THE AUTHORS:
Sofia Monteiro Signorelli, Partner at Buzzi Signorelli Advocacia
Gustavo Dallazem Dalbosco, LL.M. Candidate at Georgetown Law
Maria Eduarda Caramez Vieira, LL.M. Candidate at Georgetown Law
The Doing Business in Brazil Legal Symposium concluded its first day with the panel “Arbitration in Brazil”. The panel, moderated by Gustavo Dallazem Dalbosco, was composed of four prestigious speakers, including Honorable Justice Ricardo Villas Bôas Cueva, a member of the Brazilian Superior Court of Justice; Professor Anne Marie Whitesell, a prominent academic from Georgetown Law; Steptoe’s counsel Lucinda Low, an experienced United States attorney; and Leonardo de Campos Melo, a distinguished Brazilian arbitrator and counsel.
The panel explored the interactions between arbitration and state courts before, after, and during the arbitration proceedings, including the key dynamics, challenges, and opportunities of arbitration considering the framework of Brazilian Law. One of the highlights of the discussion was the well-established cooperation between arbitration and state courts in Brazil, leaving the audience with a live testimony that Brazil is a decidedly “pro-arbitration” jurisdiction.
Honorable Justice Ricardo Villas Bôas Cueva began by discussing the development of arbitration in Brazil over the years. According to Cueva, between the years of 1996 and 2001, Brazil found itself in a unique legal midpoint regarding arbitration, with the enactment of the Brazilian Arbitration Act and Brazil’s ratification of the New York Convention.
Over the years, Justice Cueva also highlighted the role played by the Brazilian Superior Court of Justice in reinforcing the country’s reputation as an arbitration-friendly jurisdiction. Through consistent rulings, the court has reaffirmed the effectiveness and enforceability of arbitration agreements and awards, contributing to a favorable environment for dispute resolution through arbitration.
For Justice Cueva, one of the emerging issues in the Brazilian arbitration agenda is the arbitrator’s duty to disclose relevant information. This topic has gained prominence as stakeholders seek transparency and fairness in arbitration proceedings. In this regard, for Justice Cueva clear guidelines and standards regarding arbitrators’ disclosure obligations are crucial for maintaining trust and integrity in arbitration proceedings.
Leonardo de Campos Melo expanded on the issue of the duty of arbitrators to disclose relevant information to the parties before and after their appointment. This duty, essential for transparency and fairness in arbitration proceedings, has garnered significant attention within the legal community since it has become an argument for parties seeking the annulment of arbitral awards.
Campos Melo also noted that the Brazilian Superior Court of Justice has played a notably “pro-arbitration” role in recognizing and enforcing foreign arbitral awards. These efforts have been crucial in the promotion of arbitration in Brazil and in fostering confidence in the global business community. These results are discussed in Campos Melo’s book “Recognition and Enforcement of Foreign Arbitral Awards in Brazil: A Practitioner’s Guide”, which was reviewed by Professor Anne Marie Whitesell. Through adherence to international conventions and domestic legislation, Brazil has demonstrated a commitment to honoring arbitral awards rendered in other jurisdictions, contributing to a more harmonized and effective international arbitration framework.
For Professor Anne Marie Whitesell, one of the most notable points regarding the development of the Brazilian arbitration landscape was the streamlined process for enforcing domestic awards, which can be directly enforced without the need for extensive preliminary procedures. This efficient enforcement mechanism contributes to a more favorable environment for arbitration within the country.
In addition, Professor Whitesell noted that Brazil has a different perspective on what international arbitration means. She highlighted that the Brazilian Arbitration Act does not provide for a distinction between international arbitration and domestic arbitration even if foreign parties are involved or if foreign law governs the proceedings or the merits of the arbitration. Moreover, Brazil adopts a geographic criterion to distinguish domestic and foreign awards. Therefore, arbitration proceedings having their seat in Brazil are considered domestic and are governed by the Brazilian Arbitration Act, while foreign arbitral awards are subject to recognition under the New York Convention to become enforceable in Brazil. Finally, even though international and domestic arbitrations are treated equally by legislation, this has not prevented arbitral tribunals from adopting different practices – aligned with the international experience – when dealing with international arbitrations.
