BRAZIL Law and Practice Contributed by: Cláudio Finkelstein, Maria Isabel Gori Montes and Laura Martini Brevilieri, Finkelstein Advogados
have also been invoked, although courts apply them with caution and generally require evidence of actual consent or participation, rather than mere member - ship of the same economic group. Brazilian law does not distinguish between domestic and foreign third parties; what matters is whether there is a valid legal basis to bind the non-signatory to the arbitration agreement.
Evidence-based provisional relief ( tutela da evidência , Article 311 of the CCP) may also be available where the right asserted is sufficiently clear, even without urgency. Interim measures ordered by arbitral tribunals are binding on the parties and are not merely recommen - dations. A party that fails to comply may face proce - dural consequences within the arbitration. However, arbitrators do not have direct coercive powers. Where compulsory enforcement is required – particularly against third parties or assets – the tribunal may seek the assistance of the competent state court, including through an arbitral letter ( carta arbitral , Article 22-C of the BAA). 6.2 Role of Courts As discussed previously, state courts play a cen - tral role in interim relief before the arbitral tribunal is constituted. Thereafter, the courts intervene mainly to lend coercive enforcement to measures ordered in the arbitration, including through an arbitral letter (Article 22-C). Brazilian courts may also grant interim relief in aid of foreign-seated arbitrations, particularly where the assets, evidence or persons concerned are located in Brazil. As for emergency arbitrators, the BAA neither express - ly provides for nor prohibits them; their use is accept - ed where the arbitration rules chosen by the parties so provide. Many institutions operating in Brazil, such as the CAM-B3, CAM-CCBC, CAMARB and CBMA, allow for the appointment of emergency arbitrators. Their decisions are binding on the parties while in force, in accordance with the applicable institution - al rules, and may be reviewed, modified or revoked by the arbitral tribunal once constituted. Emergency arbitrators may grant provisional or urgent measures aimed at preserving rights, assets or evidence. Once an emergency arbitrator has been appointed under the applicable rules, the state courts are not expected to intervene. 6.3 Security for Costs The BAA does not expressly regulate security for costs. Nevertheless, it is generally regarded as encom - passed by the arbitral tribunal’s power to grant interim and conservatory measures under Article 22-B of the
6. Preliminary and Interim Relief 6.1 Types of Relief
Arbitral tribunals seated in Brazil may grant prelimi - nary, interim and conservatory relief (Articles 22-A and 22-B of the BAA). This authority derives from the tribunal’s jurisdiction over the dispute and does not depend on an express provision in the arbitration agreement. Before the tribunal is constituted, parties may seek urgent relief from the state courts. If the request is granted, the interested party must institute the arbitra - tion within 30 days, failing which the measure ceases to be effective (Article 22-A, sole paragraph). Once the tribunal is in place, it may maintain, modify or revoke measures previously granted by the court and may also issue new interim orders (Article 22-B, sole para - graph). Interim relief may be either precautionary (aimed at preserving the usefulness of the final award) or antici - patory (aimed at provisionally granting part of the relief sought where the legal requirements are met). Com - mon forms of relief include: • attachment or freezing of assets; • preservation or restoration of the status quo; • orders to prevent aggravation of the dispute; • preservation or advance production of evidence; • orders to refrain from certain conduct; and • measures intended to secure the effectiveness of the final award. Brazilian procedural law generally requires urgent measures to be supported by the likelihood of the right asserted and the risk of harm or of the final deci - sion becoming ineffective (Article 300 of the CCP).
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