BRAZIL Law and Practice Contributed by: Cláudio Finkelstein, Maria Isabel Gori Montes and Laura Martini Brevilieri, Finkelstein Advogados
3.3 National Courts’ Approach There is no consolidated case law in Brazil establish - ing a specific test to determine the law governing the arbitration agreement as distinct from the law of the underlying contract or the law of the seat. In practice, courts tend to give effect to the parties’ intention and to uphold the arbitration agreement, consistently with their pro-arbitration stance. As to enforcement, Brazilian courts consistently enforce arbitration agreements. Once a valid arbitra - tion clause is identified, the court will decline jurisdic - tion over the merits and refer the parties to arbitration. This reflects the principle of kompetenz - kompetenz , under which it is primarily for the arbitral tribunal to rule on the validity of the arbitration agreement, with limited judicial review beforehand. 3.4 Validity Article 8 of the BAA adopts the principle of separa - bility: the arbitration clause is legally independent from the main contract in which it is contained. As a result, the invalidity, termination or rescission of the main contract does not, by itself, affect the validity or enforceability of the arbitration clause, and any chal - lenge to the main contract will not prevent the dispute from being referred to arbitration. The sole paragraph of Article 8 links separability to the kompetenz - kompetenz principle, empowering the arbitral tribunal to rule, in the first instance, on its own jurisdiction and on the existence, validity and effec - tiveness of both the arbitration agreement and the underlying contract. Accordingly, arbitration clauses generally survive defects affecting the main contract, unless the alleged invalidity concerns the arbitration agreement itself.
tors must be odd (Article 13, paragraph 1). Where the arbitration is institutional, the rules of the chosen insti - tution govern the appointment procedure, provided legal limits are respected; the parties may, however, agree to disapply any rule restricting their choice to the institution’s closed list of arbitrators (Article 13, paragraph 4). In light of the principle of party autonomy, the parties may set objective selection criteria, such as techni - cal qualifications or experience, always subject to the arbitrator’s duties of impartiality and independence. 4.2 Default Procedures Where the arbitration is institutional, the rules of the chosen institution govern the appointment and typi - cally provide a default mechanism for the institution to appoint arbitrators if the parties’ chosen method fails. Where the arbitration is ad hoc, or where no institu - tional mechanism resolves the impasse, the interested party may resort to the courts under Article 7 of the BAA to supply the missing appointment and ensure the constitution of the tribunal. Judicial intervention is therefore subsidiary, limited to situations where no institutional rule applies or where the agreed proce - In Brazil, judicial involvement in the appointment of arbitrators is exceptional. As a rule, the constitution of the arbitral tribunal follows the mechanism agreed by the parties or, in institutional arbitration, the rules of the chosen institution. Court assistance may be available where the agreed mechanism cannot operate properly – for example, where the arbitration clause is silent or incomplete on the appointment process, or where one party refus - es to co-operate in constituting the tribunal. In such cases, Articles 6 and 7 of the BAA allow the interested party to seek judicial assistance so that the arbitration may proceed. Defects in the appointment of arbitra - tors may also be raised at the annulment or enforce - ment stage, particularly where they involve a breach of mandatory legal requirements or of due process. The limits on this power are significant: judicial inter - vention is subsidiary and, as a rule, courts must dure proves ineffective. 4.3 Court Intervention
4. The Arbitral Tribunal 4.1 Limits on Selection
In Brazil, the parties’ autonomy to select arbitrators is broad but subject to limits. Any legally capable indi - vidual may serve as arbitrator, and there is no nation- ality requirement. Arbitrators must be impartial and independent, pursuant to Articles 13, 14 and 20 of the BAA. In collegiate tribunals, the number of arbitra -
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