BRAZIL Law and Practice Contributed by: Ivo Waisberg, Ricardo Pomeranc Matsumoto and Ana Rennó, Thomaz Bastos, Waisberg, Kurzweil Advogados
provided that such agreement is in writing, either in a separate document or highlighted in bold, with a spe - cific signature or acknowledgment for that clause. In labour law cases, the express consent of the employ - ee is also required for arbitration to be used. 3.2 Arbitrability When a dispute involves non-disposable property rights, it cannot be submitted to arbitration. In addi - tion, certain other matters cannot be subject to arbi - tration, such as issues related to tax law, family and succession law, consumer law, criminal law, corporate recovery and bankruptcy proceedings. 3.3 National Courts’ Approach Brazilian courts have adopted a pro-arbitration and enforcement-friendly approach toward arbitration agreements. Although the Brazilian Arbitration Act does not expressly define a rule for determining the law governing arbitration agreements, courts typical - ly rely on principles of party autonomy. If the parties have designated a governing law, this will generally be respected. In the absence of such a choice, courts tend to apply either the law of the seat of arbitration or the law governing the underlying contract, depending on the context and the intention of the parties. Regarding enforcement, Brazilian courts consistently uphold valid arbitration agreements and apply the principle of competence-competence, recognising that arbitral tribunals have the initial authority to rule on their own jurisdiction. However, courts may per - form a prima facie analysis of the arbitration clause – particularly in cases involving non-signatories or pre- arbitral interim relief – to assess whether there is a reasonable basis to support the clause’s applicability. As a general rule, arbitration agreements are enforced in Brazil, and courts will decline jurisdiction over dis - putes covered by a valid arbitration clause and com - pel the refusing party to participate in the arbitration proceeding, reinforcing the country’s strong support for arbitration and legal certainty in both domestic and international contexts. 3.4 Validity Brazilian law adopts the principle of separability, as expressly provided in Article 8 of the Brazilian Arbi -
tration Act, which states that the arbitration clause is autonomous from the main contract. Therefore, the nullity of the underlying contract does not necessarily affect the validity of the arbitration agreement. It is up to the arbitral tribunal – either ex officio or upon request of the parties – to rule on issues concerning the existence, validity and effectiveness of both the arbitration clause and the main contract. At the same time, Brazilian courts may conduct a prima facie analysis of the arbitration clause before the arbitral tribunal is constituted. This limited judicial review is particularly relevant when pre-arbitral interim relief measures are sought against non-signatories, or when there is a challenge to the applicability of the arbitration clause itself. The courts assess whether there is reasonable doubt or initial evidence of con - sent sufficient to provisionally support jurisdiction, without making a definitive ruling. Brazilian law allows any individual with legal capac - ity and who is trusted by the parties to serve as an arbitrator. Accordingly, the parties have the autonomy to appoint arbitrators of their choice, provided these requirements are met. 4.2 Default Procedures In Brazil, the parties may, by mutual agreement, establish the procedure for selecting the arbitrators or adopt the rules of an institutional arbitral body or specialised entity. Furthermore, the parties may, by mutual agreement, waive the application of any provision in the rules of the institutional arbitral body or specialised entity that limits the choice of a sole arbitrator, co-arbitrator, or tribunal president to the institution’s list of arbitrators. The institution’s competent bodies are authorised to oversee the appointment process. In cases of dead - lock or multi-party arbitration, the applicable rules of the institution elected by the parties in the arbitration agreement must be observed. 4. The Arbitral Tribunal 4.1 Limits on Selection
76 CHAMBERS.COM
Powered by FlippingBook