Brazil: Brazil's Tortuous But Ultimately Encouraging Path Towards The Implementation Of The NY Convention

Arbitration in Brazil has come a long way since the passing of the Brazilian Arbitration Act in 1996 (the "BAA"). The BAA has its origins in the UNCITRAL Model Law and even though it preceded Brazil's ratification of the New York Convention by six years, the BAA is consistent with the New York Convention, at least partly because of its UNCITRAL origins. In these almost twenty years since the passing of the BAA and the ratification of the New York Convention, Brazil is slowly garnering a perception to be an arbitration-friendly jurisdiction. Despite or may be because of the success of arbitration in Brazil, the Brazilian Congress recently enacted an amendment to the BAA (Law No. 13129/2015) with a view to make punctual modifications to domestic aspects of the law. For example, the amendment confirms the ability of governmental entities to participate in arbitrations, the ability of companies and their shareholders to opt for arbitration in their bylaws, and expressly grants powers to arbitrators to issue interim relief. The amendment does not materially modify any aspect of proceedings to confirm foreign arbitral awards.

With the renewed interest in Brazilian arbitration that the new amendment has brought, it is timely to review the Brazilian jurisprudence on confirmation of foreign arbitral awards in these past 10 years.

Foreign arbitral awards 1 are subject only to a summary confirmation proceeding in the Brazilian Superior Tribunal of Justice ("STJ"). Merit inquiries (with the exception of sovereignty, public order and human dignity) are not permitted. See, e.g., Paladin PM Holmes Brazil Investors LLC v. Molnar Construtora e Incorporadora Ltda., SEC 8847 (2012/0244916-3).

STJ's role is limited to the determination whether STJ's requirements are met (STJ'S Internal Regulations), and whether any grounds for refusal to enforce exist (BAA, Articles 38 and 39). Articles 216-C and 216-D of STJ's Amendment to its Internal Rules No.18/2014 lay out the procedural requirements for confirmation proceedings. The confirmation petition must establish (1) tribunal's competence to hear the dispute; (2) valid service or validly obtained default award/ judgment; (3) res judicata; (4) sworn translation or consularization of the foreign arbitral award and of other necessary documents. In the event the petition lacks these requirements or is otherwise defective, the petitioner has an opportunity to cure the defect within a time period. If it fails to do so, the petition is archived (equivalent to a dismissal without res judicata effect). Pursuant to Article 216-F, the STJ will not enforce a foreign arbitral award that violates Brazil's sovereignty, Brazil's public policy or human dignity.

Pursuant to Articles 38 and 39 of the BAA, the following are grounds for non-confirmation: (1) minors or incapacitated parties; (2) invalid arbitral agreement under the chosen law or under the laws of the seat; (3) resisting party was not notified of the arbitral appointment, proceeding or due process is otherwise violated; (4) the arbitral award issued beyond the scope of the arbitral clause and it is impossible to separate that part of the decision from the rest of the award; (5) arbitral institution not chosen by the parties; (6) arbitral award did not have res judicata effect or the award had been suspended or annulled at a court of the seat; (7) subject matter of the arbitration cannot be arbitrated under Brazilian law or the arbitral award violates Brazilian public order.

We reviewed approximately forty confirmation decisions by the STJ since 2005. In only seven cases the STJ refused to enforce the foreign arbitral award or at least part of the foreign arbitral award. Five of these seven cases were decided in 2005, the first year in which the STJ became responsible for confirmation proceedings. The last time confirmation denied in toto was in 2007. Since 2005 the STJ has had a chance to reconsider most of the issues that were once grounds for refusal and it has expressly rejected most of them in recent cases. Below is a brief account of how the jurisprudence has evolved in these 10 or so years.

Lack of Standing

Gottwald Port Technology GMBH v. Rodrimar S/A Transportes Equipamentos Industriais e Armazéns Gerais, SEC 968 (2005/ 0053918-3). In Gottwald, the STJ refused to confirm the foreign arbitral award by reason of petitioner's lack of standing. Petitioner had acquired the right to collect the proceeds of an arbitral award through assignment between it and the original claimant in the arbitration. The STJ's decision was without res judicata effect and the Petitioner was ultimately successful in ATECS Mannesmann GMBH v. Rodrimar S/A, SEC 3035 (2008/0044435-0) (confirming the foreign arbitral award and finding standing where the rights under the arbitration agreement had been succeeded by virtue of succession by merger).

Lack of Consent

Plexus Cotton Limited v. Santana Textil S/A, SEC 967 (2005/0053998-0); Indutech SPA v. Algocentro Armazéns Gerais Ltda., SEC 978 (200560173771-1); Kanematsu USA Inc. v. ATS Advanced Telecommunications Systems do Brasil Ltda., SEC 885 (2005/0034898-7), Oleaginosa Industrial Financeira Imobiliária Y Agropecuaria v. Moinho Paulista Ltda., SEC 866 (2005/0034926-5). In these four 2005 cases, the STJ refused to confirm the foreign arbitral awards on lack of consent grounds, specifically lack of signature, which was then considered a requirement in order to express consent. Recent cases have adopted a view that an agreement in writing, not a signature, is necessary to establish consent. See L'Aiglon S.A. v. Textil União S/A, SEC 856 (2005/0031430-2).

