BRAZIL Law and Practice Contributed by: Cláudio Finkelstein, Maria Isabel Gori Montes and Laura Martini Brevilieri, Finkelstein Advogados
• deciding the dispute at law or in equity, if so authorised by the parties (Article 2). As to their duties, arbitrators must act with impartiality, independence, competence, diligence and discretion (Article 13, paragraph 6), and are subject to the duty of disclosure and to the grounds for impediment and suspicion (Article 14). They must observe the proce - dural guarantees of Article 21, paragraph 2 – adver - sarial proceedings, equal treatment of the parties, impartiality and free evaluation of the evidence – and must render the award within the agreed time limit or, failing agreement, within six months (Article 23). Arbitrators have no direct coercive authority and may require court assistance for compulsory measures. They must also remain within the limits of the arbitra - tion agreement and of the parties’ claims; otherwise, the award may be subject to annulment under Article 32 of the BAA. 7.4 Legal Representatives Under Article 21, paragraph 3 of the BAA, parties may be represented or assisted by any person of their choice in arbitral proceedings. There are there - fore no mandatory local qualification requirements for legal representatives in arbitrations seated in Bra - zil. This applies to both domestic and international arbitrations. Parties may be represented by Brazilian lawyers, foreign lawyers, in-house counsel or other chosen representatives, unless otherwise provided. A distinction must be drawn between representa - tion in arbitration and representation before the state courts. In court proceedings connected to the arbitra - tion, representation must be carried out by lawyers admitted to practice in Brazil. 8. Evidence 8.1 Collection and Submission of Evidence The BAA does not provide a detailed evidentiary regime. Article 22 gives arbitral tribunals broad author - ity to hear the parties and witnesses, order expert evi - dence and determine the production of any other evi - dence considered necessary, whether on request or on the tribunal’s own initiative. Particularly in interna -
tional arbitrations, the taking of evidence is frequently guided by the IBA Rules on the Taking of Evidence in International Arbitration, adopted by agreement or as guidance. In practice: • documentary evidence is usually submitted with the parties’ written pleadings; • document production is generally limited and targeted, rather than broad common law-style discovery; • witness evidence may be presented through writ - ten statements, followed by oral examination and cross-examination at the hearing, especially in international and complex arbitrations, although its scope depends on the parties’ agreement, the institutional rules and procedural orders; and • objections to the production of documents may be raised based on the professional secrecy of lawyers, which is a statutory and ethical duty of the lawyer. 8.2 Rules of Evidence As noted previously, the BAA does not impose a detailed evidentiary regime, and Article 22 gives the tribunal broad authority to determine and assess the evidence it considers necessary, whether on its own initiative or at the request of the parties. The key point for present purposes is that the rules of evidence applicable to domestic court proceedings do not apply automatically to arbitration, unless the parties so agree or the tribunal considers them useful by analogy. The tribunal therefore has broad discretion to assess the relevance, materiality and sufficiency of the evidence, without being bound by the CCP’s evidentiary rules. Fundamental principles nevertheless remain appli - cable, including due process, equal treatment of the parties, procedural good faith and the constitutional prohibition on the use of unlawfully obtained evidence (Article 5, LVI of the Federal Constitution). 8.3 Powers of Compulsion Arbitral tribunals seated in Brazil may order the pro - duction of documents, witness testimony and other evidence necessary to decide the dispute. Article 22 of the BAA empowers arbitrators to hear witnesses,
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