BRAZIL Law and Practice Contributed by: Ivo Waisberg, Ricardo Pomeranc Matsumoto and Ana Rennó, Thomaz Bastos, Waisberg, Kurzweil Advogados
11. Review of an Award 11.1 Grounds for Appeal
The award must be issued within the timeframe agreed by the parties in the arbitration clause or by reference to the rules of an arbitral institution. In the absence of such agreement, the default limit is six months from the establishment of the tribunal or substitution of an arbitrator. 10.2 Types of Remedies There are no specific provisions in the Brazilian Arbi - tration Act limiting the types of remedies that may be awarded, but arbitral awards must comply with Bra - zilian public policy and the mandatory rules of law. Thus, while arbitral tribunals have broad powers to grant effective relief, those powers remain bound by the legal framework and limitations applicable in judi - cial proceedings. As punitive damages are not rec - ognised under Brazilian Law, they could be awarded depending on the law applicable to the merits of the arbitration. 10.3 Recovering Interest and Legal Costs In practice, arbitral tribunals often grant interest and costs, but the specific allocation depends on the par - ties’ agreement, procedural rules and the breadth of the tribunal’s discretion. Article 27 of the Brazilian Arbitration Act requires that the arbitral award deter - mine the allocation of arbitration costs and expenses, including, where applicable, amounts arising from bad-faith litigation. Most institutional rules likewise confer broad discretion on the arbitral tribunal to allo - cate costs between the parties. It should be noted that the Brazilian Civil Procedure Code provides for attor - neys’ success fees, which are payable by the losing party to the prevailing party’s counsel, and although not automatically applicable to arbitration, domestic parties may also include that provision in the arbitra - tion cause or terms of reference. Interest and monetary adjustment may be awarded by the arbitral tribunal if provided for in the contract or under the applicable substantive law. For instance, Article 389 of the Brazilian Civil Code establishes that, if the contract does not specify a correction index, an official index known as IPCA-E must be applied by the court or arbitral tribunal.
Brazilian Arbitration Law does not provide for appeals on arbitral awards (it actually forbids them), leaving parties with three resources: • Clarifications by the arbitral tribunal – under Article 30, within five days of receiving the award (or another agreed period), a party may directly request the arbitral tribunal to correct material errors or to clarify obscurities, contradictions, doubts or omissions in the decision. This mecha - nism does not alter the merits of the award. • Annulment of the award – Article 33 establishes the procedure for seeking annulment before the courts. The request must be filed within 90 days from receipt of the arbitral award or the decision on clarifications and must follow the general rules of civil procedure. (a) It should be noted that Article 32 sets out limited grounds for annulment, which include: (i) an invalid arbitration agreement, (ii) lack of capacity of the arbitrator(s), (iii) violation of due process as per Article 21 (2), that the award is issued outside (iv) the scope of the arbitra - tion agreement or (v) the deadline set forth by the law or agreement of the parties, (vi) lacking formal requirements as per Article 26, or (vii) under malfeasance or corruption. • Judicial referral for supplementation – Article 33 (4) establishes that, if the award omits a point that should have been decided, the court may, instead of annulling the award, refer it back to the tribunal for supplementation, as it occurred in a recent precedent from the Courts of São Paulo on the Appeal 1114872-02.2023.8.26.0100. 11.2 Excluding/Expanding the Scope of Appeal In Brazil, parties cannot agree to expand or exclude the grounds for judicial challenge of an arbitral award beyond what is established by law. The Brazilian Arbi - tration Act does not allow appeals on arbitral awards, and judicial intervention is strictly limited to the annul - ment of the award on the specific grounds listed in Article 32 of the Act. These grounds are considered
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