Brazil: Amendments To The Brazilian Arbitration Law

Last Updated: 1 June 2015
Article by Gustavo Fernandes de Andrade and Roberto Figueiredo

Keywords: Brazil, arbitration,

The Brazilian Vice-President signed on 26 May 2014 the law amending the 1996 Brazilian Arbitration Law (Law No. 9.307/96). The amendments will enter into force 60 days after publication in the official gazette, occurred on 27 May 2015.

The 1996 Arbitration Law, resolutely progressive and arbitration friendly, was a crucial step for Brazil, placing it among the biggest arbitration players worldwide.

Rather than a wholesale change, the amendments allow some long standing practices to be consolidated. Formal changes were made merely to align the 1996 Arbitration Law with legislative changes occurred after 1996, such as the enforcement procedure of court decisions, also applicable to arbitral awards, which was modified in 2005; and the authority of the Superior Court of Justice to rule on the recognition of foreign arbitral awards, which belonged to the Federal Supreme Court before constitutional amendments of 2004. A number of changes were also made to correct inaccuracies contained in the original wording of the 1996 Arbitration Law, such as replacing "compromisso" with "convenção de arbitragem" in Article 32, and "decretação" with "declaração" in Article 33.

The amendments also attempt to settle controversial issues, such as the possibility to include arbitration clauses in by-laws of companies and to make the arbitration clause binding upon all shareholders. However, the amendments to the 1996 Brazilian Arbitration Law allowing the submission to arbitration of consumer and employment disputes were vetoed by the Brazilian Vice-President.

Despite its objective to modernize the 1996 Arbitration Law, the amendments lack clarity in some instances and introduce possibilities that will surely be challenging for arbitration practitioners.

Below, the thematically sorted key changes contained in the law:

Key change Signification
Public Entities One of the most controversial issues in the 1996 Arbitration Law was whether public entities were allowed to be party to arbitral proceedings. The amendments expressly allow public entities to use arbitration, should the dispute relate to disposable economic rights ("direitos patrimoniais disponíveis": economic rights that can be waived). Pursuant to the amendments, arbitration involving public entities shall always remain public.
Constitution of the arbitral tribunal With the amendments, parties may agree to avoid restrictions imposed by arbitration rules on the choice of arbitrators among those listed by the arbitration institution. The restriction on the choice of arbitrators is a recurrent practice in Brazil. For instance, the arbitration rules of the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (CAMCCBC), one of the main arbitration institutions in Brazil, prevent the parties from appointing arbitrators outside the list unless authorized by the president of CAM-CCBC. The rules also require the chairman of the arbitral tribunal to be a listed arbitrator.
Statute of Limitation The amendments introduce a rule concerning the statute of limitation, according to which the statute of limitation is interrupted by the institution of the arbitration, even if the arbitral tribunal eventually finds that it lacks jurisdiction. In accordance with the Arbitration Law, the arbitration is considered instituted once all arbitrators have accepted their appointment. Nevertheless, once the arbitration is instituted, the date of the request for arbitration determines the time in which the statute of limitation is interrupted.
Precautionary measures A new chapter dedicated to precautionary measures was introduced by the amendments, essentially consolidating the existing practice on the power of arbitrators to order precautionary measures and to review precautionary measures granted by courts before the constitution of the arbitral tribunal. The amendments allow the parties to seek precautionary measures from courts while the constitution of the arbitral tribunal is pending. After the arbitral tribunal is constituted, the parties may only request precautionary measures directly from the arbitrators. Precautionary measures granted by courts will remain in force provided that the institution of the arbitration is requested within 30 days of the date of enforcement of the court order. Once constituted, the arbitral tribunal will be empowered to uphold, modify or revoke precautionary measures granted by courts
Arbitral Letter ("Carta arbitral") The arbitral tribunal may communicate with courts through an arbitral letter ("carta arbitral"), which allows arbitrators to request adoption of enforcement measures directly from the courts, such as the deposition of uncooperative witnesses. The amendments align the 1996 Arbitration Law with the new Brazilian Code of Civil Procedure, which foresees that communications through "cartas arbitrais" will remain confidential as long as the parties have provided that the arbitration itself should be confidential.
Partial awards The amendments put an end to the controversy concerning the validity of partial awards. The amendments expressly state that arbitral tribunals may render final as well as partial awards. In addition, the amendments provide that the 90-day limit for applying for an award to be set aside is triggered by the notification of the award, regardless of being a partial or final award. As such, the amendments settle the controversy concerning the possibility of applying for a partial award to be set aside before the final award is rendered.
Arbitrator's power to decide on issues related to non-disposable rights The amendments revoke Article 25 of the 1996 Arbitration Law, which required arbitral tribunals to stay the proceedings and to refer to courts issues related to non-disposable rights ("direitos indisponíveis") upon which the decision of the arbitral tribunal is contingent. At first sight, the amendments aim at allowing arbitral tribunals to decide on the existence of non-disposable rights as an incidental or preliminary issue. However, to what extent is a decision on the existence of non-disposable rights consistent with the rule according to which parties may only submit to arbitration disputes concerning disposable rights? This is a matter which will certainly lead to controversial cases in which the jurisdiction of arbitral tribunals may be challenged because the dispute involves non-disposable rights.
Requests for clarification The amendments create a new rule pertaining to the time limit for filing requests for clarification of the arbitral award. Under the 1996 Arbitration Law, the parties had five days to request clarifications from the arbitral tribunal, differently from several arbitration rules, which provide for longer periods for requesting clarifications. Given that the 90-day deadline for applying to have an award vacated by a court was triggered by the decision on the request for clarification, requests for an award to be set aside could be considered time-barred by courts if the five-day deadline for clarification requests originally set forth in the 1996 Arbitration Law was not complied with. The amendments solve this problem by allowing the parties to freely determine the deadline for requests for clarification.

