the Brazilian Arbitration Act. However, the Brazilian Bar Association Statute establishes that providing legal advice on Brazilian law is an exclusive prerogative of Brazilian qualified attorneys.

    Therefore, legal professional ethics statutes will not apply to non-lawyers or foreign lawyers acting as counsel in an arbitration, however if the latter provide advice on Brazilian law they could be found to have practised law without a licence, which could be construed as both an ethical and a criminal violation.

  69. 35.

    Are there any mandatory rules on oath or affirmation for witnesses testifying in an arbitration in your jurisdiction that have to be administered prior to their testimony? If so, what are they? 

  70. Although in Brazilian arbitration witnesses are not required to take any oaths, they are bound by law to tell the truth, under penalty of perjury. Article 342 of the Criminal Code describes the crime of providing false testimony as “making a false statement, denying or omitting the truth as a witness, expert, accountant, translator or interpreter in judicial or administrative proceedings, police inquiries, or arbitration”.

    In view of the criminal implications of providing false testimony, when inquiring a witness, most arbitrators will begin the examination by advising that witnesses of his or her legal obligation to tell the truth. Notwithstanding, the witness is bound by law to be truthful, regardless of any oath taken or warning given by the tribunal.

  71. 36.

    Are there restrictions in your jurisdiction on the interviewing of witnesses in anticipation of hearings or giving of testimony?

  72. Witnesses may be interviewed in anticipation of hearing and by way of a written testimony, pursuant to article 453 of the Civil Procedure Code. Also, witnesses who do not reside where the hearing takes place may be interviewed by videoconference.

    Court support for arbitration

  73. 37.

    Can arbitrators decide on their own jurisdiction? Is the principle of ‘Kompentenz-Kompetenz’ followed in the courts?

  74. The Brazilian Arbitration Act incorporates the principle of Kompetenz-Kompetenz, by ensuring the arbitrators are competent to decide disputes relating to "the existence, validity and effectiveness of the arbitration agreement, as well as the contract containing the arbitration clause". Brazilian courts have generally followed these principles and many judicial precedents confirm such practice.

  75. 38.

    Do the courts follow the principle of the independence and separability of the arbitration clause? 

  76. The Brazilian Arbitration Act expressly recognises the principle of separability of the arbitration clause, whereby challenges to the validity of the main contract will not affect the arbitration clause. This principle has generally been followed by Brazilian courts, particularly in association with the principle of Kompetenz-Kompetenz.

  77. 39.

    Are arbitral tribunals empowered to grant interim relief? If so, how is that relief enforced in the courts? 

  78. Law No. 13,129/15 brought a new chapter to the Brazilian Arbitration Act, which provides specifically for the concession of interim measures. The new law makes it clear that parties may request interim relief to judicial courts at any point before the arbitration is initiated. However, the effects of court-awarded interim relief will cease if the interested party does not start arbitration within 30 days from the date that the judicial decision comes into effect.

    Once arbitration is started, the Arbitral Tribunal will be empowered to maintain, modify or overrule the court decision.

    If interim relief is required after the start of arbitration, the parties may request such measures directly to the arbitral tribunal. Once the order is granted, if necessary, the arbitrators themselves will request the judicial court with jurisdiction over the matter to hear the underlying dispute and enforce the decision. In some cases, however, the party that obtains the interim or provisional relief from the arbitral tribunal may file a petition directly to the court seeking an enforcement order against the recalcitrant party, in order to preserve the effectiveness of the arbitral proceedings. 

  79. 40.

    Can arbitrators issue orders, subpoenas or use other legal processes to compel the production of evidence by a third party or compel a third-party witness to appear before them? If so, will a court lend its aid in enforcing such an order against a recalcitrant third party? Also, if arbitrators can issue orders, subpoenas or use other legal processes to compel the production of evidence by a third party or compel a third-party witness to appear before them, are there any limitations to their doing so? 

