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The most recent law related to arbitration is Federal Decree No. 6.404/1976) in order to define whether or not shareholders are bound to arbitration clauses included in a company’s by-laws, providing also for the possibility that the dissenting shareholder leave the company. Amendments were also made to the Brazilian Corporation Law (Law No. Recent amendments to the BAL clarified certain issues that have always been controversial under the local legal landscape and provide for: (i) the possibility for government-controlled entities to refer to arbitration their disputes that are related to disposable rights (ii) the possibility to establish arbitration clauses in employment agreements when the employees are directors or statutory managers and (iii) rules for arbitration involving a consumer relationship. Although there are exceptions within the aforementioned matters, requiring a case-by-case analysis, the law is broad and therefore any dispute that is related to disposable rights may be arbitrated. Administrative and judicial claims arising from the activities carried out by private parties under the rules of public departments and/or public agencies (that are of public interest) may not be referred to arbitration, such as environmental, antitrust and competition matters. Generally, a dispute may be referred to arbitration when it is related to disposable rights. Governing Legislationģ.1 Are there any subject matters that may not be referred to arbitration under the governing law of your jurisdiction? What is the general approach used in determining whether or not a dispute is “arbitrable”?
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1550260/RS, Reporting Justice Paulo De Tarso Sanseverino, adjudicated on 12 December 2017). 1614070/SP, Reporting Justice Nancy Andrighi, adjudicated on 26 June 2018 and Special Appeal No. 1509509/SP, Reporting Justice Marco Buzzi, adjudicated on 9 March 2020 Special Appeal No. Brazil has consolidated its position as a pro-arbitration country, and national courts have continued to take a pro-arbitration approach when called upon to decide the validity of arbitration agreements and arbitral awards ( see: Interlocutory Appeal on Special Appeal No. Arbitration has also been integrated into the legal system through several laws, including: the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”), which Brazil ratified in 2002 and the 2016 Brazilian Civil Procedure Code, which contains specific rules to ensure the enforcement of arbitration agreements and arbitral awards.
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Since this decision, the adoption of arbitration as a form of alternative dispute resolution – and, therefore, the enforcement of arbitration agreements – have been widespread in Brazil.
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The BAL does, however, provide additional requirements to enforce arbitration agreements in contracts of adhesion and standard form contracts (Article 4, Second Paragraph), where the signature of the subscribing party is required.ġ.3 What has been the approach of the national courts to the enforcement of arbitration agreements?Īfter the enactment of the BAL in 1996, the incorporation of arbitration as an alternative method for dispute resolution into the Brazilian legal system was virtually stayed until the ratification, by the Brazilian Supreme Court, of the constitutionality of the law in 2001. This ruling was reaffirmed on 4 February 2020 when the STJ issued another decision on this issue in REsp 1.818.982. Faced with this issue, on 26 April 2016, the Federal Court of Appeals ( Superior Tribunal de Justiça – “STJ”), deciding on REsp 1.569.422, ruled that a tacit acceptance of the arbitration clause is sufficient, and that the signature on the clause or on the contract in which it is contained is not required, provided consent by both parties to submit the dispute to arbitration is evidenced by other circumstances. Nevertheless, the BAL does not specify whether the arbitration agreement must be signed by the parties to be effective. The BAL provides that the arbitration clause shall be in writing, contained in the contract or in a separate document referring thereto (Article 4, First Paragraph). 9.307/1996 – “BAL”) distinguishes between two different types of arbitration agreement depending on whether the dispute has already arisen or not: the submission agreement and the arbitration clause. The Brazilian Arbitration Law (Federal Law No. 1.1 What, if any, are the legal requirements of an arbitration agreement under the laws of your jurisdiction?