BRAZIL Law and Practice Contributed by: Cláudio Finkelstein, Maria Isabel Gori Montes and Laura Martini Brevilieri, Finkelstein Advogados
• regulated interim and urgent measures; • introduced arbitral letters as a mechanism of co- operation between courts and arbitral tribunals; and • recognised partial arbitral awards. Sector-Specific Developments Changes in other areas of legislation may indirectly affect arbitration. For example, Law No 15,040/2024 (the new Legal Framework for Insurance Contracts), which entered into force on 11 December 2025, expressly admits arbitration for insurance disputes, provided that the arbitration is seated in Brazil and governed by Brazilian substantive law (Article 129). Pending Legislation Bill No 3,293/2021, still under review before the Chamber of Deputies, proposes changes concerning arbitrators’ duties and the duty of disclosure – includ - ing a stricter “minimal doubt” standard in place of the current “justified doubt” test and a cap of ten simulta - neous arbitrations per arbitrator – as well as the pub - lication of certain information after the conclusion of arbitral proceedings and the publicity of annulment actions. The bill has drawn significant criticism from the arbitration community. Therefore, while there has been no recent enacted reform of the BAA itself, legislative developments out - side the statute and pending reform proposals may still have practical effects on arbitration in Brazil. Under Brazilian law, the arbitration agreement encom - passes both the arbitration clause and the submission agreement (Article 3 of the BAA). It is enforceable if it meets the requirements of the BAA and the general validity requirements of the Brazilian Civil Code (BCC). The main requirements are: • the parties must be capable of contracting; • the dispute must involve disposable patrimonial rights (Article 1 of the BAA); 3. The Arbitration Agreement 3.1 Enforceability
• the subject matter must be lawful, possible and determined or determinable (Article 104 of the BCC); • the agreement must be in writing (Article 4, para - graph 1 of the BAA); • in adhesion contracts, the clause is only effective if in a separate document or in boldface, with the adhering party’s specific written consent (Article 4, paragraph 2 of the BAA); and • in consumer contracts, arbitration cannot be imposed unilaterally on the consumer (Article 51, VII of the Consumer Protection Code). An arbitration clause is deemed “empty” when it expresses the intention to arbitrate without specify - ing the elements needed to commence the arbitration (such as the institution or rules, seat and method for appointing arbitrators). It then requires a subsequent submission agreement or recourse to Article 7 of the BAA to constitute the tribunal. Article 7 provides a judicial mechanism to institute arbitration where a valid arbitration clause exists but one party refuses to enter into the submission agreement needed to commence the proceedings. This is a court-support function that gives effect to the parties’ agreement to arbitrate, rather than displacing arbitration. 3.2 Arbitrability In Brazil, only disposable patrimonial rights may be submitted to arbitration, pursuant to Article 1 of the BAA. This is the general test for arbitrability: the right must have an economic nature (patrimonial) and be capable of voluntary disposition by the parties (dis - posable). Where a right is unavailable – because it cannot be waived or freely disposed of – it falls out - side the scope of arbitration. Consequently, matters such as criminal law, personal status and capacity, and the core of family law cannot be submitted to arbitration, as they involve non-dis- posable rights. Disputes involving public entities are arbitrable where they concern disposable patrimonial rights (Article 1, paragraph 1 of the BAA), provided that the arbitration is conducted at law and observes the principle of publicity (Article 2, paragraph 3 of the BAA), in line with applicable constitutional principles.
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