  80. Yes. The Brazilian Arbitration Act contains a specific provision authorising arbitrators to seek court assistance to compel a third-party witness to testify. Courts, as a rule, will not analyse the merits of the arbitral tribunal’s decision, but rather enforce it through the use of police force or any other applicable enforcement mechanism.

    Furthermore, with the New Code of Civil Procedure, arbitrators may request judicial assistance directly to the competent court through the “arbitral letter”. This instrument formalises the procedure for tribunals to request judicial assistance at any point during the proceedings, in order to enforce decisions or to obtain necessary coercive measures.

  81. 41.

    Can a party to an arbitration seek relief from the court to obtain evidence in aid of an international arbitration? What is the scope of such relief?

  82. Yes, the parties to an international arbitration may request court relief to obtain evidence from the opposing party, which might include the production of documents or witness testimonies. However, full "fishing expedition"-style discovery is highly unusual in Brazilian arbitration and courts will usually only entertain requests for the production of specific materials (see question 39).

  83. 42.

    Can a party in an international commercial arbitration seek interim or provisional relief from a court without first seeking relief from the arbitral tribunal?

  84. Parties are always allowed to seek interim or provisional relief from a court before the arbitral tribunal is constituted (please refer to question 38). Once formed, however, the arbitral tribunal has exclusive jurisdiction to grant these measures, which may be enforced through judicial assistance. Therefore, the Arbitration Act follows the same standard provided by article 28 of the ICC Rules of Arbitration.

    In a recent case before the Rio de Janeiro Court of Appeal (Itarumã Participações SA v Participações em Complexos Bioenergéticos SA – PCBIOS, Resp No. 1,297,974-RJ), the STJ ultimately decided that the national courts may interfere with the dispute only in temporary circumstances, such as when an arbitral tribunal is unable to act or has not yet been constituted. Once such circumstances cease to exist, the STJ held that the application for interim measures shall be immediately referred to the arbitral tribunal.

  85. 43.

    Have the courts issued injunctions enjoining arbitral proceedings from going forward? 

  86. The Copel case appears to be the only relevant arbitration anti-suit injunction in Brazil. While this isolated case ultimately settled, a recent decision rendered by the STJ in AES v CEEE demonstrates that the highest judicial authority on federal law issues is not amenable to anti-arbitration suits filed by mixed-capital companies that freely execute arbitration agreements. Furthermore, the most recent decision of the São Paulo State Court of Appeals in the CAOA v Renault saga, an attempt by the former distributor of Renault vehicles in Brazil to circumvent an unfavourable foreign arbitration award, clearly demonstrates the hostility of Brazilian courts towards injunctions enjoining arbitral proceedings from going forward. These recent precedents have clearly positioned Brazil as an arbitration-friendly jurisdiction.

  87. 44.

    Does the law provide that post-award interest accrues on an unpaid arbitral award? 

  88. There is no specific provision in the Brazilian Arbitration Act regarding post-award interest, which is usually stated in the arbitral award itself. Nevertheless, the parties to an arbitration may request a claim to this effect.

  89. 45.

    Is an arbitral tribunal empowered to award attorneys’ fees to the prevailing party or is that power reserved to the courts?

  90. Arbitral tribunals are empowered to award attorney fees to the prevailing party as long as the parties have expressly agreed to that in the relevant arbitration agreement. While costs are in effect what operate arbitral proceedings (including the arbitrators fees), legal representation is not an essential requirement under the Arbitration Act. Thus, the lack of attorney’s fee will not prevent an award from being rendered.

  91. 46.

    Is an arbitral tribunal empowered to award punitive or exemplary damages? Is the arbitral tribunal empowered to award interest? 

  92. Punitive damages are not admissible in Brazilian law.

    Awards - content

  93. 47.

    What are the grounds for challenging or vacating an international award issued in an arbitration seated in your jurisdiction? 

