BRAZIL Law and Practice Contributed by: Cláudio Finkelstein, Maria Isabel Gori Montes and Laura Martini Brevilieri, Finkelstein Advogados
determine expert evidence and require the production of documents, whether at the request of the parties or on their own initiative. The tribunal’s powers are stronger in relation to the parties, who are bound by the arbitration agreement and by the procedural orders issued in the arbitration. If a party fails to comply with an evidentiary order, the tribunal may draw adverse inferences or attach other procedural consequences to that conduct – an approach reflected in Article 22, paragraph 2 of the BAA and in the rules commonly applied in internation - al arbitration – provided that due process is respected (Article 21, paragraph 2). The position differs for non-parties. Arbitrators have no direct coercive powers and cannot compel third parties. Where compulsory measures are required – for example, the coercive attendance of a reluctant witness or the production of documents held by a third party – the tribunal must seek court assistance through an arbitral letter ( carta arbitral , Article 22-C of the BAA), and enforcement ultimately depends on the state courts. In Brazil, confidentiality is not established as a broad statutory rule applicable to all participants. The BAA requires arbitrators to act with discretion, while con - fidentiality as such is commonly provided for in insti - tutional rules or in the parties’ agreement, binding arbitrators, tribunal secretaries, experts, the parties and other participants. Confidentiality may be limited in certain circumstanc - es – for example, arbitrations involving public entities (which are subject to the principle of publicity under Article 2, paragraph 3 of the BAA), disclosure duties applicable to publicly held companies, or the need to produce documents in court proceedings to protect a party’s rights. Court proceedings connected to a confidential arbitration may be placed under judicial secrecy where the confidentiality of the arbitration is demonstrated, although there has been a trend at the São Paulo Court of Justice towards a more restrictive 9. Confidentiality 9.1 Extent of Confidentiality
approach, limiting secrecy to the documents and evi - dence directly connected to the arbitration rather than automatically sealing the entire court record. As to subsequent use, evidence produced in arbitra - tion may in principle be used in later judicial, arbitral or administrative proceedings as “borrowed evidence”, provided it was lawfully obtained, is relevant, and the adversarial principle is observed. Where the arbitra - tion is confidential, however, the use of such evidence may be constrained by the applicable confidentiality obligations, and admissibility will depend on balanc - ing the borrowed-evidence doctrine against the con - fidentiality owed in the original arbitration. An arbitral award rendered in Brazil must comply with the formal requirements set out in Article 26 of the BAA. The award must: • be made in writing; • identify the parties; • summarise the procedure (the report); • state the reasons for the decision, addressing the questions of fact and law; • contain the operative part, including any time limit for compliance; and • indicate the date and place where it was rendered. The award must remain within the limits of the arbi - tration agreement and of the claims submitted by the parties. The tribunal need not address every argument in detail, but the reasoning must be sufficient to allow the parties to understand the factual and legal basis of the decision. 10. The Award 10.1 Legal Requirements As to timing, the award must be rendered within the period agreed by the parties. Failing agreement, the statutory period is six months from the institution of the arbitration or the replacement of an arbitrator (Arti - cle 23). A late award is not automatically void: the interested party must first notify the tribunal, grant - ing an additional ten-day period for the award to be rendered; only then may the consequences of default apply (Article 12, III). The parties may also request
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