BRAZIL Law and Practice Contributed by: Eduardo Perazza, Glaucia Coelho, Débora Chaves Martines Fernandes and Agnes Domingues, Machado Meyer
Foreign Awards For foreign arbitral awards, the STJ has jurisdiction to grant or refuse recognition based on the grounds set forth in the New York Convention. 3.10 Relief Arbitral tribunals have broad authority to grant relief. They may issue declaratory, constitutive and condem- natory awards, including monetary damages, specific performance, contract termination and contractual penalties. The issuance of partial awards is expressly permitted. Interim and Emergency Relief Arbitral tribunals may grant interim and urgent meas- ures, such as injunctions and precautionary relief. • Before constitution of the tribunal, parties may seek interim measures from state courts. Once the tribunal is constituted, it may confirm, modify or revoke those measures. • After constitution, the tribunal has primary jurisdic- tion to grant interim relief, with state courts assist- ing in enforcement when necessary (eg, through judicial cooperation mechanisms). No Restrictions There are no express statutory restrictions on the types of interim relief a tribunal may grant, provided that the measures are necessary, proportionate, within the scope of the arbitration agreement and concern disposable rights. Coercive enforcement, such as contempt sanctions, may require judicial assistance. Brazil offers several ADR methods beyond arbitration. • Mediation – a neutral mediator helps parties reach their own solution. The mediator facilitates dia- logue but does not propose outcomes. Available through courts or private providers. • Conciliation – similar to mediation, but the concilia- tor takes a more active role and may suggest solu- tions. Commonly used in court proceedings and consumer disputes. 4. Other ADR Methods 4.1 ADR Procedures
• Dispute boards – used primarily in construction and infrastructure projects to resolve issues in real time during contract performance. • Online dispute resolution (ODR) – used for low- value consumer disputes. 4.2 Requirements to Engage in ADR Once a lawsuit is filed, Brazilian courts must schedule a mandatory conciliation or mediation hearing before the defence is submitted. This hearing can only be waived if both parties expressly decline. Non-attendance without justification may result in a fine of up to 2% of the dispute value. Where parties have contractually agreed to mediation as a condition precedent to arbitration, failure to comply may result in the claim being considered premature. 4.3 Impact of ADR Engaging in ADR does not affect a party’s right to litigate or arbitrate. The mandatory court hearing is a procedural step, not a precondition to filing suit. If ADR results in settlement, the agreement becomes an enforceable title through courts. 4.4 Timing of ADR ADR in Brazil may take place at different stages of the dispute. Parties often attempt to negotiate voluntar- ily before formal proceedings are initiated. ADR may also occur after a judgment has been rendered. Given that enforcement proceedings in Brazil can be lengthy and costly, it is not uncommon for the parties – par- ticularly the losing party – to negotiate a settlement at this stage in order to avoid prolonged and uncertain enforcement measures. As to limitation periods, extrajudicial mediation sus- pends the running of the statute of limitations until its conclusion. This mechanism protects parties who seek an amicable resolution before initiating litigation or arbitration, ensuring that settlement efforts do not
prejudice their rights. 4.5 Confidentiality
Mediation is confidential by law. As a general rule, information disclosed during mediation cannot be
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