Arbitration Procedure in Brazil

Introduction

Arbitration procedure in Brazil is governed by Law 9.307/1996 (the Brazilian Arbitration Act), as amended by Law 13.129/2015. The Act provides a flexible framework for both institutional and ad hoc arbitration, allowing parties to define procedural rules or adopt the rules of recognized arbitral institutions. The procedure reflects international best practices while accommodating Brazilian legal traditions.

Arbitration Agreement

Validity Requirements

The arbitration agreement must: (i) be in writing; (ii) identify the parties; (iii) specify the subject matter; (iv) be signed by the parties or their representatives; and (v) concern patrimonial disposable rights.

Arbitration Clause

The arbitration clause (cláusula compromissória) is an agreement to submit future disputes to arbitration. It may be: (i) full (cheia), specifying the arbitration rules; or (ii) empty (vazia), merely agreeing to arbitrate without specifying rules. The 2015 amendment validated the independent arbitration clause, which survives the voidness of the main contract.

Submission Agreement

The submission agreement (compromisso arbitral) is entered into after a dispute arises. It must specify: (i) the parties; (ii) the arbitrator(s); (iii) the subject matter; and (iv) the applicable rules.

Arbitral Tribunal

Composition

The parties may agree on the number of arbitrators. In the absence of agreement, the default is three arbitrators. The appointment procedure is: (i) each party appoints one arbitrator; (ii) the two party-appointed arbitrators select the presiding arbitrator; (iii) if a party fails to appoint, the court may do so.

Qualifications

Arbitrators must be capable persons (pessoas capazes). No specific professional qualification is required, though specialized knowledge is desirable.

Challenge and Removal

Arbitrators may be challenged on grounds of impartiality, independence, or lack of qualifications. The challenge is decided by the arbitral institution or, in ad hoc arbitration, by the competent court.

Procedural Framework

Party Autonomy

The parties are free to determine the procedure. If they do not, the arbitral tribunal may establish the procedure as it deems appropriate, respecting: (i) adversarial proceedings; (ii) equal treatment of parties; and (iii) impartiality of the arbitrator.

Seat of Arbitration

The seat (sede) of arbitration determines the applicable procedural law and the competent court for judicial assistance. The parties may choose the seat, including a foreign seat for international arbitration.

Language

The parties may choose the language of arbitration. In the absence of agreement, the tribunal determines the language.

Preliminary Proceedings

The tribunal may: (i) rule on its own jurisdiction (kompetenz-kompetenz); (ii) order interim measures; (iii) determine the applicable law; and (iv) set the procedural timetable.

Evidence

The tribunal determines the admissibility, relevance, and weight of evidence. Brazilian arbitration practice typically combines: (i) documentary evidence; (ii) witness testimony; (iii) expert evidence; and (iv) site inspections.

Interim Measures

Types

Interim measures available include: (i) provisional and protective measures; (ii) security for costs; and (iii) orders to preserve evidence. The tribunal may grant these measures unless the parties agree otherwise.

Judicial Assistance

The competent court may: (i) grant interim measures before the tribunal is constituted; (ii) order the production of evidence; (iii) enforce the tribunal’s interim orders; and (iv) assist in the appointment of arbitrators.

The Award

Form and Content

The award must be: (i) in writing; (ii) signed by the arbitrators; (iii) reasoned; (iv) dated; and (v) indicate the seat of arbitration. The award decides the dispute and allocates costs.

Types

The tribunal may render: (i) interim awards on jurisdiction or specific issues; (ii) partial awards on part of the claim; (iii) consent awards reflecting party agreement; and (iv) final awards resolving all issues.

Institutional vs. Ad Hoc Arbitration

Institutional

Institutional arbitration is administered by a permanent arbitral institution. Major Brazilian institutions include: CAM-CCBC, CAMARB, FGV, FIESP, and CBMA. Institutions provide administrative support, procedural rules, arbitrator appointment, and cost management.

Ad Hoc

Ad hoc arbitration is conducted without institutional administration, with the parties and tribunal managing all aspects. Ad hoc arbitration is more flexible but requires greater party cooperation.

Recognition and Enforcement

Domestic Awards

Domestic awards do not require judicial confirmation and are enforceable as res judicata. Annulment is available only on limited grounds (Article 32): (i) nullity of the arbitration agreement; (ii) incapacity of parties; (iii) violation of due process; (iv) award exceeding the scope; (v) failure to decide all issues; and (vi) arbitrator corruption.

Foreign Awards

Brazil acceded to the New York Convention (1958) in 2002. Foreign awards are recognized and enforced by the STJ (Article 105, I, i, Constitution). The STJ has adopted a pro-arbitration stance, applying the grounds for refusal restrictively.

Conclusion

Brazilian arbitration procedure provides a modern, flexible, and effective framework for resolving commercial disputes. The Arbitration Act, as amended, aligns Brazil with international best practices. The combination of party autonomy, institutional rules, and a pro-arbitration judiciary has made Brazil a leading arbitration jurisdiction in Latin America.