BRAZIL Law and Practice Contributed by: Ivo Waisberg, Ricardo Pomeranc Matsumoto and Ana Rennó, Thomaz Bastos, Waisberg, Kurzweil Advogados
SP, reaffirmed that it is for the arbitrators – and not the judiciary – to rule, in the first place, on their own jurisdiction when an arbitration agreement exists. Therefore, in Brazil, the application of the compe - tence-competence principle is well established both in legislation and in case law. 5.2 Circumstances for Court Intervention In Brazil, courts may examine the jurisdiction of arbi - tral tribunals in four situations: • when a lawsuit is filed despite an arbitration clause in the contract, and the defendant invokes it to seek dismissal; • in annulment proceedings of an arbitral award, based on item I of Article 32 of the Brazilian Arbi - tration Act; • in recognition of foreign arbitral awards, under item II of Article 38 of the Brazilian Arbitration Act; and • in jurisdictional conflicts between arbitral tribunals and state courts, which are resolved by the Supe - rior Court of Justice. Despite these possibilities, court intervention tends to be limited. A 2024 study by Fundação Getulio Vargas shows that, at the appellate level, 69% of annulment actions were dismissed. The most frequently cited ground for annulment was the alleged invalidity of the arbitration agreement, as provided in item I of Article 32 of the Arbitration Act. 5.3 Timing of Challenge Since the jurisdiction of the arbitral tribunal may only be challenged through annulment proceedings, par - ties are allowed to resort to the courts solely after the arbitral award (partial or final) has been issued, based on item I of Article 32 of the Brazilian Arbitration Act. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility Brazilian courts usually adopt a deferential approach when reviewing matters of admissibility and jurisdic - tion, which means that, in general, priority is given to the arbitral tribunal’s authority to decide on its own jurisdiction and the admissibility of claims. These mat - ters are typically addressed through a partial award and are subject to the scrutiny established under Arti -
cle 32. As such, the praxis is that the judiciary does not review the merits of these decisions, respecting the principle of competence-competence and the autonomy of the arbitral process. 5.5 Breach of Arbitration Agreement In the experience of the authors, Brazilian courts are generally reluctant to proceed with judicial proceed - ings when one of the parties has breached the arbitra - tion agreement and the other party has objected to it. Brazilian courts will only continue with the judicial proceeding if the defendant has waived the right to arbitrate, which may even occur tacitly (for example, allowing the invocation of the arbitration agreement in a preliminary objection). 5.6 Jurisdiction Over Third Parties Brazilian Arbitration Act, under Article 3, establishes party autonomy as a cornerstone of arbitration. Nev - ertheless, despite the consensual nature of arbitration enshrined in the law itself, both case law and legal scholarship have recognised, in exceptional circum - stances, the possibility of extending the effects of the arbitration agreement to non-signatory third parties. Such exceptions arise mostly in situations involving the succession of contractual relationships, intercon - nected or linked contracts, or the application of the group of companies’ doctrine. In Brazil, once the arbitral tribunal has been con - stituted, the arbitrators are authorised to grant any preliminary or interim relief requested by the parties, pursuant to the sole paragraph of Article 22-B of the Brazilian Arbitration Act. Such relief shall be binding while in force, but shall be reviewed (confirmed, reject - ed or modified) in the final arbitral award on the merits. Although the possibility of granting urgent relief meas - ures in arbitration is expressly provided for, there is no explicit provision as to which specific measures may be requested. However, based on the experience of the authors, by way of example, the interim relief may require a party to maintain or reinstate the status quo, take steps to prevent present or future harm or preju - 6. Preliminary and Interim Relief 6.1 Types of Relief
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