THE AUTHOR:
Renata Steiner, Independent Arbitrator, Legal Expert and Private Law Professor at Fundação Getúlio Vargas
In Sky Light v. Martins & Bueno, REsp No. 2.179.459/GO, ruled on April 22, 2025 by Brazil’s Superior Court of Justice (“STJ”), the discussion hinged on a single question: when does the clock start ticking for a party to challenge an arbitral award? The Court had to decide whether the time limit for setting aside an arbitral award would run from (a) the date of the award or (b) the date on which the parties were notified of the decision on a request for clarification.
The Brazilian Arbitration Act (Law 9,307/1996) provides that parties have a 90-day period to file a request to set aside an arbitral award before a State Court. The wording of Article 33, § 1 as amended by Law 13,129/2015 is quite straightforward: “§ 1 a claim to annul an arbitral award, whether partial or final, shall follow the rules of ordinary procedure set forth in Law No. 5,869 of January 11, 1973 (the Civil Procedure Code), and must be filed within 90 (ninety) days from receipt of notification of the respective award, whether partial or final, or of the decision on the request for clarification. (free translation).”
The answer provided by the STJ honors the literal wording of Article 33, §1: the clock starts ticking when the parties are notified of the award or, conversely, of the decision on a request for clarification, if any, even if such a request is denied. Since doubts regarding time limits set forth in arbitration are frequent, this decision is taken as the starting point to reflect on how Brazilian courts interprets time limits set forth in the Brazilian Arbitration Act.
When Does the Time Limit Start to Run?
In Sky Light v. Martins & Bueno, the STJ confirmed that the 90-day limitation period for filing a request to set aside an arbitral award runs from the parties’ notification of the decision on the request for clarification.
The parties had agreed that notifications would be made by the arbitral institution’s secretariat. The award was published on July 15, 2021, followed by a clarification request. The decision rejecting this request was published on August 12, 2021, and the annulment claim was filed on November 10, 2021. Initially, the claim was considered time-barred, but after a motion for clarification, it was deemed timely, as the period runs from the clarification decision. This was upheld on appeal.
In STJ, Justice Nancy Andrighi stated that filing a clarification request interrupts the 90-day period, which only starts upon notification of the decision, regardless of its outcome. Professor Gisela Sampaio offers a compelling critique for those familiar with Brazilian legal scholarship, arguing that this constitutes an actual case of interruption.
What About Partial Arbitral Awards?
The question of when the clock starts ticking to set partial awards aside was definitively solved by the Brazilian legislator in 2015, when the wording of Article 33, § 1 of the Brazilian Arbitration Act was amended to state that the period is counted from the notification to the party, both for partial and final awards.
The STJ had already ruled on the matter on at least two cases that were initiated before the amendment of the law. In the case of Termopernambuco v. Copergás, REsp No. 1.519.041/RJ, of 1 September 2015, the Court decided that “there is, in this respect, no valid argument to support the understanding that a challenge to the order of a partial arbitral award, through the appropriate action to set aside, could only be brought upon the issuance of the final arbitral award. (…).” In 2022 (H.P.E.I and others v. T do B.C.E.A.D.E.P.L, AgInt in AREsp No. 2.143.093/MT), the Court confirmed this conclusion by reference to the previous ruling. The Court’s position is endorsed by Brazilian legal scholars.
Is the 90-Day Time Limit Always Applicable?
Under Brazilian law, there are two ways to challenge an arbitral award: a request for annulment or a challenge to the enforcement of the arbitral award. In decisions rendered between 2021 and 2022, the STJ addressed the effect of the 90-day period from a different perspective: is it applicable only to the autonomous claim to set aside an arbitral award, or also to challenges during the enforcement of the arbitral award by the winning party?