  94. All awards issued within Brazilian territory are considered to be domestic, irrespective of whether the underlying dispute has an international scope. According to the Brazilian Arbitration Act, domestic awards are directly enforceable and do not require judicial recognition by Brazilian courts. In this sense, an arbitration award is directly enforceable and not subject to reviews on merits.

    It is important to note, however, that article 32 of the Arbitration Act provides for situations where awards rendered in Brazil may be annulled. That is the case when:

    • the arbitration agreement is null and void;
    • the arbitrators lack jurisdiction;
    • the award fails to provide the grounds for the decision or does not comply with certain formal requirements;
    • the award exceeds the scope of the arbitration agreement;
    • the award fails to decide the whole dispute;
    • the award was rendered through unfaithfulness, extortion or corruption;
    • the award was made after any time limit required by the submission to arbitration; or
    • the arbitrators are biased or there is a failure to guarantee certain minimum procedural guarantees.
  95. 48.

    Is “lack of reasonableness”, manifest disregard or a mistake in the application of the substantive law to the dispute of an international award grounds to vacate it? 

  96. Brazilian courts have great respect for arbitration and will only annul arbitral awards in the limited grounds listed in article 32 of the Brazilian Arbitration Act (discussed above). “Lack of reasonableness” has never been invoked by a Brazilian court to vacate an award. However, if the arbitrators exceed their powers as defined by the arbitration clause (for example, ignoring the applicable law), courts may indeed annul the respective arbitral award. 

  97. 49.

    Have international awards rendered in your jurisdiction been vacated on the grounds of "public policy"? If so, how has the "public policy" ground for vacating an award been interpreted in your jurisdiction?

  98. Public policy is not contemplated within the grounds to vacate a domestic arbitral award, but may be invoked to deny confirmation of a foreign arbitral award (ie, award rendered outside the Brazilian territory). The treatment of public policy by Brazilian courts is discussed in questions 55 and 56.

  99. 50.

    What is the period of time a party has to challenge such an award after its issuance?

  100. An annulment action must be filed within 90 days after official notification of the arbitration award.

  101. 51.

    Please describe any recent significant experiences or cases that illustrate the attitude of your courts towards the annulment of international awards rendered in your jurisdiction.

  102. Brazilian courts continue to maintain a pro-arbitration approach when reviewing annulment actions, ie, actions to vacate arbitral awards rendered within the Brazilian territory. A recent study conducted by the Brazilian Arbitration Committee (CBAr) concluded that Brazilian courts rarely annul arbitral awards; in the rare situation when they do, the grounds are consistent with article 32 of the Brazilian Arbitration Act and usually deal with the nullity of the arbitration clause itself. That was the case, for example, where the dispute resolution clause provided for a “mediation” instead of an arbitration.

  103. 52.

    Do the courts consider themselves empowered to vacate an arbitral award rendered in another jurisdiction?

  104. No. The CAOA v Renault litigation is an interesting example of the São Paulo State Court of Appeals’ refusal to vacate an arbitral award rendered outside Brazil. After an unfavourable arbitral award rendered in New York, CAOA, the former distributor of Renault vehicles in Brazil, filed a lawsuit before a court in São Paulo seeking to annul the foreign arbitral award prior to its confirm­ation by the STJ. The Court of Appeals, however, rejected CAOA’s attempt to bypass the confirmation proceedings to annul the New York arbitral award.

    Awards enforcement

  105. 53.

    May parties waive all court review of an arbitral award rendered in your jurisdiction (or restrict or expand the scope of that court review)?

  106. Parties may neither waive their right to seek vacatur of the arbitral award, nor restrict or expand the scope of court review.

  107. 54.

    Please describe the process for enforcing an arbitral award rendered in another jurisdiction.

