BRAZIL Law and Practice Contributed by: Godofredo Mendes Vianna, Camila Mendes Vianna Cardoso and Lucas Leite Marques, Kincaid | Mendes Vianna Advogados
7.2 Enforcement of Law and Arbitration Clauses Incorporated Into a Bill of Lading As mentioned in 7.1 Enforcement of Law and Juris- diction Clauses Stated in Bills of Lading , if the con - tracting parties expressly agree on a specific arbitra - tion clause, that clause shall be binding. 7.3 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards Brazil has ratified the 1958 Convention on the Rec - ognition and Enforcement of Foreign Arbitral Awards (New York Convention). The enforcement of foreign judgments and awards in Brazil depends on an exe - quatur, to be obtained through a procedure regulated by the internal procedural rules of the Superior Court of Justice and by the provisions of the Civil Proce - dural Code of 2015. The exequatur is the authorisa - tion granted by the Superior Court of Justice for all procedures requested by a foreign judicial authority to be validly executed in the jurisdiction of the com - petent Brazilian judge. The Superior Court of Justice recognises foreign judgments and awards if they are not contrary to the Brazilian legal order, public policy, national sovereignty or good moral conduct. When the exequatur is granted, the award is forwarded to the federal judge of the state in which it will be enforced. 7.4 Arrest of Vessels Subject to Foreign Arbitration or Jurisdiction Brazil has not ratified the International Convention on Arrest of Ships. According to domestic legislation, in order to request an arrest in Brazil, Brazilian courts must also have jurisdiction over the relevant claim. It is not permissible to file an arrest simply as a precau - tionary matter to secure a claim that will be attempted in another jurisdiction, although it is possible to seek a precautionary order prior to arbitration. 7.5 Domestic Arbitration Institutes Brazil has domestic arbitral institutions with arbitrators specialised in maritime matters, such as: • the Brazilian Center for Mediation and Arbitration (CBMA); • the Ciesp/Fiesp Chamber of Conciliation, Media - tion and Arbitration;
• the Center for Arbitration and Mediation of the Chamber of Commerce Brazil–Canada (CAM- CCBC); • the Brazilian Maritime Law Association; and • the Mediation and Arbitration Chamber of the Getúlio Vargas Foundation. The CBMA, for instance, has a specialised commis - sion to deal with maritime and port-related disputes, composed of competent and qualified practitioners and arbitrators with the expertise to address the grow - ing number of disputes in this sector. Arbitration is an increasing practice in Brazil, following the arbitration law (Law No 9,307/96), the ratification of the New York Convention in 2002, the ratification of the CISG in 2013, the enactment of a mediation law in 2015 and the reform of the Arbitration Act in 2015 and the Civil Procedural Code in 2015, which provides for a mandatory mediation procedure prior to judicial disputes. 7.6 Remedies Where Proceedings Are Commenced in Breach of Foreign Jurisdiction or Arbitration Clauses The defendant should challenge the court’s jurisdic - tion when presenting its defence by alleging that a foreign court or arbitration clause should be observed. Therefore, if a lawsuit is filed in breach of an arbitration or foreign jurisdiction clause, the case can be extin - guished in accordance with the Civil Procedural Code, as long as the defendant invokes that clause. 8. Ship-Owners’ Income Tax Relief 8.1 Exemptions or Tax Reliefs on the Income of Ship-Owners’ Companies Brazilian tax legislation provides for a zero withhold - ing tax (WHT) rate reduction on the payment of char - ter hire abroad, unless the beneficiary is located in a “low-tax jurisdiction”, in which case WHT is triggered at 25%. For charter-hire payment, credit or remittances in the so-called “split contract structure” applied to oil and gas exploration and production (E&P) and regasifica - tion activities, there are maximum charter ratios vis-à-
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