BRAZIL Law and Practice Contributed by: Eduardo Perazza, Glaucia Coelho, Débora Chaves Martines Fernandes and Agnes Domingues, Machado Meyer
3. Arbitration 3.1 Prevalence
• Enforceability – Brazil is a signatory to the New York Convention, providing a well-established framework for recognition and enforcement of foreign arbitral awards worldwide. • Pro-arbitration courts – Brazilian courts are gener- ally supportive of arbitration. They uphold arbitra- tion agreements and limit annulment of awards to narrow procedural grounds. • Neutrality – arbitration offers a neutral forum, free from potential local court biases. This is particularly valued in cross-border disputes where parties may prefer not to litigate in each other’s home courts. 3.4 Disadvantages of Arbitration Arbitration also presents certain disadvantages. • Cost – arbitration is generally more expensive than court litigation due to institutional fees, arbitrators’ fees and legal representation costs. This may limit access for small and medium-sized enterprises. • Limited review – arbitral awards are not subject to appeal on the merits, which may disadvantage par- ties affected by legal or factual errors. • Interim relief – although arbitral tribunals may grant interim measures, their enforcement may require court assistance, potentially causing delays. • Multi-party complexity – multi-party and multi- contract disputes can raise procedural challenges, particularly where not all parties are bound by the same arbitration agreement. 3.5 Arbitral Institutions The most prominent arbitral institutions in Brazil include the following. • CAM-CCBC (Center for Arbitration and Mediation of the Brazil-Canada Chamber of Commerce) – the largest and most established domestic arbitral institution, widely used in complex commercial disputes. • CAM-B3 (Market Arbitration Chamber) – has exclu- sive jurisdiction over disputes arising from B3 stock exchange listing agreements and is a key forum for capital markets arbitration. • ICC Brazil (International Chamber of Commerce) – administers a significant number of both domestic and international arbitrations involving Brazilian parties.
Arbitration is highly prevalent in Brazil and the domi- nant mechanism for complex, high-value commercial disputes. Brazil ranks among the leading arbitration jurisdictions in Latin America. Arbitration is commonly used in M&A, shareholders’ agreements, joint ventures, corporate governance, energy, oil and gas, infrastructure, construction, and finance disputes. Public-private partnerships and concession disputes may also be arbitrated. 3.2 Restrictions on Use of Arbitration Not all disputes can be resolved through arbitration in Brazil. The Arbitration Act limits arbitration to disputes involving patrimonial rights that the parties are free to dispose of. This includes most commercial and con- tractual matters. Certain categories of disputes cannot be submitted to arbitration, such as: • family law matters (divorce, custody, non-waivable succession rights); • criminal matters; • tax disputes (with limited exceptions for public entities); and • strictly personal rights. 3.3 Advantages of Arbitration Arbitration offers several advantages in Brazil. • Finality – arbitral awards are final and binding, with the same legal effect as court judgments. No court ratification is required for domestic awards. • Speed – arbitration proceedings are significantly faster than litigation. • Flexibility – parties have significant control over the process. They may choose specialised arbitrators with relevant expertise, select the applicable pro- cedural rules and substantive law, and determine the language and seat of arbitration. • Confidentiality – unlike court proceedings, which are generally public, arbitration can be kept con- fidential. Most institutional rules and arbitration agreements include confidentiality provisions.
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