  108. The Brazilian Arbitration Act establishes that for an arbitration award to be recognised and enforced in Brazil, it shall only be subject to the confirmation proceedings before the STJ. The award does not have to be recognised by the courts of the seat before being submitted to the STJ. Therefore, an application for confirmation should contain the original foreign arbitration award or a certified copy thereof, duly notarised by the Brazilian consulate – or by the Apostille Convention – and translated into Portuguese by a sworn translator in Brazil, as well as the original arbitration agreement or a certified copy thereof, duly translated into Portuguese by a sworn translator, proof that the party was served of process in the proceeding and that the final decision became res judicata.    

    The standards for the enforcement of a foreign arbitration award in Brazil are consistent with article V of the New York Convention. According to the Brazilian Arbitration Act, the enforcement of a foreign arbitration award can only be denied if:

    • the parties to the arbitration agreement lack capacity;
    • the arbitration agreement is invalid under the applicable law or the law of the seat;
    • the respondent was not given proper notice of the appointment of the arbitrator or of the arbitration, or was otherwise unable to present its case and was unable to exercise its right of defence;
    • the award exceeds the limits of the arbitration agreement;
    • the commencement of the arbitration proceeding was not in accordance with the arbitration agreement;
    • the arbitration award is not binding on the parties, or has been annulled or suspended by a court of the seat of arbitration;
    • the object of the dispute is not arbitrable under Brazilian law; or
    • the award violates Brazilian public policy.

    The STJ’s internal rules authorise the court to issue preliminary injunctions during confirmation proceedings, such as freezing assets while an application for confirmation is pending, and granting partial recognition to foreign arbitration awards. Once the foreign arbitration award is confirmed by the STJ, the judgment creditor is entitled to enforce the now "nationalised" award in the same way as a domestic award, that is, before a competent first instance judicial court. While review of the merits is prohibited at this stage, foreign awards may be challenged on very limited grounds by the judgment debtor.

  109. 55.

    Assuming that the award is covered by a convention applicable in your jurisdiction, how long does it take to obtain an order of enforcement in the first instance? How long does it take for the enforcement process to run its full course through to the last instance? 

  110. Foreign arbitral awards are recognised and enforced in accordance to the terms of the New York Convention. As the Convention constitutes the only international treaty for the enforcement of foreign arbitral awards, exequatur before the STJ basically follows the treaty. Exequatur is a rather straightforward process, which lasts on average eight to 12 months. The party against whom exequatur is sought may challenge the recognition of the award on some very specific and limited grounds, in which case confirmation may take longer than two years.

    Once the STJ grants recognition, the now "nationalised" award will be remitted to a lower court, usually in the jurisdiction where the debtor’s assets are located or in the jurisdiction originally competent to examine the matter. At this stage, ordinary enforcement proceedings are installed and the debtor’s assets may be attached to guarantee payment of the award. Enforcement lasts on average six months to one year, adding to a total eight to 26 months between filing for recognition and obtaining enforcement.

  111. 56.

    Please compare how long it takes to enforce an arbitral award rendered abroad with how long it takes to domesticate a foreign judgment.

  112. The time frame to recognise a foreign arbitral award is basically the same concerning the confirmation of foreign judgments. On average, recognition takes from eight to 12 months (sometimes longer depending on the complexity of the case and challenges to the award). Additionally, once the foreign award or judgment is recognised by the Brazilian judiciary (STJ), it will be conferred the same legal status as judgments rendered by domestic courts and will thereon be enforceable through ordinary collection proceedings, the duration of which may vary greatly, depending on where enforcement will be sought.

    During this last stage, the attachment of assets occurs. The debtor may still challenge the enforcement, albeit under very limited circumstances. As a rule, the filing of a defence by the debtor does not stay the collection of what was awarded. However, the court may enter a stay order if a specific request is made by the debtor and the court understands that the request is justified, especially when he debtor might suffer "irreparable economic harm".

  113. 57.

    Please describe some significant recent experiences with the enforcement of foreign arbitral awards.

  114. In a widely publicised decision rendered on 19 April 2017, the STJ held that an arbitrator’s failure to disclose material facts affecting his independence and impartiality precludes the confirmation of the respective arbitral award in Brazil, as it violates the national public policy.

