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What are the validity requirements for an arbitration agreement?
In order to be valid under Brazilian law, an arbitration agreement must be agreed in writing by parties with legal capacity. In addition, the arbitration agreement must concern disposable patrimonial rights.
To be complete, the agreement must also specify:
- the qualification of the parties and the arbitrators (or arbitration institution);
- the subject matter of the disputes to be arbitrated (which must relate to patrimonial and disposable rights); and
- the seat of the arbitration.
If the arbitration agreement does not contain sufficient information for the commencement of proceedings – for example, a reference to the rules of an arbitration institution, when the dispute arises, the party seeking to commence arbitration must resort to the national courts for a proceeding to complete the agreement.
Enforcement of agreements
How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements?
Since the Brazilian Supreme Court declared the constitutionality of arbitration agreements in 2001, they are generally enforced in Brazil, according to the terms of the Arbitration Act. Thus, when a dispute which is subject to an arbitration agreement is submitted to a national court, the court will generally refer the parties to arbitration – even if one party objects to the existence or validity of the arbitration agreement, as the arbitral tribunal is the competent body to decide on this issue.
The national courts have consistently demonstrated a favourable attitude towards arbitration agreements by, for example, regularly refusing to grant anti-arbitration injunctions.
Can an arbitral tribunal with its seat in your jurisdiction consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?
The Arbitration Act does not regulate the consolidation of proceedings. As a result, whether arbitration proceedings seated in Brazil can be consolidated will depend on the rules of the relevant arbitration institution. For example, proceedings to which the arbitration rules of the International Chamber of Commerce apply may be consolidated under those rules.
Choice of law
How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
The Arbitration Act imposes no restrictions on the substantive law that the parties may choose, provided that this choice does not offend Brazilian public policy and moral values.
Where the parties’ choice of law is unclear, the tribunal will conduct a conflict of laws analysis. Although there is no consensus on which conflict of laws rules should apply in this regard, tribunals seated in Brazil often apply the Brazilian conflict of law rules, which are established by the Introductory Rules to the Brazilian Law (Decree-Law 4,657/42). Article 9 of this law recognises the lex loci contractus rule, which provides that the law of the country in which the contract was executed should apply. Article 9 further provides that if the parties executed the contract in different venues, the law of the claimant’s country of residence will prevail.
Are there any provisions on the separability of arbitration agreements?
Article 8 of the Arbitration Act provides that the arbitration agreement is separable from the underlying contract in which it is contained. Thus, the validity and enforceability of each must be analysed separately.
Are multiparty agreements recognised?
In light of the 2015 reform, the Arbitration Act now refers to multiparty agreements and implies their recognition. However, the act does not directly address multiparty agreements, which are subject to the same validity requirements as any arbitration agreement.
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