BRAZIL Law and Practice Contributed by: Ivo Waisberg, Ricardo Pomeranc Matsumoto and Ana Rennó, Thomaz Bastos, Waisberg, Kurzweil Advogados
4.3 Court Intervention Courts in Brazil may intervene in the selection of arbi - trators in limited circumstances, particularly when the arbitration agreement is incomplete, silent on the appointment procedure, or when one party resists the initiation of arbitration. According to Article 7 of the Brazilian Arbitration Act, the interested party may request the court to summon the other party to a spe - cial hearing. If no agreement is reached, the judge may define the terms of the arbitration and appoint a sole arbitrator, ensuring respect for any provisions in the clause. This judicial intervention is procedural in nature and aims solely to enforce the arbitration agreement and to enable the commencement of arbi - tration, without interfering in the tribunal’s independ - ence or the merits of the dispute. 4.4 Challenge and Removal of Arbitrators According to Articles 14 to 16 of the Brazilian Arbitra - tion Act, arbitrators may be challenged if they lack civil capacity, if they do not comply with the requi - sites stipulated in the arbitration agreement, if there are justifiable doubts on their impartiality and/or inde - pendence to hear the case, and lastly if they have any relationship with the parties or the dispute that would constitute grounds for disqualification or suspicion of a judge under the Civil Procedure Code. Before accepting the appointment, arbitrators have a duty to disclose any facts that could raise justified doubts about their impartiality or independence. Chal - lenges are generally only allowed based on events arising after the appointment, unless the arbitrator was not directly appointed by the party or the grounds for challenge became known only afterwards. The procedure in Brazil is simpler than under the UNCITRAL Model Law and is typically governed by institutional rules, which often designate the president of the arbitral institution or a specific internal body to decide on challenges, ensuring greater efficiency and predictability. 4.5 Arbitrator Requirements Under Brazilian law, arbitrators are subject to a duty of impartiality and independence, as set forth in Article 14 of the Brazilian Arbitration Act. Although the statute refers to both concepts – similarly to the UNCITRAL
Model Law – the majority view in Brazilian legal schol - arship holds that independence is merely an external expression of impartiality, and thus not a separate or cumulative requirement. The law also establishes a clear duty of disclosure. Before accepting an appointment, the arbitrator must disclose any circumstances that may give rise to justi - fied doubts regarding their impartiality or independ - ence. Further guidance is offered by the CBAr Guidelines on Arbitrator Disclosure (2023), issued by the Comitê Brasileiro de Arbitragem (CBAr). Although these guide - lines are soft law, they reflect the prevailing practices and expectations of the Brazilian arbitration commu - nity. They emphasise that the duty of disclosure is continuous, and that disclosure is not an admission of bias, but rather a mechanism to ensure transparency and preserve trust in the arbitral process. Major Brazilian institutions, such as CAM-CCBC and CAMARB, incorporate these principles into their pro - cedural rules, requiring arbitrators to sign declarations of independence and disclose any relevant circum - stances that could affect their neutrality. Under Brazilian law, an arbitral tribunal may and must rule on challenges to its own jurisdiction, in accord - ance with the principle of competence-competence. This principle is expressly recognised in Article 8, sole paragraph, of the Brazilian Arbitration Act. Addition - ally, the Brazilian Code of Civil Procedure, in Article 485, item VII, provides that the court shall dismiss the case without a resolution on the merits when there is an arbitration agreement and the arbitral tribunal affirms its jurisdiction. This reinforces the authority of arbitral tribunals to determine the scope and validity of their own jurisdiction. The competence-competence principle is also con - sistently upheld by Brazilian courts. For example, the Superior Court of Justice, in Appeal No 1.614.070/ 5. Jurisdiction 5.1 Challenges to Jurisdiction
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