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Key research themes
1. How has Brazilian arbitration law evolved to enable effective dispute resolution, especially involving the State and state-owned entities?
This theme investigates the legislative and judicial developments that shaped arbitration in Brazil, focusing on the legal framework allowing the State and its instrumentalities to engage in arbitration and how courts have interpreted the constitutionality and scope of such arbitration. It matters because Brazil’s historical protectionism and judicial backlog hindered arbitration growth. Recent reforms reflect a strategic shift toward arbitration as a viable alternative dispute resolution method, crucial for international commerce and attracting foreign investment, particularly in infrastructure involving state entities.
Key finding: Analyzes four landmark legislative and judicial events from 1996 to 2015, demonstrating how the enactment and constitutional recognition of the 1996 Arbitration Law, and the 2015 Amendment, solidified arbitration in Brazil,... Read more
Key finding: Examines Brazil’s historical and legal transition from skepticism toward arbitration to widespread acceptance, emphasizing Supreme Federal Court decisions that underpin judicial cooperation with arbitration, particularly... Read more
Key finding: Identifies two key 19th-century decrees that limited arbitration growth by restricting arbitration agreements to mere promises and requiring foreign awards to be acknowledged before Brazilian enforcement. It shows how these... Read more
Key finding: Provides early critical analysis of the 1996 Arbitration Law’s improvements over prior legislation, including enforceability of arbitration clauses, elimination of previous procedural hurdles for foreign awards, and expanded... Read more
Key finding: Analyzes the 2018 Rio de Janeiro State Decree regulating arbitration involving state-owned entities, explaining the statute’s framework mandating Brazilian law, Portuguese language, institutional arbitration, and local seat... Read more
2. What are the challenges and jurisprudential approaches in establishing arbitrability and admissibility of arbitration clauses in Brazilian law?
This theme focuses on the doctrinal and judicial understanding of which disputes can be submitted to arbitration in Brazil, including issues surrounding labor, consumer, corporate, and state-involved disputes. It addresses party autonomy limits, constitutional hurdles, and how Brazilian courts and legislators balance arbitrability against public interest safeguards. This is critical because defining arbitrability influences arbitration’s scope and legitimacy, affecting dispute resolution efficiency and parties’ rights.
Key finding: Argues that the 2015 amendments to the 1996 Arbitration Act did not fundamentally change the established doctrinal and jurisprudential approach to arbitrability in Brazil, which predicates arbitrability on disposable... Read more
Key finding: Addresses constitutional debates around the scope of arbitration, including non-arbitrability of certain public law and labor disputes. Identifies that while arbitration became more enforceable, constitutional provisions and... Read more
Key finding: Reports a landmark Superior Labour Tribunal decision upholding an arbitration clause in a labor dispute involving an international organization with immunity, emphasizing arbitration’s role in guaranteeing access to justice... Read more
Key finding: Provides an overview of arbitration agreement requirements and party autonomy under Brazilian law, including the enforceability of arbitration clauses in contracts, with special rules on adhesion contracts and state... Read more
Key finding: Examines subjective and objective arbitrability, detailing capacity requirements and patrimonial criteria underpinning the existence of an arbitration agreement. Clarifies that the Brazilian Civil Code and arbitration statute... Read more
3. How do procedural aspects—especially rules of evidence and award enforcement—shape the practice and perception of arbitration in Brazil?
This theme explores the procedural dimension of Brazilian arbitration, including evidence rules influenced by civil law and common law traditions, enforcement challenges of arbitral awards, and the perception of arbitration costs as a continuing concern. Understanding these procedural and practical issues is vital for realizing arbitration’s effectiveness and legitimacy in Brazil and for improving institutional practices.
Key finding: Discusses the hybrid procedural framework in international commercial arbitration, where Brazilian civil law's preference for written evidence and the common law emphasis on oral testimony create challenges. Demonstrates that... Read more
Key finding: By contextualizing the historical legal constraints on arbitration, it indirectly highlights procedural inefficiencies in traditional litigation that arbitration aims to overcome, underscoring procedural modernization as key... Read more
Key finding: Analyzes the complexity and unpredictability of arbitration costs in Brazil, focusing on 'honorários sucumbenciais' (adverse costs) as a unique element imposing penalties on the losing party and reward on counsel. Highlights... Read more
Key finding: Evaluates Brazilian courts’ evolving interpretation of the public policy exception in the recognition and enforcement of foreign arbitral awards under the New York Convention. Finds increasing alignment to international... Read more
Key finding: Explores the procedural and constitutional scope of arbitrators’ jurisdiction to assess and declare laws unconstitutional within arbitral proceedings. Highlights Brazilian law’s recognition of arbitrators’ jurisdictional... Read more