The Center for Studies and Research in Arbitration from the University of São Paulo (“CEPArb-USP”) has recently made public the findings of its pioneer empirical research on challenges of arbitrators in domestic proceedings in Brazil. The initiative analyzed data from challenges in proceedings administered by the Câmara de Mediação e Arbitragem Empresarial – Brasil (CAMARB)….
Brazil is an interesting actor in the field of investment-related treaties. For example, Brazil has been a major player when it comes to foreign direct investment (“FDI”) outflows. This was not always the case. Brazilian outward foreign direct investment (“OFDI”) was minor throughout the 1990s. However, after economic and institutional reforms, Brazilian companies became increasingly internationalized,…
In 2021, we witnessed a number of interesting developments in the field of investment arbitration in Latin America. From Mexico’s actions potentially triggering numerous treaty claims, to Colombia’s four consecutive victories, to Ecuador’s return to the International Centre for Settlement of Investment Disputes (ICSID) Convention. Our authors did a tremendous job covering and sharing their…
Welcome to the Kluwer Arbitration Blog, Ms. Coelho! We are grateful for this opportunity to learn more about the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (CAM-CCBC), and its administration of complex disputes, as well as about the attractiveness of São Paulo and Rio de Janeiro as seats for international arbitration. …
It is well-known that confidentiality is a particularly important mechanism for protecting the information and data contained in a process in which disclosure could cause prejudice to the parties. That is because the mere existence of a lawsuit may sometimes lead to considerable consequences for the parties, as it may affect the perception of third…
Introduction On April 1st, the new Government Procurement Act (“GPA”) came into force (Law n. 14,133/2021). The new Act brings many positive changes to the processes of tendering and bidding conducted by state entities. Its legal provisions intend to bring greater legal certainty for those who want to invest in large projects in Brazil led…
The recent crisis between the Brazilian president Jair Messias Bolsonaro and the Brazilian national oil company Petrobras may result in a wave of investors’ claims submitted to arbitration against the Brazilian Federal Government for abuse of controlling power and breach of fiduciary duties under the Brazilian Companies Act 1976. During a live broadcast on February…
Five years ago, the Brazilian Arbitration Act (Law No. 9,307/96 or BAA) was amended by the Law No. 13,129/2015. Law No. 13,129/2015 repealed the item V of Article 32 of the BAA which provided for the annulment of an arbitral award when it does not address the entire dispute submitted to arbitration (infra petita award)….
On 24 December 2020, the New Brazilian Insolvency Act (“NBIA” – a slight misnomer, as the Act is in fact an amendment to an existing statute) was published in the official Brazilian gazette. The act implements important modifications in the field, including a few related to arbitration, which came into force on 23 January 2021….
Corruption, annulment of arbitral awards and court intervention mark the main developments for 2020 in Latin America. Our contributors this year reported on the most important judicial decisions and legislative measures impacting the legal framework of various jurisdictions in the region. A new ‘hot topic’ arising from the COVID-19 pandemic is the interplay between arbitration…
Brazil’s new Franchising Law (Law No. 13.966/19) was published on December 27th, 2019 and became effective as of March 27th, 2020. One of the innovations (more of a confirmation) set forth by the new legislation is the provision contained in article 7, paragraph 1, which states that “the parties may resort to arbitration to resolve…
On August 11th, 2020, the Cayman Islands Court of Appeals overturned the decision that denied the enforcement of the arbitral award that ordered the MatlinPatterson Global Opportunities Partners private investment fund (“MP Funds”) to pay approximately USD 55 million to Gol Airlines. The amount refers to the purchase of the airline Varig by Gol. …
On 11 August 2020, the Court of Appeals of the state of São Paulo, Brazil, annulled an arbitral award1)1ª Câmara Reservada de Direito Empresarial do Tribunal de Justiça de São Paulo. Apelação Cível no. 1056400-47.2019.8.26.0100 [Appeal no. 1056400-47.2019.8.26.0100]. on the grounds that the chair of the arbitral tribunal had failed to timely disclose his appointment…
On 19 May 2020 the London Court of International Arbitration (hereinafter the LCIA or the Court) issued its annual casework report for 2019. This paper aims to present and analyse the numbers revealed in the report. The focus will be on the development of international arbitration in terms of market, diversity and inclusion, and applicable…
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.1)For a comprehensive comparison of these legal systems,…
