BRAZIL Law and Practice Contributed by: Ivo Waisberg, Ricardo Pomeranc Matsumoto and Ana Rennó, Thomaz Bastos, Waisberg, Kurzweil Advogados
trations seated in Brazil. It is not even a requirement to be a qualified lawyer in Brazil to represent a party, which allows foreign lawyers to appear in arbitration proceedings without any further qualifications. 8. Evidence 8.1 Collection and Submission of Evidence With respect to the submission of evidence, the Bra - zilian Arbitration Act merely provides that the arbitral tribunal may hear the parties, examine witnesses and order expert examinations or any other evidence it deems necessary, either upon request of the parties or ex officio (Article 22). Any additional rules govern - ing the submission of evidence may be agreed upon by the parties or determined by the arbitral tribunal. 8.2 Rules of Evidence Arbitral proceedings seated in Brazil are governed by flexible and party-driven rules of evidence, rather than the formal evidentiary rules that apply in domes - tic judicial proceedings. 8.3 Powers of Compulsion Arbitrators lack the authority to compel third parties to produce documents or to ensure the attendance of witnesses or experts. However, Article 22, §2, of the Brazilian Arbitration Act permits the arbitral tribunal to request the judicial authority to compel the uncoop - erative witness to appear, upon proof of the existence of the arbitration agreement. In addition, Article 22-C of the Brazilian Arbitration Act provides that the arbitral tribunal may issue an arbi - tral letter ( carta arbitral ) requesting the national judicial authority to perform or order the performance, within its territorial jurisdiction, of an act requested by the arbitrator – which may include, for example, the pro - duction of a document by a third party.
the parties. The duty of confidentiality is provided in the rules for most arbitral institutions and applies to arbitrators, tribunal secretaries, experts, the parties and any other involved individuals who are prohibited from disclosing any information accessed during the proceedings. A notable exception to the rule refers to the presentation of documents related to arbitration in judicial proceedings, provided such disclosure is necessary to protect a party’s rights. Moreover, recent decisions from the São Paulo Court of Justice have nuanced the application of confiden - tiality in judicial proceedings related to arbitration. While Article 189, item IV, of the Brazilian Civil Proce - dure Code provides that court proceedings involving arbitration are to be conducted under judicial secrecy, the court has emphasised that blanket confidentiality may hinder legal development by preventing the cre - ation of jurisprudence in arbitration-related matters. As a result, courts have adopted a more restrictive interpretation, applying confidentiality only to specific documents and pieces of evidence directly related to the arbitration, rather than to the entire court record. In Brazil, arbitral awards must meet specific legal requirements set forth in the Arbitration Act. The award must be in writing and include: • a report with the parties’ names and a summary of the dispute; • the reasoning, addressing factual and legal issues, and stating whether the arbitrators decided ex aequo et bono; • the operative part, resolving the submitted issues and setting deadlines if applicable; and • the date and place of issuance. The award must be signed by the sole arbitrator or all tribunal members. If any arbitrator cannot or refuses to sign, the presiding arbitrator must certify the rea - son. In tribunals with multiple arbitrators, decisions are made by majority vote; if there is no majority, the presiding arbitrator’s vote prevails. Dissenting arbitra - tors may issue separate opinions. 10. The Award 10.1 Legal Requirements
9. Confidentiality 9.1 Extent of Confidentiality
In Brazil, arbitral proceedings are confidential unless otherwise provided by law (such as in disputes involv - ing state owned entities) or by express agreement of
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