BRAZIL Law and Practice Contributed by: Godofredo Mendes Vianna, Camila Mendes Vianna Cardoso and Lucas Leite Marques, Kincaid | Mendes Vianna Advogados
6.2 Enforcement of Law and Arbitration Clauses Incorporated Into a Bill of Lading As mentioned in 6.1 Enforcement of Law and Jurisdiction Clauses Stated in Bills of Lading , if the contracting parties expressly agree on a specific arbitration clause, that clause shall be binding. 6.3 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards Brazil has ratified the 1958 Convention on the Recognition and Enforcement of Foreign Arbi - tral Awards (New York Convention). The enforce - ment of foreign judgments and awards in Bra - zil depends on an exequatur, to be obtained through a procedure regulated by the internal procedural rules of the Superior Court of Jus - tice and by the provisions of the Civil Procedural 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 competent Brazilian judge. The Superior Court of Justice recognises foreign judgments and awards if they are not contrary to the Brazil - ian 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. 6.4 Arrest of Vessels Subject to Foreign Arbitration or Jurisdiction Brazil has not ratified the International Conven - tion 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 precautionary matter to secure a claim that will be attempted in another jurisdic - tion, although it is possible to seek a precaution - ary order prior to arbitration.
6.5 Domestic Arbitration Institutes Brazil has domestic arbitral institutions with arbi - trators specialised in maritime matters, such as the Brazilian Center for Mediation and Arbitra - tion (CBMA); the Ciesp/Fiesp Chamber of Con - ciliation, Mediation and Arbitration; the Center for Arbitration and Mediation of the Chamber of Commerce Brazil–Canada (CAM-CCBC); the Brazilian Center of Maritime Arbitration; and the Mediation and Arbitration Chamber of the Getúlio Vargas Foundation. The CBMA, for instance, has a specialised com - mission to deal with maritime and port-related disputes, composed of competent and qualified practitioners and arbitrators with the expertise to address the growing 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 of 2015, which provides for a mandatory mediation procedure prior to judicial disputes. 6.6 Remedies Where Proceedings Are Commenced in Breach of Foreign Jurisdiction or Arbitration Clauses The defendant should challenge the court’s juris - diction 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 extinguished in accord - ance with the Brazilian Civil Procedural Code, as long as the defendant invokes that clause.
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