Resumen de Highlight on Brazilian arbitration act
1. The article provides an overview of the arbitration in Brazil, recently revitalized with the enactment of the Arbitration Act (Law nº 9307) in 1996.
Contrary to common perception Brazil has a long-standing tradition in the use of arbitration. Over decades Brazilian sovereign state has applied arbitration to resolve border disputes and indemnification claims with a variety of countries. At the end of XIX century and at the beginning of XX¿s Brazil also signed several multilateral and bilateral treaties which included arbitration as a means to solve related disputes.
2. The article begins with a concise history of the arbitration in Brazil and touches the two main obstacles that impaired the development of the arbitration in the country, that is, the ineffectiveness of the arbitration agreement and the compulsory homologation of the arbitral award by judicial court (request for approval).
3. The author registers the challenge of unconstitutionality of the Arbitration Act, already dismissed by majority of Supreme Court justices and also comments the jurisdictional nature of the arbitrators activity.
As well he stresses the principles of autonomy of the arbitration clause and the Kompetenz-Kompetenz embraced by Brazilian legislation.
The author also takes the opportunity to raise current concern among scholars regarding the arbitrability of issues arising out of administrative contracts (public law) and consumer agreements.
4. On the other hand the article clarifies the new legal structure that seeks appropriate protection toward the effectiveness of the arbitration agreement and that finally puts an end to the unnecessary request for approval.
5. The recent incorporation of the New York Convention by Brazil is subject of author¿s comment on item 9 of the article. As a consequence of New York Convention¿s ratification a new issue was raised and is currently under strong debate, that is, the real need of Supreme Court¿s exequatur to grant validity to foreign arbitral award in Brazilian jurisdiction.
At the end of the article the author sums up recent developments of arbitration in Brazil.
