Free Trade Area of the Americas - FTAA

español português

Trade Negotiations

Home Countries Sitemap A-Z list Governmental Contact Points






1. International agreements

a. Is the jurisdiction a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958 (New York Convention). If so, are there any reservations? Name the domestic law that implements these commitments.

 With the enactment of Decree No. 4311, of 23 July 2002, Brazil became a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), of 1958.

b. Is the jurisdiction a party to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, done at Washington on 18 March 1965 (ICSID Convention)? Is there a domestic implementing law? Is the jurisdiction a party to any bilateral investment treaties providing for settlement of investment disputes between a state and a national of another state?

Brazil is not a Party to the Convention on the Settlement of Investment Disputes between States and Nationals of other States (Washington Convention) of 1965. Several bilateral investment agreements have been signed but have not yet been approved by the National Congress.

c. Is the jurisdiction a party to the Inter-American Convention on International Commercial Arbitration, signed in Panama on January 30, 1975, (Panama Convention)? Is there a domestic implementing law?

Brazil is a Party to the Inter-American Convention on International Commercial Arbitration, (Panama Convention) of 1975. The Convention became part of the national legal system by a Presidential Decree published in 1996.

d. Is the jurisdiction a party to any other international agreement related to international commercial arbitration?

A list of agreements related to arbitration, conciliation and dispute settlement is attached with their current status in relation to Brazil.

2. Arbitration

a. What is the source of law for international commercial arbitration within your jurisdiction? Please cite.

The principal source of law for international commercial arbitration is Law nº 9307 of 1996. The international agreements ratified by the government that are currently in force are, of course, another source of law.

b. Does the law contain different rules for domestic and international arbitration?

There are no distinctions between domestic and international arbitration, except in relation to the need for recognition of the foreign award by the Federal Supreme Court.

c. Are there limitations on the types of disputes that may be arbitrated?

Recourse to arbitration is available only for litigation regarding rights that, under the national legal system, are economic in nature, may be disposed of by private persons, do not affect public order and can be subject to settlement.

d. Does the law specify rules for arbitration or do the parties have autonomy to set their rules?

The parties have autonomy to agree on substantive as well as procedural rules that they wish to adopt.

e. What is the role of the courts during arbitration? May courts intervene prior to or during the arbitration process?

Arbitral tribunals do not have absolute autonomy of action and are dependent for certain acts on the protection of the judicial courts, whose role is summarized as follows:

1 - Oblige a reluctant party to sign the agreement to submit to arbitration, when there is an arbitration clause in the contract;
2 - Fix the fees of the arbitrator or arbitrators, when not specified in the arbitration agreement;
3 - Appoint the third arbitrator when the parties have named two of them and are unable to reach agreement on the third, and appoint a substitute arbitrator in case of death;
4 - Judge the dispute when there is a motion to dismiss for lack of jurisdiction of the arbitrator or nullity, invalidity or inefficacy of the arbitration agreement;
5 - Subpoena witnesses called to testify and who decline to appear at the hearing;
6 - Impose coercive measures or interim relief;
7 - Judge matters incidental to the arbitral proceedings on unavailable rights on which the issue of the award depends;
8 - Decree, on petition of the parties, the nullity of the decision, in cases established in the law;
9 - Enforce the awards;
10 - Recognize the international arbitral awards (by the Federal Supreme Court).

f. Can the courts grant interim relief pending the outcome of an arbitration?

The courts have exclusive jurisdiction to grant interim relief.

g. Does the law require citizenship or a particular bar membership for participation in an arbitral proceeding, as arbiter or representative of a party?

Any person 21 years of age or older who has the confidence of the parties, may be an arbitrator. However, persons who, under civil procedural law, have impediments such as those that a judge might have in relation to the parties or the dispute, may not act as arbitrators. The parties are not obliged to be represented by lawyers. They may freely appoint their lawyers and/or representatives.

h. Does the law require that the proceedings be conducted in a particular language?

The law makes no reference to the language in which an arbitration proceeding must be conducted.

i. Does the law have mandatory choice of law provisions?

In accordance with Article 2 of Law 9307, the parties to the dispute may freely elect the regulations that will apply in the arbitration, which may be also based on law or equity, if agreed by the parties. Said Article 2 also allows for the parties to agree on arbitration based on general principles of law, use and customs, and international commercial rules. The limits on choice of applicable law are public order and good customs.

j. Does the arbitration law prescribe rules for decision making by the arbiters and the form of an award?

The legislation does not establish substantive rules to resolve the substance of the dispute. The parties are free to adopt rules of law, equity, general principles of law, custom and usage or international commercial rules, provided they do not violate public order. The award must contain:

1 - The record of the case, with the names of the parties and a summary of the dispute;
2 - The grounds of the decision, with an analysis of the matters of fact and law, with compulsory mention of the use of equity, if applicable;
3 - The dispositive part, with the decision on the dispute presented and the period for compliance;
4 - The date and place of issue.

k. Is the confidentiality of arbitral proceedings and awards protected by law?

The law does not provide for the confidentiality of the proceeding or arbitral award. However, since the parties can decide on the rules of procedure, the process normally takes place behind closed doors and awards are not published. The tendency in some cases is to publish the awards, particularly those rendered by institutional arbitral tribunals.

l. On what grounds will the courts set aside or decline to enforce an award?

