BRAZIL Law and Practice Contributed by: Cláudio Finkelstein, Maria Isabel Gori Montes and Laura Martini Brevilieri, Finkelstein Advogados
clarification of the award within five days (Article 30) to correct a material error, clarify an obscurity, doubt or contradiction, or address an omission, without altering
tend to order the unsuccessful party to reimburse the reasonable and proven costs incurred by the prevail - ing party, including arbitration costs, the tribunal’s fees and expert fees. Attorneys’ fees require a distinct analysis. Brazilian law distinguishes between contractual fees (agreed between a party and its own counsel) and statutory fees awarded to the prevailing party’s counsel ( hon- orários de sucumbência ). In court litigation, the lat - ter belong to the lawyer as an autonomous right of a maintenance nature, generally set between 10% and 20% of the value of the award or economic benefit (Article 85 of the CCP). In arbitration, by contrast, nei - ther type of fee is awarded automatically: tribunals will generally allocate attorneys’ fees only where the parties have consented to such allocation in the arbi - tration clause, the terms of reference or the applicable procedural rules and, in the absence of such consent, commonly refrain from allocating them. Interest and monetary adjustment may be awarded where provided for in the contract or under the appli - cable substantive law. In Brazil, arbitral awards are not subject to appeal on the merits: under Article 18 of the BAA, the arbitrator decides as a judge in fact and in law, and the award is not subject to appeal or to confirmation by the courts. The only recourse is to seek the annulment (setting- aside) of the award, on the exhaustive grounds listed in Article 32 of the BAA – such as the nullity of the arbitration agreement, an award rendered by someone who could not act as arbitrator, an award exceeding the limits of the arbitration agreement, or a violation of due process, equal treatment, impartiality or the adversarial principle. The courts do not review the merits of the decision. Annulment may be pursued in two ways: • by an autonomous annulment action, which must be filed within 90 days of receipt of the award or 11. Review of an Award 11.1 Grounds for Appeal
the substance of the decision. 10.2 Types of Remedies
There is no provision in the BAA setting out a closed list of remedies that an arbitral tribunal may or may not award. As a rule, tribunals have broad powers to grant effective relief, subject to arbitrability, the scope of the arbitration agreement, the parties’ claims, the applicable law, mandatory rules, good morals and Brazilian public policy. Accordingly, the remedies available in judicial pro - ceedings may generally be awarded in arbitration, including damages, specific performance, declaratory relief, rectification and injunctive relief. As noted pre - viously, however, arbitrators have no coercive pow - ers, so any compulsory enforcement must be sought before the state courts. Punitive damages in the common law sense are not provided under Brazilian law, under which compensa - tion is measured by the extent of the damage (Article 944 of the BCC), including material and moral (non- pecuniary) damages, which are fully recoverable – even though Brazilian courts recognise that their assessment carries a certain deterrent or exemplary function. Punitive damages may be considered where permitted by the law applicable and, even then, sub - ject to Brazilian public policy, it being understood that their presence does not, in itself, constitute a breach of public policy capable of barring recognition. 10.3 Recovering Interest and Legal Costs Arbitral tribunals seated in Brazil may award interest, monetary adjustment, costs and, where applicable, legal fees. Their allocation depends on the parties’ agreement, the applicable procedural rules and the tribunal’s discretion. Article 27 of the BAA requires the award to decide the allocation of the costs and expenses of the arbitration, as well as any amount arising from bad-faith litigation, subject to the terms of the arbitration agreement. There is no mandatory “costs follow the event” rule in Brazilian arbitration. In practice, however, tribunals
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