BRAZIL Law and Practice Contributed by: Cláudio Finkelstein, Maria Isabel Gori Montes and Laura Martini Brevilieri, Finkelstein Advogados
of the decision on a request for clarification (Article 33, paragraph 1); or • as a defence ( impugnação ) in the enforcement proceedings, should the prevailing party seek to enforce the award (Article 33, paragraph 3). 11.2 Excluding/Expanding the Scope of Appeal Under Brazilian law, the parties cannot, by agreement, either expand or exclude the scope of judicial review of an arbitral award. The award is final and not subject to appeal on the merits (Article 18 of the BAA), and judicial control is confined to the exhaustive grounds for annulment set out in Article 32. 11.3 Standard of Judicial Review Brazilian courts do not conduct a de novo review of the merits of an arbitral award. Judicial review is lim - ited and deferential: the courts may not reassess the facts, the evidence or the legal reasoning adopted by the arbitral tribunal. An award may be challenged only on the restricted grounds set out in Article 32 of the BAA – such as the nullity of the arbitration agreement, a violation of due process or of the adversarial prin - ciple, an award exceeding the limits of the arbitration agreement, or the irregular constitution of the tribunal. The role of the courts is therefore confined to review - ing the validity of the award, not the correctness of the decision on the merits. The recognition and enforcement of foreign arbitral awards is governed by the BAA (Articles 34 to 40), the CCP (Articles 960 to 965) and the Internal Rules of the SCJ (Articles 216-A et seq), whose requirements mir - ror the rationale of the New York Convention. Brazil acceded to the New York Convention without any reservation and incorporated it into domestic law by Decree No 4,311/2002. Brazil is also a party to other relevant instruments, including: 12. Enforcement of an Award 12.1 New York Convention • the 1975 Inter-American Convention on Interna - tional Commercial Arbitration (the “Panama Con - vention”), enacted by Decree No 1,902/1996;
• the 1979 Inter-American Convention on the Extra - territorial Validity of Foreign Judgments and Arbitral Awards (the “Montevideo Convention”), enacted by Decree No 2,411/1997; • the 1998 MERCOSUR Agreement on International Commercial Arbitration, enacted by Decree No 4,719/2003; and • the 1992 Las Leñas Protocol on Jurisdictional Cooperation and Assistance. Each of these instruments applies only where its con - ditions of applicability are met – for example, where the award was rendered in another contracting state. 12.2 Enforcement Procedure Domestic arbitral awards are enforceable in Brazil as judicial enforcement titles. Under Article 31 of the BAA, an arbitral award has the same effect between the parties as a court judgment, and Article 515, VII of the CCP recognises it as an enforceable judicial title. Enforcement is brought before the competent state court; no prior judicial confirmation is required, the court does not review the merits, and the debt - or may raise only the limited defences available in enforcement proceedings (including annulment on the grounds of Article 32, as noted previously). Foreign arbitral awards follow a different route. Under Article 35 of the BAA and Article 105, I, “i” of the Fed - eral Constitution, they must first be recognised by the SCJ. In general, recognition requires the award and the arbitration agreement (with certified copies and a sworn Portuguese translation where applicable) and compliance with the New York Convention and Arti - cles 37 to 39 of the BAA. The SCJ does not reassess the merits – recognition may be refused only on the limited grounds of Articles 38 and 39, such as: • the invalidity of the arbitration agreement; • lack of proper notice; • excess of mandate; • irregular constitution of the tribunal; • a non-binding, annulled or suspended award; • non-arbitrability; or • violation of Brazilian public policy. Once granted, enforcement takes place before the competent federal court.
174 CHAMBERS.COM
Powered by FlippingBook