Local courts may decline to recognize and enforce the arbitral award when:
1 - The agreement to submit to arbitration is null and void;
2 - The award was made by a person who could not be an arbitrator;
3 - The award does not contain the essential requirements (see "j" above);
4 - The award is not issued within the limits of the arbitration agreement;
5 - The arbitrators did not decide the entire dispute;
6 - Corruption or related crimes are proven;
7 - The award was not rendered before the deadline;
8 - The rules agreed by the parties were not respected.

In addition, the Federal Supreme Court will not recognize foreign awards for domestic enforcement when:

I - the party against which the award is invoked demonstrates that:

1 - the other party is subject to some incapacity;

2 - the arbitration agreement is not valid under the law to which the parties submitted or, if nothing is stated in this respect, under the law of the country in which the award was rendered;

3 -it has not been duly notified of the appointment of the arbitrator or the setting up of the arbitration proceedings, or the rule that both parties to the action be present has been violated, making a full defense impossible;

4 - the award relates to a dispute not covered by the agreement to submit to arbitration or contains decisions that exceed the terms of the arbitration agreement or clause, if it is not possible to separate the part that exceeds from the part that has been submitted to arbitration;

5 - the setting up of the tribunal does not conform to the arbitration agreement or clause;

6 - the award is not yet binding or has been set aside or suspended by the judicial authority of the country in which it was rendered.

II - it is proven that:

1 - under domestic law, the subject of the dispute is not susceptible to settlement by arbitration;

2 - the decision goes against public order.

m. What is the procedure for enforcement of an award?

The law does not establish a mechanism for enforcement of an arbitral award. If a party does not wish to submit to the award, which is enforceable, the other party may seek its judicial enforcement, according to the procedural rules in force.

n. Please list any institutions available within your jurisdiction that provide international commercial arbitration services. Provide internet address where available.

See point 4 below.

3. Alternative forms of Dispute Resolution (ADR)

a. Are other forms of alternative dispute resolution (mediation, conciliation) available for the resolution of commercial disputes within your jurisdiction?

Mediation and conciliation are being used more frequently. Some confusion persists about the use of the terms: mediation and conciliation are applied more often to informal proceedings in which a facilitator acts; arbitration refers to formal proceedings in which a judge conclusively decides the case. The judicial authorities are publicizing ADR (alternative forms of dispute resolution) in the country.

b. Does the law or do the courts mandate or encourage the use of ADR in commercial disputes? Are there any legal impediments to using ADR for the resolution of commercial disputes?

Recourse to ADR is not compulsory for settlement of commercial disputes. The use of ADR is limited to rights to disposable assets.

c. Can courts enforce agreements to mediate or use other forms of non-binding dispute resolution in commercial disputes?

Local courts can enforce agreements to submit to arbitration when the parties have included an arbitration clause in the contract. In principle, this does not apply to ADR, which are informal proceedings.

d. Are there any organizations that specialize in ADR for commercial disputes not already mentioned?

Several institutions specialize in ADR. For information, refer to * * *:

1- Conselho Nacional das Instituições de Conciliação e Arbitragem (;
2- Associação Brasileira de Mediadores (;
3- Instituto de Mediação e Arbitragem do Brasil ( );
4- Sociedade Internacional de Mediação e Arbitragem ( );
5-Centro Latino-Americano de Mediação e Arbitragem ( );
6- Corte Brasileira de Arbitragem Comercial ( )

* * * This list is not exhaustive.

e. What rules govern confidentiality and admissibility of evidence in other proceedings?

In arbitration proceedings, confidentiality depends on the will of the parties. The arbitrator can order expert reports and request evidence as considered necessary. There are no legal provisions for other ADR. The provisions of the arbitration law are applied as necessary.

4. Legal sources and references

In addition to the references above is there an authoritative Internet site containing up-to-date information on dispute resolution facilities available in this jurisdiction?

There is no official page authorized by the government on settlement of international commercial disputes. However, the following addresses of institutions * * * can be mentioned:

1- Tribunal Arbitral de São Paulo (;
2- Câmara Arbitral de São Paulo (;
3- Tribunal Arbitral do Rio de Janeiro (;
4- Tribunal de Arbitragem de Rondônia (;
5- Corte Brasileira de Arbitragem Comercial ( ).
*** This list is not exhaustive

5. Bibliography

Please list respected reference works relating to arbitration and ADR in your jurisdiction.

1- BAPTISTA, Luiz Olavo. Dos contratos internacionais. São Paulo: Saraiva, 1994;
2- BATISTA MARTINS, Pedro. Aspectos jurídicos da arbitragem comercial no Brasil. Rio de Janeiro: Lumen Juris, 1990;
3- CARMONA, Carlos Alberto. A arbitragem no processo civil brasileiro. São Paulo: Malheiros, 1993;
4- CORRÊA, Antonio. Arbitragem no direito brasileiro. Rio de Janeiro: Forense, 1998;
5- GUERREIRO, J. A. Tavares. Fundamentos da arbitragem do comércio internacional. São Paulo: Saraiva, 1993;
6- PUCCI, Adriana Noemi. Arbitragem comercial nos países do MERCOSUL. São Paulo: LTr, 1997;
7- RECHTSTEINER, Beat Walter. Arbitragem privada internacional no Brasil. São Paulo: Revista dos Tribunais, 1997.

NB: This is not an exhaustive list.


countries sitemap a-z list governmental contact points