Although most disputes in Brazil are still resolved before the judiciary, arbitration has become a widely accepted method for complex business disputes, particularly high-value and technically complex matters involving corporate issues, infrastructure, construction, energy, oil and gas, capital markets, M&A and other sophisticated commercial transactions. That said, litigation remains the most common dispute resolution method in Brazil overall, given the volume of cases before the courts.

This development followed the enactment of the Brazilian Arbitration Act (BAA) and the consolidation of a pro-arbitration legal environment, supported by party autonomy, limited judicial intervention and the courts’ recognition of the effectiveness of arbitration agreements and arbitral awards. A key milestone was the Federal Supreme Court’s (STF) recognition of the constitutionality of the BAA in 2001, which definitively affirmed the validity of arbitration agreements and removed lingering doubts about their enforceability. Brazil’s accession to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) further reinforced its integration into the international arbitration system. Brazil – and São Paulo in particular – also serves as a seat in some international arbitrations connected to Latin America, supported by the maturity of the Brazilian arbitration market and the development of experienced domestic arbitration institutions.

International arbitration activity in Brazil has been particularly significant in corporate disputes, construction and infrastructure projects, energy, oil and gas, and complex commercial contracts. Corporate matters consistently lead in the number of new arbitrations, followed by construction and energy disputes and general commercial contracts.

The prevalence of arbitration in these sectors is partly explained by the complexity and high value of the transactions, the frequent involvement of foreign investors or parties, and the need for specialised decision-makers. In some areas, arbitration is mandatory, such as in certain energy-related disputes and in corporate disputes involving publicly held companies listed at specific levels of B3, the São Paulo Stock Exchange.

A more recent development is the growth of labour arbitration, which has stood out in the statistics in the last few years. This followed Law No 13,467/2017, which introduced Article 507-A into the Consolidation of Labour Laws (CLT) and allowed arbitration to resolve labour disputes involving employees whose salaries exceed twice the ceiling for General Social Security benefits – typically executives and employees in management or senior positions. Arbitration has also been developing considerably in the maritime and sports sectors.

According to the well-known survey Arbitragem em Números conducted by Professor Selma Lemes, the 2025 edition (covering the 2023–2024 biennium) indicates that arbitrations involving international contracts – those with a foreign party – are primarily conducted before the CAM-B3 (Câmara do Mercado), CAM-CCBC and the International Chamber of Commerce (ICC). These institutions are preferred for their experience with complex, high-value and cross-border disputes, their established rules and rosters of qualified arbitrators, and their institutional credibility with both domestic and foreign parties.

As for new institutions, a high volume of small arbitral chambers is being created, often oriented towards specialisation or regional expansion. In addition, Law No 14,711/2023 (the Legal Framework for Guarantees) expressly authorises notaries public to act as arbitrators in resolving certain out-of-court disputes, which may in time foster new arbitration-related activity outside the traditional institutional chambers.

In Brazil, there is no single international commercial court or nationwide court exclusively designated to hear arbitration-related disputes. Domestic arbitration-related matters are generally submitted to the competent state court under the ordinary rules of jurisdiction, although some state courts – notably the São Paulo Court of Justice (TJSP) – have created specialised chambers for business matters. 

Foreign arbitral awards, however, must be recognised by the Superior Court of Justice (SCJ) before they can be enforced in Brazil, pursuant to Article 35 of the BAA. Article 34 further provides that foreign arbitral awards shall be recognised and enforced in accordance with applicable international treaties, including the New York Convention, enacted in Brazil by Decree No 4,311/2002. Once recognised, the award is enforced before the federal courts of first instance.

Arbitration seated in Brazil is governed by the BAA. The Act applies to both domestic and international arbitrations seated in Brazil, since Brazilian law adopts a monist approach and does not provide for separate statutory regimes for each category. The BAA was influenced by the UNCITRAL Model Law, but it does not fully adopt that model. Its main similarities include:

• party autonomy to define the procedure, under Article 21;
• separability of the arbitration agreement, under Article 8;
• kompetenz-kompetenz (competence-competence) under the sole paragraph of Article 8;
• limited judicial intervention; and
• recognition of the binding effect of arbitral awards, under Article 31.

The main differences include:

• specific formal requirements for arbitration agreements, distinguishing the arbitration clause (Article 4) from the submission agreement (Article 9), whereas the Model Law treats the arbitration agreement as a single concept;
• a distinct regime for interim measures, which does not follow Chapter IV-A of the 2006 Model Law revision – pre-arbitral urgent relief is governed by Articles 22-A and 22-B, with its own framework;
• a narrower regime for requests for clarification of awards under Article 30, subject to a shorter time limit than the corresponding provision of the Model Law; and
• specific rules on court assistance, including the constitution of the tribunal under Article 7 and judicial co-operation through arbitral letters (cartas arbitrais) under Article 22-C.

The BAA remains the main legal framework governing arbitration in Brazil, and there have been no recent amendments to it. However, past reforms, sector-specific legislation and pending bills should still be monitored. The main points are as follows.