    The case stemmed from the sale of the Ometto sugar cane and ethanol business to the Spanish company Abengoa. The Spanish company commenced arbitration proceedings under the auspices of the ICC, in which it basically sought damages arising from seller’s alleged misrepresentation concerning the crushing capacity for one of the mills.

    In a split decision, a panel of three arbitrators seated in New York, which was required to apply Brazilian law to the dispute, found in favour of Abengoa and awarded the Spanish company over US$110 million in damages.

    The only member of the arbitral tribunal knowledgeable in Brazilian law – a respected Brazilian attorney – agreed with the liability portion of the decision, but disagreed with the calculation of damages made by his co-arbitrators. The Brazilian jurist stated that the award (roughly one-third of the entire purchase price) violated the Brazilian law canon requiring damages to be measured by the extent of the injury actually suffered.

    Shortly after the arbitral awards were rendered, it was discovered that the chairman of the arbitral tribunal failed to disclose that his law firm had received more than US$6 million in legal fees from Abengoa during the course of the arbitration. Although denying any knowledge of such relationship – attributing his ignorance to a “regrettable administrative error” during his conflicts check – the chairman resigned days before the ICC would decide the challenge to his independence and impartiality. The new arbitral tribunal, however, maintained the multi-million arbitral award in favour of the Spanish company.

    By an 8 to 1 decision, the STJ held that “the chairman’s failure to disclose to the parties objective elements that compromise his impartiality and independence under Brazilian law prevents the confirmation of the respective awards in this country”. The court also found that the arbitrators exceeded their authority under the arbitration clause by awarding damages that are inconsistent with Brazilian law.

  115. 58.

    To what degree has “public policy” been a ground to refuse enforcement of an international award rendered abroad? 

  116. The STJ has a clear pro-arbitration position on foreign arbitral awards, as it confirms most of the foreign decisions. The court appropriately exercises restraint in analysing the merits of cases already decided by arbitral tribunals seated abroad.

    However, the STJ does not rubber-stamp all decisions submitted for confirmation.  Consistent with article V(2)(b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, the Brazilian Arbitration Act specifically authorises the STJ to refuse confirmation of awards that violate the national public policy. In other words, awards that violate fundamental principles of Brazilian law will not be recognised in this country. 

    The STJ rejects most public policy defenses as an undue attempt to re-litigate the matter.  It is only in those rare circumstances, in which fundamental principles of Brazilian law are threatened, that the STJ interferes. That was exactly the case in the Abengoa v Ometto dispute discussed in question 55, in which the STJ held that “the chairman’s failure to disclose to the parties objective elements that compromise his impartiality and independence under Brazilian law prevents the confirmation of the respective awards in this country”.

    The STJ has a clear pro-arbitration position on foreign arbitral awards, as it confirms most of the foreign decisions. The court appropriately exercises restraint in analysing the merits of cases already decided by arbitral tribunals seated abroad.

    The outlook

  117. 59.

    Can a foreign arbitral award be enforced if the award has been set aside by the courts at the seat of the arbitration? 

  118. No. The final part of the Brazilian Arbitration Act is specifically dedicated to the recognition and enforcement of foreign arbitral awards and articles 38 and 39 of the Act basically reproduce the same provisions of article V of the New York Convention on grounds for refusal of recognition and enforcement by member states. Along these lines, an award that has not yet become binding on the parties or has been set aside or suspended by a court of the seat will be denied recognition by the STJ.

    Recently in the case EDF International S/A v Endesa Latinoamérica S/A (SEC No. 5,782) the STF decided that because the arbitral award was set aside at the seat of arbitration (Argentina), such award could not be recognised and enforced in Brazil. 

  119. 60.

    Has your jurisdiction refused to honour an international arbitral award issued against the state or an instrumentality of the state in your jurisdiction? If so, please provide a brief explanation.

  120. There has never been such a case in Brazil.

  121. 61.

