Arbitration Law of Brazil: Practice and Procedure - Second Edition - Hardcover Edition
Arbitration Law of Brazil: Practice and Procedure - Second Edition - PDF eBook
CAM/CCBC – THE OUTSET OF BRAZILIAN
Carlos Suplicy de Figueiredo Forbes and
Lenora Hage Santos Bento de Faria
This chapter aims at presenting the Center for Arbitration and
Mediation of the Chamber of Commerce Brazil-Canada (“CAM/CCBC”
or the “Center”) by providing the reader with some insight into the
Center’s contributions to the development of arbitration in Brazil.
As a Brazilian pioneer and industry leader, CAM/CCBC has
contributed to society’s acceptance of arbitration on several accounts: (i)
the Center promotes knowledge in the field of Alternative Dispute
Resolution (“ADR”) by encouraging educational activities and entering
into cooperation agreements with several arbitral institutions around the
world; (ii) the CAM/CCBC Arbitration Rules evolved to reflect recent
international trends and the most established doctrine in arbitration;
(iii) various cases under the administration of the CAM/CCBC have
contributed to build a pro-arbitration body of case law in the Brazilian
judiciary; and (iv) as part of the Center’s commitment towards constant
improvement, the CAM/CCBC Secretariat applies a unique case
management formula able to provide administrative support with quality,
efficiency and neutrality.
CAM/CCBC’s trajectory demonstrates that the role of the arbitral
institution can exceed traditional case management, by promoting the use
of regional arbitration and the country itself as a viable option for
international arbitration proceedings.
1. HISTORICAL APPROACH: BRAZILIAN ARBITRATION
AND THE CAM/CCBC
As is widely known, for the entire 20th century, the use of arbitration
in Brazil was insipient to say the least. For the longest time, the country
was not a viable forum for arbitration due to some legal impediments and
peculiarities of the region.
While arbitration was provided in the Brazilian legal system, it did
not have a specific statute until 1996.
In fact, before the Brazilian Arbitration Act (“BAA”)2 came into
force, arbitration clauses were governed by the Code of Civil Procedure
of 1973, which did not even view them as binding agreement but rather
as simple promises to enter into arbitration.
For this reason, arbitration clauses contained in contracts, by
themselves, were not sufficient to bring a dispute to arbitration: after a
dispute had arisen, the parties had to execute a second, separate,
arbitration agreement, the so-called compromisso. This was known as the
“double requirement”, which implied that, to be enforceable, arbitration
clauses had to rely on a post-dispute submission.
Moreover, judicial courts intervened to a considerable degree in
arbitration since the arbitral award had to be submitted to a judicial
exequatur procedure to be effective. The arbitral award was not set on
equal footing with a ruling rendered by the judiciary3.
The BAA did away with the barriers to the use of arbitration in
Brazil. Inspired by the UNCITRAL Model Law on International
Commercial Arbitration, the Act introduced among other corollaries, the
positive and negative effects of an arbitration agreement.4
However, soon after the BAA was enacted, its constitutionality was
challenged through an extended litigation before the Brazilian Supreme
JOAQUIM T. DE PAIVA MUNIZ is a principal of Trench, Rossi & Watanabe Advogados firm associated with Baker & McKenzie International, a Swiss verein. Admitted to practice in Brazil and in the State of New York, he has a LL.M. from the University of Chicago Law School. He is the coordinator of the post-graduation course on arbitration at ESA/OAB-RJ (Superior School of Law of the Brazilian Bar Association -- Rio de Janeiro Chapter), Chairman of the Arbitration Commission of the Brazilian Bar, Rio de Janeiro Chapter (OAB/RJ), and Director of the Brazilian Arbitration and Mediation Chamber (CBMA). He is also the author of several books and articles on international arbitration and Brazilian corporate law.
ANA TEREZA PALHARES BASÍLIO is a principal of Basílio Advogados in Rio de Janeiro. She is admitted to practice in Brazil, a professor of Arbitration in the graduate courses of Fundação Getúlio Vargas (FGV), former president of the Arbitration Commission of the Brazilian Bar, Rio de Janeiro Chapter (OAB/RJ), Vice-President of the Brazilian Arbitration and Mediation Chamber (CBMA), and former judge of the Brazilian election tribunal in Rio de Janeiro (TRE-RJ). She is also the author of several articles on international arbitration and Brazilian civil law.