L’exécution des mesures à titre provisoire rendues par un tribunal arbitral situé à l’étranger

Book Launch Event

---

THE AUTHOR:
Aécio Filipe, Associate with the Litigation, Arbitration and French Desk group at BMA Advogados

---

In recent years, one can observe a progressive evolution of the autonomy of arbitration vis-à-vis State courts, which reduced the necessity of court intervention to ensure the effectiveness of arbitral proceedings. However, there are still some areas where cooperation between these two jurisdictions is necessary. Particularly, in case of enforcement of interim reliefs outside the seat of arbitration.

When one considers the fact that the parties have constantly been moving their goods around the globe, one can realize how international arbitration proceedings often take place in countries where the parties have neither assets nor commercial operations. Accordingly, parties may seek to enforce foreign interim reliefs in countries other than the one where lies the seat of the arbitration, facing however different challenges to enforce such a measure.

Advancing the dialogues that will take place on 16 August, Jus Mundi was pleased to interview Mr. Oliveira to find out more about the issues he analyzes in his book. 

Can you explain our readers why the enforcement of “foreign” interim reliefs issued by arbitral tribunals is an important topic?  

Thank you very much Jus Mundi and Jus Connect for this opportunity. It is a great pleasure for me to discuss hot topics related to the enforcement of “foreign” interim reliefs.

First off, it is important to clarify that I refer to “foreign” interim reliefs as interim reliefs enforced in jurisdiction others than the one where the seat of arbitration is located.

As to the importance of this subject, in a globalized world where arbitration is the preferred method of dispute resolution, it is essential for the parties to enforce interim reliefs in countries other than the one where the arbitration is seated. While it is true that, in most cases, these measures are voluntarily complied by the parties, there are situations where they need to be enforced.

My book reveals, however, that there are real barriers to enforcing such a decision. These challenges commonly revolve around three key issues:

1. the absence of standardized mechanisms to guarantee the effective enforcement of “foreign” interim reliefs;
2. the lack of legal provisions regulating such enforcement; or
3. the restrictions imposed by national law that confine this type of assistance solely to arbitrations conducted within their jurisdiction.

It became then paramount to bolster research efforts on how to secure the enforcement of such a measure, guaranteeing that arbitration remains the preferred and most reliable avenue for resolving transnational disputes. Indeed, all advantages of arbitration may be called into question if the parties cannot have their rights preserved on a provisional basis or their evidence produced in an urgent situation.

You mentioned that there is a lack of legal provisions on the enforcement of “foreign” interim reliefs issued by arbitral tribunals. Could you explain why?

The lack of legal provisions on the enforcement of “foreign” interim reliefs seems to result from the fact that this subject has only come to prominence in recent times. Not long ago, we were still discussing whether arbitrators had the power to grant interim reliefs.

Although case law and scholars had already recognized such a possibility, in the twentieth century, most national laws and arbitration rules were still silent on this matter. For instance, the Brazilian Arbitration Act (“BAA” – Law No. 9307 of 1996) was modified eight years ago to explicitly address this matter (See BAA, article 22-B).

In parallel to these changes, delocalized arbitrations have become more and more frequent with globalization, which set the perfect stage for parties to seek enforcement of interim reliefs outside the seat of the arbitration.

As this transformative shift has taken place only recently, adequate time has not yet elapsed for the essential adjustments to be made in national laws, arbitration rules, and international conventions.

In this context, could you summarize what is the current Brazilian legal landscape on the enforcement of “foreign” interim reliefs?

Considering the absence of explicit provisions in the BAA, both recent legal judgments and scholarly works have presented a diverse range of mechanisms that could be implemented in Brazil to effectively enforce “foreign” interim reliefs: 

1. the use of letters rogatory; 
2. the enforcement of interim measures through the recognition and enforcement of foreign arbitral awards (“assimilation system”); or
3. the application of arbitral letter.

Could you briefly describe these mechanisms?

• The assimilation system relies on the enforceability of a foreign arbitral award to make such measures effective abroad. However, interim relief seems incompatible with:

1. the inherent characteristics of a final arbitral award,
2. the grounds for non-recognition that could be raised in an exequatur procedure, and
3. the award’s formal requirements.

Although a recent decision issued by the Brazilian Superior Court of Justice (“BSCJ”) may have created room for its use in Brazil, it also showed that this system does not ensure a flexible and speedy enforcement of interim reliefs, as it may take months or years to enforce this type of decision in Brazil.

• A letter rogatory is a formal request from a State court to another for international cooperation, including for enforcement of interim reliefs.

Letter rogatory is mostly used in favor of interim reliefs issued by foreign State courts, but there are cases prior to the amendment of the BAA and the Brazilian Code of Civil Procedure (“BCCP”) in 2015 where this mechanism has been employed to enforce interim reliefs issued in arbitral proceedings. However, recent case law shows that arbitral tribunals cannot directly transmit interim relief orders to Brazil via letters rogatory. Rather, State courts of the arbitration’s seat are the competent court to transmit such a request. Accordingly, the time required for the enforcement of a foreign interim relief is the strongest argument against the compatibility of letters rogatory with the parties’ needs. In the absence of international conventions, the letter rogatory is transmitted through diplomatic channels and is subject to exequatur procedure before the BSCJ, which may take months or years to be enforced.

• Arbitral letters are, by nature, a mechanism to request judicial assistance in aid of arbitral proceedings. Since 2015, the BAA and the BCCP provided the parties with this sui generis enforcement system of arbitral tribunals’ interim reliefs.

Unlike letters rogatory, arbitral tribunals can transmit arbitral letters directly to Brazilian local courts where the interim relief must be carried out (instead of submitting them to an exequatur procedure before the BSCJ). However, while there is no doubt about the applicability of arbitral letters to arbitrations seated in Brazil, it is still not clear whether this mechanism would be available to arbitration proceedings seated internationally.

In your opinion, what is the most adequate measure to ensure the effectiveness of arbitral tribunal’s interim reliefs in Brazil?

In my opinion, arbitral letters are the only tool able to ensure the effectiveness of “foreign” interim reliefs. By considering interim reliefs as an order, this mechanism avoids many uncertainties related to the compatibility of this measure with the concept of an award, while it provides a procedure tailored to the parties’ needs.

Arbitral letters should be adopted ex vi legis not only in Brazil but worldwide. For instance, Switzerland and Hong Kong have already done. Germany is currently discussing the revision of its arbitration act to address this issue.

If you would like to better understand my position and all the controversies related to this matter, I invite you all to come to my book launch, read my book and share your feedback!

---

Aécio Filipe is an Associate with the Litigation, Arbitration and French Desk group of BMA Advogados. Aécio worked in London and in Paris as a Foreign Lawyer with the international arbitration group of Wilmer Cutler Pickering Hale and Dorr LLP and Herbert Smith Freehills. He is trained in French and Brazilian law and graduated from the University of Paris I: Panthéon – Sorbonne with honours (Master’s degree in International Private Law and International Commerce, cum laude). Aécio obtained equivalence of his master’s degree held at the Université de Paris I: Panthéon-Sorbonne before the Federal University of Minas Gerais (UFMG). He took part of his thesis’ research at Universität Hamburg, Germany, as a visiting researcher. He holds a bachelor’s degree in Brazilian Law from UFMG (LL.B.).

---