In at least three cases (Rhaiane Nunes Cardoso, Viviano Quirino de Sousa v. Genesi de Jesus Melo, REsp No. 2.001.912/GO, judged on June 21, 2022; Barra Sol Shopping Centers vs. Gaudi Empreendimentos e Participações, REsp No. 1.900.136/SP, judged on April 5, 2021; and EMSA v. Aquamec Equipamentos and Haztec Tecnologia E Planejamento Ambiental, REsp No. 1.862.147/MG, 12 November 2021, reporting Justice Marco Aurélio Bellizze, Third Panel, judged on September 14, 2021) the STJ ruled that the 90-day period is peremptory (in Portuguese: prazo decadencial). In a recent text on this same topic, Professor Thiago Marinho Nunes has explained the legal nature of the deadline. It results from this qualification that “once the 90-day period for filing the action for annulment has expired, the party may not raise the grounds for annulment provided in Article 32 of the Arbitration Act by means of a challenge, as the formative power will have already been extinguished by the lapse of time.” (REsp No. 2.001.912/GO).
This means that even though it is possible to invoke one of the grounds for invalidity of the arbitral award provided in Article 32 of the Arbitration Act as a defense against the enforcement of the award, this must be done within the 90-day time limit.
However, there is an exception according to STJ. If the party did not properly receive notice of the arbitration, this defect is considered to affect the very existence of the award and is not subject to the 90-day limitation (REsp No. 2.001.912/GO). The conclusion may be debatable, but the exception serves as a warning as the clock may never start running.
If There is a Change in the Cause of Action, Quid Iuris?
An interesting discussion was held in the judgment of Civil Appeal 1097621-39.2021.8.26.010 by the São Paulo Court of Justice in Raphael Moreira and Brandão & Valga v. ESHO, which had already been highlighted on ITA Arbitration Report, Volume No. XXI, Issue No. 6 (June 2022) and whose merits regards the so-called “duty of curiosity”.
Claimants filed a request to set aside an arbitral award within the 90-day deadline but later submitted new grounds for annulment based on facts they claimed to have recently discovered, related to an alleged failure by one of the arbitrators to disclose relevant information. The decision held that the alleged facts were not new, but rather a new allegation of previously known facts that could have been easily verified even before the beginning of the arbitral proceedings. Under Brazilian procedural law, this is not permitted.
The Court rejected the change in action but emphasized that even if it was possible, the new claim should not be accepted, as the deadline for filing the set aside request had already elapsed. The arbitral award was rendered on April 8, 2021, the clarification decision on June 14, 2021, the annulment action was filed on September 10, 2021, and the petition with the new cause of action was filed only on October 20, 2021, exceeding the 90-days legal deadline.
Turning the Clock Backwards: What About the Time Limit to Render an Arbitral Award?
A distinct aspect regarding time limits concerns the deadline for rendering the arbitral award. According to Article 32, VII Brazilian Arbitration Act, rendering an award outside its time limit is one of the grounds for annulment: “Article 32. An arbitral award is null and void if: (…) Parte superior do formulário
VII – rendered outside the prescribed time limit, subject to the provisions of Article 12, item III, of this Law; (…)”.
Recently, CAM-CCBC has published a report of arbitral awards that have, for some other reasons, already been made public. In the second volume, dedicated to awards on corporate law matters it is noted that the award rendered in CAM-CCBC arbitration 60/2013 was challenged before Brazilian courts on the grounds that it had been rendered outside the prescribed time limit. The request to annul was denied by the São Paulo Court of Justice in Civil Appeal Nº 1114237-31.2017.8.26.0100.
The decision made a distinction between the rendering of the decision and its communication to the Parties. In the specific case, the Arbitral Tribunal had rendered the decision within the time limit stipulated in the Terms of Reference (on 3 August 2017), but its communication to the Parties only occurred later (on 10 August 2017). In the Court’s view it is sufficient that the award was rendered within the stipulated time limit.
A time gap between the rendering of the decision and its communication to the Parties may occur for various reasons, such as holidays or recesses of the arbitral institution responsible for communicating with the Parties or the non-payment in full of costs, which may prevent the communication of the decision. In the specific case, as can be inferred from the content of the annulment decision, the notification was sent by post and not electronically, which may also explain the discrepancy in dates.
The discussion returns our clock to the first decision analyzed in this text, as the time limit for filing for annulment only begins when the Parties are notified of the decision, whether it is the award itself or a decision on requests for clarification. For this purpose, the date on which the award has been rendered by the Arbitral Tribunal is not relevant.
ABOUT THE AUTHOR
Renata Steiner is a Brazilian Independent Arbitrator and Legal Expert. She is a Private Law Professor at Fundação Getúlio Vargas in São Paulo, as well as a board member of ARBITAC.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