    What is your view of the future of international arbitration and is the trend positive in your jurisdiction? What advice do you have with respect to dispute resolution for a foreign lawyer advising a foreign client contemplating entering into a business deal with a company from your jurisdiction?

  122. Arbitration has made considerable advances in Brazil in the past few years. The number of cases, both domestic and international, has increased drastically over the last decade. Brazilian courts have become almost uniformly supportive of arbitration as a form of dispute resolution.

    Brazil’s sharp rise in the International Chamber of Commerce (ICC) arbitration alone illustrates this. In 1994, arbitrations seated in Brazil, or involving Brazilian parties, ranked 26th among ICC proceedings. From 2006 to 2009, these figures rose to fourth overall. Since then, procedures involving Brazil before the ICC have been the most numerous among all Latin American countries (WALD, Arnoldo, Arbitration in Brazil: Recent Developments, 2006 to 2012, ICC (2012), available at www.iccdrl.com).

    Between 2009 and 2010 alone, the values involved in Brazilian arbitration rose by over 180 per cent. Overall, similar rates have been maintained, if not increased, in recent years (CONJUR, Valores envolvidos em arbitragem acumulam R$2,4 bi, available at www.conjur.com.br/2010-abr-13/valores-envolvidos-arbitragem-crescem-185-acumulam-24-bilhoes).   

    From 2010 to 2013, the more than 600 proceedings held involved a sum larger than 16 billion reais (https://www.conjur.com.br/2014-abr-10/selma-lemes-numeros-mostram-maior-aceitacao-arbitragem-brasil).

    Brazil has consolidated its position as one of the top users of commercial arbitration in the world, being number one among Latin American countries, in an accelerating trend towards more use of arbitration as the dispute resolution mechanism of choice, for contracts of considerable value or complexity.

    Recent STJ decisions further show Brazil’s commitment to arbitration as an effective means of dispute resolution. The recent Abengoa v Ometto saga discussed above reflects the STJ’s efforts to protect the integrity of the arbitration process in Brazil. While the STJ will (as it should) continue to exercise restraint when analysing public policy defences, the court will keep denying confirmation of arbitral awards that are “absolutely incompatible with the Brazilian legal system”.

    Arbitration and other alternative means of dispute settlement have come a long way in recent years, due in great part to the judiciary’s clear commitment in upholding party autonomy, which has established the country among the top users of arbitration worldwide.

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Questions

    Legislation

  1. 1.

    Which legislation governs the enforcement of international commercial arbitration awards and arbitral agreements in international business contracts, and international commercial arbitration proceedings?


  2. 2.

    Has the UNCITRAL model arbitration law been adopted in your jurisdiction? 


  3. Conventions

  4. 3.

    Is your jurisdiction a party to both the New York Convention and the Panama Convention? Is it a party to any other conventions or treaties governing international commercial arbitration agreements, awards or proceedings? 


  5. 4.

    Is your jurisdiction a party to the ICSID Convention? Have steps been taken to renounce the Convention or withdraw from ICSID? 


  6. 5.

    Is your jurisdiction a party to other conventions that directly affect the enforceability of arbitration agreements, rights or awards?


  7. Commercial arbitral agreements and arbitrability

  8. 6.

    Some jurisdictions have permitted parties to compel resolution of a dispute by means of arbitration only if the agreement to arbitrate was entered into after a dispute has arisen. Is a pre-dispute arbitration clause to resolve international commercial disputes by arbitration enforceable?


  9. 7.

    What are the requirements for an enforceable arbitral agreement? 


  10. 8.

    Is there subject matter that is not legally subject to arbitration in the context of an international business transaction?


  11. 9.

    Are there any limits to the ability of a state or an instrumentality of the state to enter into an agreement to arbitrate in your jurisdiction? If so, under what circumstances may the state or its instrumentalities enter into such an agreement? Please describe the requirements that must be met for the state to enter into a binding arbitration agreement.


