BRAZIL Law and Practice Contributed by: Ivo Waisberg, Ricardo Pomeranc Matsumoto and Ana Rennó, Thomaz Bastos, Waisberg, Kurzweil Advogados
2. Governing Legislation 2.1 Governing Law
Although the subjects are pending, they seem to have stalled due to backlash of the Brazilian arbitral community to safeguard best practices in the coun - try. Today, the most significant ongoing discussion is about the proposed reform of the Brazilian Civil Code, which is a very significant amendment that has been highly criticised by several sectors of the Brazilian legal community. It is manifest that arbitration may be substantially impacted once the reform introduc - es important changes in many areas. For example, it proposes that limited liability companies expressly define in their corporate documents whether disputes involving partners and the company shall be resolved through arbitration, encouraging earlier and more transparent choices regarding dispute resolution. Fur - ther, recent procedural reforms affecting forum selec - tion in contracts may also influence arbitration claus - es, particularly in ensuring judicial co-operation, such as for interim relief. Clauses misaligned with these new standards may face enforceability challenges. In addition, the reform seeks to clarify the criteria for determining the international nature of contracts and proposes updates to insurance law, which could expand the scope of arbitrable matters – especially in complex, cross-border or reinsurance disputes. These changes are still under discussion but are viewed as highly relevant, with the potential to reshape how arbi - tration is used in corporate, contractual and cross- border contexts in Brazil. According to Brazilian arbitration law, individuals with legal capacity to enter into contracts may resort to arbitration to settle disputes involving disposable property rights. Furthermore, the arbitration clause must be established in writing and must refer to a spe - cific contract. The clause may be included within the contract itself or in a separate document that refers to such contract. Additionally, in certain cases, specific requirements must be met for the arbitration clause to be enforce - able. For example, in adhesion contracts, the arbitra - tion clause will only be effective if the adhering party initiates the arbitration or expressly agrees to its use, 3. The Arbitration Agreement 3.1 Enforceability
The Brazilian Arbitration Act (Law No 9.307/1996) governs both domestic and international arbitration seated in Brazil. Although inspired by the UNCITRAL Model Law – particularly in core principles such as party autonomy, separability of the arbitration agree - ment, competence-competence, limited judicial inter - vention, and the recognition and enforcement of arbi - tral awards – it is not a verbatim adoption, and there are several notable differences. The Act does not distinguish between domestic and international arbitration in its structure or provisions, creating a monistic system. It also does not provide an express definition of public policy, leaving interpreta - tion to the courts. Moreover, unlike the Model Law, the Brazilian Act allows parties to request clarifications of the award (Article 30), permitting the tribunal to correct material errors or address omissions without revisiting the merits. Other divergences include (i) stricter formal require - ments for arbitration agreements (Article 4), (ii) the absence of an express rule regarding waiver of proce - dural objections, (iii) more limited regulation of interim measures – although the 2015 reform expanded the tribunal’s powers in this regard (Article 22-B), (iv) the right to challenge an arbitrator but without specific provisions on the procedure (Article 14), and (v) the possibility of court appointment of arbitrators in case of impasse (Article 7 (4)). Despite these differences, the Brazilian Arbitration Act remains fully consistent with international best prac - tices and is widely regarded as arbitration-friendly. 2.2 Changes to National Law In the past three years there has been some discus - sion on the amendment of the Brazilian Arbitration Law regarding independence and impartiality of arbi - trators and the duty of disclosure, and on the enact - ment of a Bill to modify material aspects of the civil liability of administrators and controlling shareholders of joint-stock companies, and procedural aspects of class arbitration.
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