BRAZIL Law and Practice Contributed by: Ivo Waisberg, Ricardo Pomeranc Matsumoto and Ana Rennó, Thomaz Bastos, Waisberg, Kurzweil Advogados
The STJ has repeatedly stated that enforcement can - not be refused simply because the foreign award con - tradicts Brazilian substantive law. Instead, refusal is permitted only in exceptional cases, such as where the award violates fundamental principles of due pro - cess, morality, sovereignty or the constitutional order. This cautious and limited use of the public policy exception reflects Brazil’s commitment to the inter - national enforcement regime and legal certainty in cross-border arbitration. 13. Miscellaneous 13.1 Class Action or Group Arbitration The Brazilian Arbitration Act does not include any pro - visions for class action or group arbitration. 13.2 Ethical Codes Legal counsel acting in arbitration proceedings in Brazil are subject to the Brazilian Bar Association’s Code of Ethics, which applies regardless of whether the dispute is resolved in court or through arbitration. Among the duties of conduct set forth in the Brazilian Bar Association’s Code of Ethics are the duty: to pre - serve the honour and dignity of the legal profession, safeguarding its essential and indispensable nature; to act with independence, honesty, propriety, truth - fulness, loyalty, dignity, and in good faith; to inform the client of any potential risks associated with their claims and the possible consequences of the legal action and the chosen legal strategy; to maintain pro - fessional confidentiality, among others. With respect to arbitrators, as previously mentioned, the Brazilian Arbitration Act establishes the duties to respect the principles of due process, equal treatment of the parties, arbitrator impartiality, and freedom of conviction, as well as the obligation to disclose any facts that may give rise to justified doubts regarding their impartiality or independence. In addition, cer - tain arbitration institutions operating at the national level – such as CAM-CCBC – have their own Codes of Ethics that arbitrators must observe. In the case of CAM-CCBC, its Code of Ethics imposes several duties on arbitrators, including the duty of independ -
ence, impartiality, diligence, competence, availability, disclosure and confidentiality. 13.3 Third-Party Funding Brazil does not currently have specific legislation that regulates third-party funding in arbitration. There are no statutory prohibitions or express restrictions on the use of third-party funding in arbitral proceedings seated in Brazil. However, for purposes of conflict checks by arbitrators, some arbitral institutions com - monly request that the parties disclose whether the claim is being financed by a third party and, if so, identify the funder. 13.4 Consolidation The Brazilian Arbitration Act does not address the pos - sibility of consolidating arbitral proceedings. However, the rules of certain arbitration institutions do provide for such a possibility. By way of example, the Rules of CAM-B3 establish that, when a request for arbitra - tion is submitted involving the same subject matter or cause of action as another ongoing proceeding, the President of the Chamber, after hearing the parties and considering the circumstances and the progress made in the pending case, may order the consolida - tion of the proceedings for joint adjudication. Such consolidation is only allowed during the evidentiary phase of the arbitration. Therefore, under the rules of CAM-B3, the authority to consolidate related pro - ceedings does not lie with the arbitrators, but rather with the President of the Chamber. The judiciary is not expected to intervene in matters concerning the consolidation of arbitral proceedings. 13.5 Binding of Third Parties Under Brazilian law, arbitration agreements are gener - ally binding only on the signatory parties. However, as explained in 5.6 Jurisdiction Over Third Parties , Brazilian courts and arbitral tribunals have, in exceptional circumstances, extended the effects of arbitration agreements or awards to third parties, based mostly on the following doctrines: contractual relationships, interconnected or linked contracts, or group of companies. Generally, Brazilian courts have no jurisdiction to bind foreign third parties to an arbi - tration agreement or award.
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