Res Judicata/ Parallel Proceedings

Parallel proceedings and the effect of res judicata have taken center stage in the recent jurisprudence of the STJ. The STJ has put to rest the notion that a party can resist confirmation on the grounds of domestic res judicata or parallel proceedings alone. In recent cases, the STJ has looked at the nature of the demand and the remedy sought to determine whether jurisdiction is concurrent or if it overlaps. If there is no complete overlap between the domestic and the international cases, the court will not consider the proceedings parallel. The STJ has confirmed foreign arbitral awards in situations where parallel proceedings existed in Brazil but the Brazilian court has not rendered a decision. See First Brands do Brasil Ltda. v. STP Petroplus Produtos Automotivos S/A PPA, SEC 611 (2005/0055688-0) (action to annul award is not obstacle where decision has not been rendered). The STJ has also confirmed foreign arbitral awards in cases where a Brazilian decision exists but is posterior to the foreign arbitral award. See Tristao Trading (Panama) S.A. v. Naumann Gepp Comercial e Exportadora, Ltda., SEC 9714 (2013/0247110-2). On the other hand, the STJ has refused to enforce portions of an award covering topics that had already been decided by a Brazilian court in Kia Motors Corporation v. Lopes et al., SEC No. 1 EX (2007/0156979-5).

Invalid Service

In Subway Partners CV v. HTP High Technology Foods Corporation S/A, SEC 833 (2005/032212-5), the majority of the STJ decided to refuse to confirm the foreign arbitral award on the grounds that the petition required service by letter rogatory. This precedent seems to be an outliar.

Recent jurisprudence is in agreement that letters rogatory are not necessary when confirming foreign arbitral awards. See Al-Gharafa Sports Club v. Clemerson de Araujo Soares, SEC 11529 (2014/0136915-1); Paladin PH Holmes Brazil Investors LLC v. Molnar Construtora e Incorporadora Ltda., SEC 8847 (2012/0244916-3); SEC 6760 (2011/0197514-1).

Public Order

In Ssangyong Corporation v. Eldorado Indústrias Plásticas Ltda., SEC 826 (2005/0031322-7), the STJ refused to enforce an award on the grounds that the petitioner had already submitted to the jurisdiction of the Brazilian courts by filing a notice of claim in the judicial restructuring of the respondent Eldorado.

Under the res judicata prong of the grounds, Brazil will also not confirm a foreign arbitral award that has been set aside by the court of the situs of the arbitration. In those cases, the STJ has pronounced that such award is a legal nullity and therefore has no res judicata effect. BAA, Article 38, VI. This does not mean that a double exequatur requirement exists. But once and if the foreign award has been set aside in the courts of the situs, the award is no longer enforceable in Brazil.


Recent cases have dealt with the binding nature of the arbitration clause in relation to third parties to the arbitration agreement. In Newedge USA LLC v. Manoel Fernando Garcia, SEC No. 5692 (20012/0246980-3), the STJ confirmed an award against a guarantor who was not party to the arbitration agreement. Noting that the guarantee made reference to the arbitration agreement as well as the fact that the award had already been "confirmed" by the courts of the situs of the arbitration (New York), the STJ rejected the argument that the enforcement of the award against a non-signatory violated Brazilian's public order of sovereignty and confirmed the award. See also, Converse Inc. v. American Telecommunication do Brasil Ltda., SEC No. 3709 (2008/0266915-8)(confirming foreign arbitration award against parties not original signatories of the arbitration agreement, but that had brought counterclaims and had consented to be bound by the arbitration during the course of the arbitration.), LITSA Líneas de Transmisión del Litoral S/A v. SV Engenharia S/A, SEC 894 (2005/0203077-2) (confirming award against party that had succeeded the signatory of the arbitration agreement by acquiring all rights under all assumed contracts through acquisition).


We reviewed approximately 40 confirmation cases rendered since 2005. We identified only seven cases where the foreign arbitral award was not confirmed. Moreover, the reasoning behind most of these decisions has been rejected in more recent cases. Brazil is garnering a perception to be an arbitration-friendly jurisdiction in part based on the relative solid body of cases from the STJ confirming foreign arbitral awards.


1. Unlike US law, Brazilian law does not look into the nationality of the parties to the arbitration to define whether an arbitration is domestic or international. Brazilian law looks only at the situs of the arbitration. BAA, Article 34, sole paragraph. As a result, an arbitration between two foreign parties sited in Brazil will be considered a domestic arbitration by the Brazilian judiciary, subject to broader judicial review (Article 32 of the Brazilian Arbitration Act). STJ REsp 1231554/RJ (2011/0006426-8)(June 1, 2011). By contrast, an arbitration between two Brazilian parties in a foreign situs will be considered a foreign arbitration, subject to the New York Convention grounds only.

First published by Kluwer Arbitration Blog

Brazil's Tortuous But Ultimately Encouraging Path Towards The Implementation Of The NY Convention

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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.