  12. 10.

    Does the law specify whether an arbitration will be in equity or under law if the parties do not expressly specify the nature of the arbitration in the agreement?


  13. 11.

    How does the law limit party autonomy with respect to the terms of an arbitral agreement? 


  14. 12.

    Under what circumstances does the law allow a non-signatory to an arbitral agreement to pursue a claim in an international arbitration against a party that signed the arbitral agreement?


  15. 13.

    Under what circumstances does the law allow a signatory to an arbitral agreement to pursue a claim in an international arbitration against a party that did not sign the arbitral agreement?


  16. 14.

    Under what circumstances may a non-signatory to an arbitral agreement compel arbitration of a claim asserted against it in a court of law by a signatory of the arbitral agreement?


  17. 15.

    Is there any law in your jurisdiction specifically governing the arbitrability of consumer or labour disputes?


  18. 16.

    Does your jurisdiction provide for class-action arbitration or group arbitration? If so, are there any limitations to the arbitrability of such claims or requirements that must be met before such claims may be arbitrated? 


  19. 17.

    Are contractual waivers precluding arbitration of claims on a class-wide basis enforceable? Under what circumstances have such waivers been upheld or set aside by the courts?


  20. 18.

    If the parties’ contract is silent on the issue of class-action arbitration, is class-action arbitration allowed under the law of your jurisdiction?


  21. 19.

    Are foreign arbitral institutions without a physical presence in your jurisdiction authorised to administer arbitrations in your jurisdiction? Does the law require that a foreign institution be licensed under local law in order to administer an arbitration seated there?


  22. Arbitral institutions and arbitrators

  23. 20.

    Is an arbitral award issued in an arbitration seated in your jurisdiction under the auspices of a foreign institution (such as the ICC, ICDR, LCIA or similar institutions) vulnerable to challenge because it was issued under the auspices of a foreign institution?


  24. 21.

    Does the law require that arbitrators in international arbitrations be citizens or residents of your jurisdiction?


  25. 22.

    Does your law require that arbitrators in international cases be lawyers? 


  26. 23.

    Does your jurisdiction provide immunity to arbitrators serving in an arbitration with its legal seat in your jurisdiction? Under what circumstances does such immunity apply or not apply? 


  27. 24.

    Are the fees of foreign arbitrators serving in an arbitration seated in your jurisdiction subject to taxation?


  28. 25.

    Must arbitrators in international arbitrations be independent and impartial? What is the legal standard governing conflicts of interest and disclosure by arbitrators in international arbitrations?


  29. 26.

    Will courts entertain requests to disqualify an arbitrator before the conclusion of an award? 


  30. Arbitral proceedings

  31. 27.

    Does the law require that arbitral proceedings seated in your jurisdiction be held in a specific language? 


  32. 28.

    Can foreign lawyers serve as advocates in arbitral proceedings in your jurisdiction? If so, can they do so alone or must a local lawyer serve as co-counsel? 


  33. 29.

    Are the fees of foreign lawyers earned for services rendered in connection with an arbitration seated in your jurisdiction subject to local taxation?


  34. 30.

    In what circumstances, if any, does your law allow the consolidation of multiple arbitral proceedings into a single proceeding?


  35. 31.

    Please describe common practice and usage in international arbitrations seated in your jurisdiction with respect to a party’s right to require an opposing party to produce documents pertinent to the dispute. 


  36. 32.

    Does the law impose a duty of confidentiality in arbitration? If so, on whom? 


  37. 33.

    Does the law authorise third-party funding for international arbitration? Are there any ethical limitations imposed upon counsel to the parties that restricts the use of such funding?


  38. 34.

    Are there any mandatory national rules of professional ethics that apply to counsel in an international arbitration in your jurisdiction? If so, are those rules applicable to counsel from another jurisdiction participating in an arbitration in your jurisdiction? 


  39. 35.