A problem remains, however, if under the arbitration rules the scope of the request for clarification is narrower than under the Arbitration Law. For instance, while the Arbitration Law allows the parties to request clarification in cases of material errors, obscurities, doubts and contradictions contained in the award, or if the arbitral tribunal fails to decide certain issues in the award, under the ICC Arbitration Rules the scope of such requests is limited to the correction of material errors and the interpretation of the award. The ICC Arbitration Rules do not set forth a deadline for the parties to request the arbitral tribunal to decide an issue that it failed to decide in the award. In this case, the parties would still have to follow the five day deadline in order to request the arbitral tribunal to clarify issues that were not decided in the award, in order to interrupt the 90-day time limit applicable to requests to set aside an award before the courts.

On the other hand, the amendments make clear that, in case the parties request the clarification of the award, the 90-day time limit for applying to court to vacate an award starts upon the decision on the request for clarification, irrespective of the decision of the arbitral tribunal. Under the 1996 Arbitration Law, it was not clear whether the request for clarification would only interrupt the 90 day deadline if the arbitral tribunal modified the award.
Annulment of Arbitral Awards and Supplementary Arbitral Awards The amendments introduce a new rule concerning the consequences of vacating an award. Under the 1996 Arbitration Law, the court would remit the case back to the original arbitral tribunal for a new award if the original award was vacated because it did not contain all statutory requirements (name of the parties, summary of the case, reasoning, ruling, time limit for compliance with the decision, date, place and signature); it was rendered outside the limits of the arbitration agreement; or it did not decide the whole dispute submitted to arbitration. In all other cases, the whole arbitration would be vacated. With the amendments, the decision on whether to vacate an award must decide whether he case should be remitted back to the original arbitral tribunal or not.

In addition, the amendments confer on the parties the possibility of going to courts to request the rendering of a supplementary arbitral award if the arbitral tribunal fails to decide every claim submitted to arbitration. Before the amendments, the 1996 Arbitration Law provided that the award could be vacated if the arbitral tribunal failed to decide the whole dispute and the case would be remitted back to the arbitral tribunal for a new award. With the amendments, awards are no longer subject to being set aside if the arbitral tribunal does not decide the whole dispute submitted to arbitration, leaving to the parties the option of requesting a supplementary arbitral award. It is not clear, however, whether the supplementary arbitral award would be rendered by the court or by an arbitral tribunal. The poor wording employed in the amendments could lead to both interpretations.
Corporate Disputes and Arbitration The amendments also modify the Brazilian Corporate Law in order to expressly allow arbitration clauses in by-laws of companies and to make the arbitration clause binding upon all shareholders, including those who voted against the insertion of the arbitration clause, granting them the right to exit the company.

The amendments aim at settling a long lasting battle among Brazilian arbitration practitioners. While some practitioners argued that arbitration clauses inserted in by-laws must be binding upon all shareholders, others advocated that the arbitration clause could not bind shareholders who did not expressly consent to arbitrate. The amendments, however, will certainly be subject to constitutional challenges because the right to access courts can only be restrained if the parties expressly consented to the arbitration clause.

Originally published May 2015

Learn more about our Litigation & Arbitration practice.

Visit us at Tauil & Chequer

Founded in 2001, Tauil & Chequer Advogados is a full service law firm with approximately 90 lawyers and offices in Rio de Janeiro, São Paulo and Vitória. T&C represents local and international businesses on their domestic and cross-border activities and offers clients the full range of legal services including: corporate and M&A; debt and equity capital markets; banking and finance; employment and benefits; environmental; intellectual property; litigation and dispute resolution; restructuring, bankruptcy and insolvency; tax; and real estate. The firm has a particularly strong and longstanding presence in the energy, oil and gas and infrastructure industries as well as with pension and investment funds. In December 2009, T&C entered into an agreement to operate in association with Mayer Brown LLP and become "Tauil & Chequer Advogados in association with Mayer Brown LLP."

© Copyright 2015. Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. All rights reserved.

This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.