The Superior Court of Brazil published its decision on the jurisdiction of the arbitration tribunal in a case brought by Petrobras against the Brazilian oil and gas regulatory agency, Agência Nacional do Petróleo, Gás Natural e Biocombustíveis (ANP). The dispute related to an ANP board resolution on the concession agreements in place for the exploration and production of oil and gas fields that would have resulted in an additional charge of BRL2.9 billion (approximately USD880 million) to Petrobras.
In 2014, ANP passed a board resolution requiring the unification of seven oil and gas fields. Unification led to an increase in the rate of the “special participation” payable by Petrobras to ANP. “Special participation” is a government levy calculated based on the volume of oil and gas produced from a field and takes into account factors such as the net production volume and the location of the fields.
Petrobras commenced arbitration proceedings against ANP under the concession agreement claiming that the ANP board resolution resulting in the increased rate was invalid. ANP sought to block the proceedings by arguing that the tribunal lacked the competence to decide the merits of the case. Under Brazilian law arbitration tribunals can only rule on disputes relating to “disposable rights”. ANP argued that its right to charge special participation was a right ANP had as a regulator and therefore could not be a “disposable right” capable of being arbitrated. Pending arbitration, Petrobras requested interim measures to stop ANP demanding payment of the higher rate of special participation.
Following rulings in the lower courts and from the arbitral tribunal, Petrobras made an application to the Superior Court. The Superior Court found that the arbitral tribunal was competent to rule on its own jurisdiction and based its judgment on the “competence-competence” principle.
The competence-competence principle is a general principle of international commercial arbitration; a tribunal can make a determination as to its own jurisdiction to deal with substantive claims in dispute. However, an enforcing court that is not at the seat of the arbitration can re-examine the tribunal’s jurisdiction. If a national court determines that the tribunal lacked competent jurisdiction, then it may determine that the arbitration award is invalid and unenforceable.
In the Petrobras case, the Superior Court found that issues arising out of a contract entered into by a public entity relate to “disposable rights” and therefore could be subject to arbitration. The Superior Court left the question of whether the rights at the centre of the dispute were “disposable rights” to the arbitration tribunal to determine.
The ruling is significant as it could be seen to demonstrate the Superior Court’s pro-arbitration stance and the approach of Brazilian law to arbitration disputes where public administration powers are involved. ANP has initiated a public consultation on the latest version of its arbitration clause and it seems the clause will be reviewed to bring additional clarity to this issue.