    Are there any mandatory rules on oath or affirmation for witnesses testifying in an arbitration in your jurisdiction that have to be administered prior to their testimony? If so, what are they? 


  40. 36.

    Are there restrictions in your jurisdiction on the interviewing of witnesses in anticipation of hearings or giving of testimony?


  41. Court support for arbitration

  42. 37.

    Can arbitrators decide on their own jurisdiction? Is the principle of ‘Kompentenz-Kompetenz’ followed in the courts?


  43. 38.

    Do the courts follow the principle of the independence and separability of the arbitration clause? 


  44. 39.

    Are arbitral tribunals empowered to grant interim relief? If so, how is that relief enforced in the courts? 


  45. 40.

    Can arbitrators issue orders, subpoenas or use other legal processes to compel the production of evidence by a third party or compel a third-party witness to appear before them? If so, will a court lend its aid in enforcing such an order against a recalcitrant third party? Also, if arbitrators can issue orders, subpoenas or use other legal processes to compel the production of evidence by a third party or compel a third-party witness to appear before them, are there any limitations to their doing so? 


  46. 41.

    Can a party to an arbitration seek relief from the court to obtain evidence in aid of an international arbitration? What is the scope of such relief?


  47. 42.

    Can a party in an international commercial arbitration seek interim or provisional relief from a court without first seeking relief from the arbitral tribunal?


  48. 43.

    Have the courts issued injunctions enjoining arbitral proceedings from going forward? 


  49. 44.

    Does the law provide that post-award interest accrues on an unpaid arbitral award? 


  50. 45.

    Is an arbitral tribunal empowered to award attorneys’ fees to the prevailing party or is that power reserved to the courts?


  51. 46.

    Is an arbitral tribunal empowered to award punitive or exemplary damages? Is the arbitral tribunal empowered to award interest? 


  52. Awards - content

  53. 47.

    What are the grounds for challenging or vacating an international award issued in an arbitration seated in your jurisdiction? 


  54. 48.

    Is “lack of reasonableness”, manifest disregard or a mistake in the application of the substantive law to the dispute of an international award grounds to vacate it? 


  55. 49.

    Have international awards rendered in your jurisdiction been vacated on the grounds of "public policy"? If so, how has the "public policy" ground for vacating an award been interpreted in your jurisdiction?


  56. 50.

    What is the period of time a party has to challenge such an award after its issuance?


  57. 51.

    Please describe any recent significant experiences or cases that illustrate the attitude of your courts towards the annulment of international awards rendered in your jurisdiction.


  58. 52.

    Do the courts consider themselves empowered to vacate an arbitral award rendered in another jurisdiction?


  59. Awards enforcement

  60. 53.

    May parties waive all court review of an arbitral award rendered in your jurisdiction (or restrict or expand the scope of that court review)?


  61. 54.

    Please describe the process for enforcing an arbitral award rendered in another jurisdiction.


  62. 55.

    Assuming that the award is covered by a convention applicable in your jurisdiction, how long does it take to obtain an order of enforcement in the first instance? How long does it take for the enforcement process to run its full course through to the last instance? 


  63. 56.

    Please compare how long it takes to enforce an arbitral award rendered abroad with how long it takes to domesticate a foreign judgment.


  64. 57.

    Please describe some significant recent experiences with the enforcement of foreign arbitral awards.


  65. 58.

    To what degree has “public policy” been a ground to refuse enforcement of an international award rendered abroad? 


  66. The outlook

  67. 59.

    Can a foreign arbitral award be enforced if the award has been set aside by the courts at the seat of the arbitration? 


  68. 60.

    Has your jurisdiction refused to honour an international arbitral award issued against the state or an instrumentality of the state in your jurisdiction? If so, please provide a brief explanation.


  69. 61.

    What is your view of the future of international arbitration and is the trend positive in your jurisdiction? What advice do you have with respect to dispute resolution for a foreign lawyer advising a foreign client contemplating entering into a business deal with a company from your jurisdiction?


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