Overcoming the Challenges in Establishing Arbitration in Brazil: A Historical Perspective

in Journal of the History of International Law / Revue d'histoire du droit international
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This article provides a perspective on two barriers created in the Brazilian legal system that were crucial for the stagnation of arbitration in Brazil. The anti-arbitration measures adopted from 1867 until 1996 were detrimental to the acceptance of arbitration as a common method of solving disputes in Brazil. Although the practice of arbitration in Brazil began while it was still a Portuguese colony, two Decrees enacted in 1867 and 1878 provided a step back into the arbitration scenario. The first determined that the arbitration agreement was a promise to submit disputes to arbitration instead of a contract to have future disputes arbitrated. The second stated that an international arbitral award had to be recognised in the jurisdiction where it was issued before its submission for recognition and enforcement in Brazil. However, Brazil overcame these impediments which, at the end of the last century, were repealed.

Overcoming the Challenges in Establishing Arbitration in Brazil: A Historical Perspective

in Journal of the History of International Law / Revue d'histoire du droit international

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5

See Arnold Wald‘A evolução da arbitragem internacional no Brasil’Revista de Arbitragem e Mediação 6(23) (2009) 19–38 30 where the author demonstrated that in the icc rank of arbitrations involving Brazilian parties in 1994 Brazil ranked 26th and in 2008 it ranked 9th.

12

Ibid.30.

13

In 1580the Portuguese and the Spanish entered a 60-year union due to the absence of an heir to the Kingdom of Portugal. As a consequence Spain’s Philip ii became Philip i King of Portugal. The consequence for Brazil was that the union had as one of its main goals to regulate the administrative and judicial procedures in the colony which led to the creation of the Ordenações Filipinas. See Thomas E. Skidmore Brazil: Five Centuries of Change (Oxford: Oxford University Press 1999) 12.

28

Renato Horta Rezende‘A Necessidade da Harmonização e Cooperação das Justiças Estadual e Arbitral: Novos Tempos in Adriana Silva Maillart, Jamile Bergamaschine Mata Diz and Mauro José Gaglietti’XXIV Encontro Nacional do Conpedi – UFS Justiça Mediática e Preventiva (Florianópolis: conpedi/ufs 2015) 9–26 14.

31

Carlos Augusto Silveira Lobo‘A Pré-história da Arbitragem no Brasil’Revista de Direito Renovar 41 (2008) 47–6251.

33

Article 1048.

34

Article 1034.

35

Article 1035.

36

Article 1039.

56

Brazil Decree-Law 4657 of 4 September 1942.

77

From 1964 until 1985Brazil was under a military dictatorship. It started with a coup by Marshal Castelo Branco and it lasted until 1985 when President Tancredo Neves was elected by the Brazilian legislative. The first direct elections in Brazil after the military dictatorship took place in 1989 after the enactment of the 1988 Constitution. See Evaldo Vieira Ditadura Militar 1964–1985: Momentos da República Brasileira (São Paulo: Cortez 2014).

82

See Renata Brazil-David‘An Examination of the Law and Practice of International Commercial Arbitration in Brazil’Arbitration International 27(1) (2011) 57–74; Leonardo de Campos Melo ‘Recognition of Foreign Arbitral Awards in Brazil’ American Review of International Arbitration 24(1) (2013) 113–161; Leandro Tripodi ‘Provisional Measures Permanent Changes: The Arbitration-Friendliness of the Brazilian Superior Court of Justice’ Journal of International Arbitration 29(6) (2012) 643–649; and Leonardo V. P. de Oliveira/Isabel Miranda ‘International Public Policy and Recognition and Enforcement of Foreign Arbitral Awards in Brazil’ Journal of International Arbitration 30(1) (2013) 49–70.

83

Brazil Law no. 13129 of 26 May 2015.

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