BRAZIL Law and Practice Contributed by: Ivo Waisberg, Ricardo Pomeranc Matsumoto and Ana Rennó, Thomaz Bastos, Waisberg, Kurzweil Advogados
7. Procedure 7.1 Governing Rules
dice to the integrity of the arbitral proceedings, adopt measures to safeguard assets that could be used to satisfy a future arbitral award, or preserve evidence that is potentially relevant and material to the resolu - tion of the dispute. 6.2 Role of Courts According to Article 22-A of the Brazilian Arbitration Act, the parties may resort to the Judiciary for the granting of preliminary or interim relief measures prior to the constitution of the arbitral tribunal. Once the arbitral tribunal is constituted, it shall have exclusive jurisdiction to decide on such requests. There is no prohibition under Brazilian Arbitration Act against the judiciary granting interim relief in support of foreign-seated arbitrations. To date, there have been no reported cases challenging the admissibility of such relief. The Brazilian Arbitration Act does not provide for nor forbids the use of emergency arbitrators. However, certain arbitration institutions operating nationally – such as CAM-CCBC – allow the appointment of emer - gency arbitrators. The decisions rendered by emer - gency arbitrators are binding while in force but may be subject to review by the arbitral tribunal once con - stituted. The types of relief that may be granted by the emergency arbitrator are those outlined in response to 6.1 Types of Relief . Once an emergency arbitrator has been appointed, the judiciary is not expected to intervene. 6.3 Security for Costs Security for costs is not expressly recognised under Brazilian law. However, considering that a request for security for costs constitutes a form of preliminary relief – and given that, as noted, there is no explicit provision in the law regarding the specific content of such relief – the arbitral tribunal may grant it, provided that the requirements of fumus boni iuris (appearance of good right) and periculum in mora (risk of harm in delay) are met.
The core legal framework for arbitration in Brazil is established by the Brazilian Arbitration Act (Law No 9.307/1996). 7.2 Procedural Steps Party autonomy is the fundamental principle guiding arbitral proceedings, provided that essential guaran - tees such as due process and equal treatment are upheld. The arbitral tribunal is likewise empowered to manage the procedure in the manner it considers most appropriate for the circumstances of each case. The Brazilian Code of Civil Procedure does not apply to arbitration proceedings. 7.3 Powers and Duties of Arbitrators According to the Brazilian Arbitration Act, arbitra - tors have the following duties: to act with impartiality, independence, competence, diligence, and discretion (Article 13, §6); to disclose any facts that may give rise to justified doubts concerning their impartiality or independence (Article 14, §1); and to respect the principles of adversarial proceedings, equality of the parties, impartiality of the arbitrator and freedom of conviction (Article 21, §2). On the other hand, the Arbitration Act defines the arbitrator as a judge of fact and law, granting arbitra - tors the following powers: to issue final awards on the merits, which are not subject to appeal or judicial confirmation (Articles 18 and 23); to decide on issues related to the existence, validity and effectiveness of the arbitration agreement (Article 8); and to take party depositions, hear witnesses and order expert exami - nations or other evidence deemed necessary (Article 22). 7.4 Legal Representatives Pursuant to Article 21, paragraph 3, of the Brazil - ian Arbitration Act, the parties may be represented by legal counsel, while always preserving their right to designate any person of their choice to represent or assist them in the arbitral proceedings. Accord - ingly, there are no specific qualifications or additional requirements for legal representatives to act in arbi -
79 CHAMBERS.COM
Powered by FlippingBook