Following that discussion, Professor Whitesell shared her experience serving as Secretary General to the International Court of Arbitration of the International Chamber of Commerce (ICC) from 2001 to 2007 and highlighted the vibrant engagement of Brazil’s legal community in arbitration at that time. She noted a dynamic cross-generational effort, attributing it to the transfer of knowledge from older lawyers, many of whom had international education backgrounds. This transfer of expertise underscores the importance of local acceptance and involvement in sustaining arbitration’s prominence. The level of deference shown to arbitration in Brazil, as observed by European counterparts, has also been a source of surprise. This deference reflects a broader trend of acceptance and support for arbitration within the Brazilian legal framework, contributing to its credibility and effectiveness as a dispute resolution mechanism.
Lucinda Low further elaborated on ongoing trends in arbitration in Brazil from her perspective as counsel in the United States, shedding light on the challenges and opportunities associated with choosing Brazil as a seat of arbitration. According to her, various factors influence the parties’ decision to choose Brazil as a reliable seat of arbitration, including the legal framework, judicial support for arbitration, and the enforceability of arbitral awards. While Brazil has made significant progress in promoting arbitration and aligning its laws with international standards, concerns remain regarding procedural efficiency and consistency in judicial decisions, especially regarding the arbitrator’s duty to disclose information.
Ms. Low also highlighted the growing sophistication of recent challenges related to arbitrators’ independence and impartiality in Brazil. These cases underscored the importance of robust ethical standards and clear guidelines for arbitrators, as well as mechanisms for addressing conflicts of interest and ensuring fair and unbiased proceedings.
For her, the current debate is also centered on the extent of the duty to disclose in Brazilian arbitration. Questions regarding the scope of information that arbitrators are obligated to disclose to parties, particularly concerning potential conflicts of interest or relevant background information, have become especially relevant.
Conclusion
Looking ahead, panelists expressed optimism about the future of arbitration in Brazil. They noted a growing trend towards contractual arrangements and collaboration between private parties and state courts, signaling opportunities for arbitration to play a vital role in resolving disputes in this context. However, they also emphasized the importance of clear contractual frameworks and adherence to best international practices to ensure the efficacy and fairness of such arrangements.
Overall, the panel discussion highlighted both the progress and the ongoing challenges within Brazil’s arbitration landscape. While the optimism is clear about arbitration as a reliable dispute resolution method, addressing issues such as arbitrator independence, disclosure obligations, and contractual frameworks will strengthen Brazil’s already established reputation as a reliable and effective arbitration-friendly country.
ABOUT THE AUTHORS:
Sofia Monteiro Signorelli, partner at Buzzi Signorelli Advocacia. Sofia graduated cum laude in International Relations and Economics at IBMEC/RJ and in Law at the Federal University of Rio de Janeiro. She holds an MSc degree in Finance from COPPED/UFRJ, as well as a postgraduate specialization in Competition and Economic Law from FGV. After spending Three years at the Brazilian Competition Authority (CADE), where she served as a General-Coordinator, Sofia clerked at the Brazilian Supreme Court, focusing on the Economic Analysis of Law and the so-called “concentrated” constitutional remedies in Brazil. Currently, Sofia is completing her Ph.D. studies in Commercial Law at the University of São Paulo to serve as a Visiting Scholar at George Washington University. She’s also a candidate at Georgetown University for the LLM in International Business and Economic Law.
Gustavo Dallazem Dalbosco is an LL.M. candidate and merit scholar at Georgetown Law, where he is also pursuing a Certificate in International Arbitration and Dispute Resolution. Gustavo has years of experience representing parties in disputes and corporate matters in Brazil. He holds a master’s degree in Civil Law with a research thesis in arbitration from the Pontifical Catholic University of São Paulo. He currently acts as Communications Coordinator at the Georgetown International Arbitration Society (GIAS). Gustavo is also an LL.M. advisor at Georgetown`s Journal of International Law (GJIL), reviewing traditional journal articles for publication.
Maria Eduarda Caramez Vieira is an LLM. candidate and an International Arbitration Scholar at Georgetown University Law Center, where she is also pursuing a Certificate in International Arbitration and Dispute Resolution and acts as a Secretary to the Georgetown International Arbitration Society (GIAS). She was an associate at the litigation and arbitration practice of leading Brazilian law firm Mattos Filho. She graduated from the Pontifical Catholic University of Rio de Janeiro with a full scholarship in 2020 and participated in the Willem C. Vis International Commercial Arbitration Moot as an assistant coach and as a student, when she received honorable mentions to the Martin Domke, Eric E. Bergsten, and Pieter Sanders Awards.
