International background on IP arbitration The past decade has witnessed a substantial growth in the use of arbitration to solve Intellectual Property (“IP”) disputes. To the day, the WIPO Arbitration and Mediation Center (“WIPO Center”) has administered over 650 arbitration, mediation and expert determination cases, a number which grows faster every year, as portrayed by…

“I prefer to hope that this shift in perspective will be a chance for people, organisations, businesses, politics, whatever, to put so many of their ongoing disputes and conflicts aside because with this new perspective comes the realisation that these are not worth fighting. It is time to cooperate. May we go through and come…

On 25 January 2020, India and Brazil signed an Investment Cooperation and Facilitation Treaty, in the presence of the Brazilian president Jair Messias Bolsonaro. Arguably the most prominent of the 3 BITs that India has signed since adopting the model BIT in December 2015. The new treaty articulates several provisions (briefly discussed below) in departure…

On September 10, 2019, in considering an interlocutory appeal to stay arbitration proceedings, the Espírito Santo Court of Appeals decided to grant an exception to the competence-competence principle on grounds that the arbitration agreement was prima facie “manifestly illegal”. (Interlocutory Appeal No. 0013950-80.2019.8.08.0012, injunctive relief issued on September 10, 2019).   Background In 2001, the…

2019 was a lively year for international arbitration in Latin America – especially in the international commercial arbitration arena, which is the focus of this post. Contributors to Kluwer Arbitration Blog reported mostly on favorable developments on arbitration-related legislation, case law and other initiatives. The year, however, ended with a regrettable situation in Peru, where…

One effective way to manage risk allocation and especially political risk in state contracts consists of delegating dispute resolution and contract interpretation to arbitrators. With the aim to entice more private investors to develop infrastructure, Brazil has taken one positive step to expressly allow arbitration in public contracts concluded in these sectors. On 20 September…

On August 26, 2019, Brazil’s President sanctioned Statute # 13.867/2019, which inserts provisions in the Brazilian expropriation for public utility statute (Federal Decree 3.365/41). One of the most innovative provision of Brazil’s new law is the possibility of submitting disputes related to expropriations to mediation and arbitration, according to Brazil’s mediation Statute and arbitration Statute….

The development of the Brazilian Arbitration Act concerning the Public Administration Under the original wording of article 1 of Law no. 9.307/96 (“Brazilian Arbitration Act”), any capable person was entitled to resort to arbitration to settle disputes relating to patrimonial and disposable rights. By referring to capable persons, article 1 of the Brazilian Arbitration Act…

In a landmark decision rendered on May 15, 2019, the Brazilian Superior Court of Justice rejected the argument that transmission of an arbitration agreement via subrogation violated public policy. The Court thus gave full effect in Brazil to a foreign arbitral award resulting from a transmitted arbitration agreement. The decision sets the “law of the…

Introduction Unlike other pillars of arbitration like recognition-enforcement of foreign awards and independence-impartiality of arbitrators, the Kompetenz-Kompetenz rule is far from a universal standard. Each jurisdiction has a particular rule, with clear distinctions between the approaches adopted, for example, by the US, the UK, France, Switzerland and China. The aim of this post is to…

Brumadinho Dam’s Rupture and the First Gulf War Writing about these events side by side might seem like a mistake at first as they hold no historical connection and emerged under completely distinct circumstances. However, amidst these personal tragedies, we cannot ignore this common denominator: the human and material losses suffered by the victims. In…

“Conversation – respectful, engaged, reciprocal, calling forth some of our greatest powers of empathy and understanding – is the moral form of a world governed by the dignity of difference.” Lord Rabbi Jonathan Sacks, The Dignity of Difference, quoted by Ian Macduff in “Signs of hope” Following on from yesterday’s post, this second post offers…

A long-term dispute between Libra Terminais S.A., Libra Terminais Santos S.A., two companies belonging to one of the major port operating groups in Brazil (“Libra”), and the Dock Companies for the State of São Paulo (“CODESP”) seems to have been concluded by a recent arbitral award. The dispute concerned a concession agreement of two terminals…

        [Source:Google] In this post the Kluwer Arbitration Blog’s Latin American editorial team (Associate Editor Gloria Alvarez and Assistant Editors Daniela Páez  and Enrique Jaramillo) joins us in an adventure to reflect on the Blog’s 2018 coverage of arbitration developments in the region. First, it is worth recapping the environment and circumstances…

Recently, the 2018 White & Case International Arbitration Survey confirmed London, Paris, Singapore, Hong Kong, Geneva, New York and Stockholm as the most in-demand places for arbitration in the world. Brazil is well represented by São Paulo – the economic hub of the country – which occupied eighth place in the overall ranking. This result…

I. Introduction Despite the fact that commercial arbitration has experienced a huge development in Brazil in the last years and a general favorable approach by Brazilian courts, there are fields in which arbitration is still incipient, with complex discussions about its enforceability and to what extent consumer, labor or adhesion contracts can be discussed via…

The debate around the ‘extension’ of arbitration agreements has, once again, been placed under the spotlight in Brazil. The Brazilian Superior Court of Justice (‘SCJ’) recently considered the issue in disputes involving groups of contracts between the same parties. The SCJ ruled in favour of the ‘extension’ of the arbitration agreement contained in the main…

Brazil has been notoriously reluctant to enter into treaties with other States that provide for the protection of investors and investments, viewing them as detrimental to the host State and its national investors. Brazil has no bilateral investment treaties in force, a limited number of its own treaties, named Cooperation and Facilitation Investment Agreements (CFIAs),…

Litigation finance continues expand rapidly on a global basis, including in Latin America. The region’s code-based civil systems generally permit litigation funding and the continued growth in arbitration make it an attractive market for funding. Brazil, as the region’s largest economy, and with a well-developed and sophisticated legal system, is leading the way.  Moreover, local practitioners…

Brazil has recently executed two new Cooperation and Facilitation Investment Agreements (“CFIAs”) with the Federal Democratic Republic of Ethiopia on April 11, 2018; and with the Republic of Suriname on May 2, 2018. These are, respectively, the 7th and the 8th CFIAs that Brazil has executed since 2015 (the former ones were executed with Chile,…

For the past few years, Brazil has gained recognition as an “arbitration-friendly” seat when it comes to the enforcement of foreign arbitral awards. However, last year, in a groundbreaking decision, the Brazilian Superior Court of Justice (in Portuguese, “Superior Tribunal de Justiça” or “STJ”) denied recognition of two US arbitral awards. Abengoa has appealed from…

This post summarises the key features of the Rio de Janeiro State Decree No. 46.245/2018, which regulates arbitrations between state-owned entities and private corporations and came into force on February 20, 2018. As a brief introduction, and to provide context of the enactment of the referred statute, it is relevant to set forth three pieces…

In the past decade, the legal landscape in Brazil has changed significantly to better accommodate alternative dispute resolution methods, including mediation, conciliation, and arbitration. Brazil recently revised its Civil Procedure Code (Law 13.105/2015) and its arbitration law (Law 13.129/2015). It also enacted a mediation law (Law No. 13.140/2015). These major pieces of legislation contain provisions…

This post covers the main topics broached in my lecture given in Oxford, in the Conference “II Oxford Symposium on Comparative International Commercial Arbitration”, which took place on November 20, 2017. The question is: are arbitrators bound by precedents or by a clear line of case law, when parties have decided, in the arbitration agreement, that…