Jonathan C. Hamilton, et al., “Brazil: Enforcement of Arbitral Awards,” International Disputes Quarterly (2007)

Brazilian courts have faced various arbitration recognition and enforcement issues. Following are some of the more noteworthy decisions in this field.

Several developments in the past decade have contributed to increased legal certainty for arbitration in Brazil, as reflected in a series of rulings by Brazilian courts.

In 2001, the Brazilian Federal Supreme Court upheld the constitutionality of Brazil’s 1996 Lei de Arbitragem (“Arbitration Law”) (MBV Commercial and Export Management Establishment v. Resil Industria e Comércio Ltda., Kingdom of Spain, December 12, 2001 (“MBV Commercial “)). The Arbitration Law, Law 9307, was based on the Spanish arbitration law of 1988 and the UNCITRAL-Model Law on International Commercial Arbitration. It made it considerably easier to enforce an arbitration agreement and the resulting arbitral award by eliminating certain burdensome requirements. For example, before the enactment of the Arbitration Law, Brazilian law required the so-called “double exequatur”—i.e., court recognition of foreign awards by the courts of the forum and by Brazilian courts—and precluded the enforcement of a pre-dispute arbitration agreement. In addition, Brazil ratified the United Nations Convention for the Recognition of Foreign Arbitration Awards (the “the New York Convention”) in 2002. In this context, Brazilian courts have faced various recognition and enforcement issues. Following are some of the more noteworthy decisions in this field.

Arbitration agreements have been given effect over procedural formalities:

• The Superior Court of Justice, which is charged with considering the recognition of foreign arbitral awards under a 2004 constitutional amendment, held that the respondent, by participating in the arbitration without challenging the jurisdiction of the arbitral tribunal, had tacitly recognized the existence of an arbitration clause (L’Aiglon S/A v. Têxtil União S/A, May 18, 2005)

Disputes arising from administrative contracts have been held subject to arbitration:

• Several Brazilian courts have held that the primary public interest, which is non-negotiable and subject to the sole jurisdiction of the courts, is distinct from the interests of the public administration, which can be subject to arbitration. Thus, state-owned companies may be parties to arbitration proceedings relating to negotiable rights (Companhia Paranense de Gás (Compagás) v. Consórcio Carioca-Passarelli, June 15, 2004; AES Uruguaina v. Companhia Estadual de Energia Eléctrica (CEEE), October 25, 2005; and Nuclebrás Equipamentos Pesados SA (NUCLEP) v. TMC Terminal Multimodal de Coroa Grande SPE SA, December 7, 2005)

• The Supreme Court has concluded that it is legal for an arbitral tribunal to decide disputes involving private and public joint stock companies (“sociedades de economia mista”) when they have entered into an arbitration agreement. (União v. TMC Terminal Multimodal de Cora Grande SPE S.A., September 27, 2006) The Court reasoned that these private-public companies are on equal footing with private companies when they conduct ordinary commercial transactions and are therefore not subject to restrictions on their ability to enter into arbitration agreements.

• There is, however, one case pending where a court in the State of Paraná has granted an anti-arbitration injunction based mainly on the argument that the claimant was a corporation controlled by the government of the State of Paraná (Companhia de Energia Eléctrica do Paraná (COPEL) v. UEG Araucária, July 5, 2004)

The Superior Court of Justice has tempered the procedural hurdles on enforcement, holding, among other things, that:

• Foreign arbitral awards or judicial decisions may produce effects in Brazil while an application for ratification is pending (Article 4.3, Resolution No. 9 of May 4, 2005)

• Injunctions may be granted in applications for the ratification of foreign arbitral awards or judicial decisions (Article 4.3, Resolution No. 9 of May 4, 2005)

• The existence of a pending action to set aside an arbitral award does not impede its recognition (First Brands do Brasil Ltda. & STP do Brasil Ltd. v. STP Petroplus Produtos Automoviles S/A & Petroplus Sul Comercio Exterior S/A, November 23, 2006)

The Supreme Court has acknowledged that it may refuse to enforce foreign arbitral awards only on limited grounds, including:

• Upon determination that the award fails to comply with certain formal requirements (Tremond Alloys and Metals Corp v. Metaltubos Indústria e Comércio de Metais, June 19, 2006)

• When the award is contrary to public policy or national sovereignty (Id.; Oleaginosa Moreno Hermanos Sociedad Comercial Industrial Financiera Immobiliaria y Agropecuaria v. Minho Paulist Ltda., May 17, 2006)[1]

• When there is a violation of the right to counsel or to legal defense (Grain Partners SPA v. Oito Exportação e Importação de Cereais e Defensivos Agrícolas Ltda. & Cooperativa dos Produtores e Trabalhadores Urbanos e Rurais de Sorriso Ltda.— COOPERGRÃO, October 18, 2006)

Although the Supreme Court has not upheld all arbitral awards submitted for recognition (e.g., Oleaginosa Moreno Hermanos Sociedad Anónima Comercial Industrial Financiera Inmobiliaria y Agropoecuaria v. Moinho Paulista Ltda., May 17, 2006), the decisions cited above suggest a trend that appears to follow the precedent set by MBV Commercial in confirming the constitutionality of the Arbitration Law and the effectiveness of arbitration.

Several developments in the past decade have contributed to increased legal certainty for arbitration in Brazil, as reflected in a series of rulings by Brazilian courts.