2015 Reform

Law No 13,129/2015 amended the BAA. Among other changes, it:

• expressly allowed the direct and indirect public administration to use arbitration for disputes involving disposable patrimonial rights;
• regulated interim and urgent measures;
• introduced arbitral letters as a mechanism of co-operation between courts and arbitral tribunals; and
• recognised partial arbitral awards.

Sector-Specific Developments

Changes in other areas of legislation may indirectly affect arbitration. For example, Law No 15,040/2024 (the new Legal Framework for Insurance Contracts), which entered into force on 11 December 2025, expressly admits arbitration for insurance disputes, provided that the arbitration is seated in Brazil and governed by Brazilian substantive law (Article 129).

Pending Legislation

Bill No 3,293/2021, still under review before the Chamber of Deputies, proposes changes concerning arbitrators’ duties and the duty of disclosure – including a stricter “minimal doubt” standard in place of the current “justified doubt” test and a cap of ten simultaneous arbitrations per arbitrator – as well as the publication of certain information after the conclusion of arbitral proceedings and the publicity of annulment actions. The bill has drawn significant criticism from the arbitration community. 

Therefore, while there has been no recent enacted reform of the BAA itself, legislative developments outside the statute and pending reform proposals may still have practical effects on arbitration in Brazil.

Under Brazilian law, the arbitration agreement encompasses both the arbitration clause and the submission agreement (Article 3 of the BAA). It is enforceable if it meets the requirements of the BAA and the general validity requirements of the Brazilian Civil Code (BCC). The main requirements are:

• the parties must be capable of contracting – the dispute must involve disposable patrimonial rights (Article 1 of the BAA);
• the subject matter must be lawful, possible and determined or determinable (Article 104 of the BCC);
• the agreement must be in writing (Article 4, paragraph 1 of the BAA);
• in adhesion contracts, the clause is only effective if in a separate document or in boldface, with the adhering party’s specific written consent (Article 4, paragraph 2 of the BAA); and
• in consumer contracts, arbitration cannot be imposed unilaterally on the consumer (Article 51, VII of the Consumer Protection Code).

An arbitration clause is deemed “empty” when it expresses the intention to arbitrate without specifying the elements needed to commence the arbitration (such as the institution or rules, seat and method for appointing arbitrators). It then requires a subsequent submission agreement or recourse to Article 7 of the BAA to constitute the tribunal. Article 7 provides a judicial mechanism to institute arbitration where a valid arbitration clause exists but one party refuses to enter into the submission agreement needed to commence the proceedings. This is a court-support function that gives effect to the parties’ agreement to arbitrate, rather than displacing arbitration.

In Brazil, only disposable patrimonial rights may be submitted to arbitration, pursuant to Article 1 of the BAA. This is the general test for arbitrability: the right must have an economic nature (patrimonial) and be capable of voluntary disposition by the parties (disposable). Where a right is unavailable – because it cannot be waived or freely disposed of – it falls outside the scope of arbitration.

Consequently, matters such as criminal law, personal status and capacity, and the core of family law cannot be submitted to arbitration, as they involve non-disposable rights. Disputes involving public entities are arbitrable where they concern disposable patrimonial rights (Article 1, paragraph 1 of the BAA), provided that the arbitration is conducted at law and observes the principle of publicity (Article 2, paragraph 3 of the BAA), in line with applicable constitutional principles.

There is no consolidated case law in Brazil establishing a specific test to determine the law governing the arbitration agreement as distinct from the law of the underlying contract or the law of the seat. In practice, courts tend to give effect to the parties’ intention and to uphold the arbitration agreement, consistently with their pro-arbitration stance.

As to enforcement, Brazilian courts consistently enforce arbitration agreements. Once a valid arbitration clause is identified, the court will decline jurisdiction over the merits and refer the parties to arbitration. This reflects the principle of kompetenz-kompetenz, under which it is primarily for the arbitral tribunal to rule on the validity of the arbitration agreement, with limited judicial review beforehand.

Article 8 of the BAA adopts the principle of separability: the arbitration clause is legally independent from the main contract in which it is contained. As a result, the invalidity, termination or rescission of the main contract does not, by itself, affect the validity or enforceability of the arbitration clause, and any challenge to the main contract will not prevent the dispute from being referred to arbitration.

The sole paragraph of Article 8 links separability to the kompetenz-kompetenz principle, empowering the arbitral tribunal to rule, in the first instance, on its own jurisdiction and on the existence, validity and effectiveness of both the arbitration agreement and the underlying contract. Accordingly, arbitration clauses generally survive defects affecting the main contract, unless the alleged invalidity concerns the arbitration agreement itself.

In Brazil, the parties’ autonomy to select arbitrators is broad but subject to limits. Any legally capable individual may serve as arbitrator, and there is no nationality requirement. Arbitrators must be impartial and independent, pursuant to Articles 13, 14 and 20 of the BAA. In collegiate tribunals, the number of arbitrators must be odd (Article 13, paragraph 1). Where the arbitration is institutional, the rules of the chosen institution govern the appointment procedure, provided legal limits are respected; the parties may, however, agree to disapply any rule restricting their choice to the institution’s closed list of arbitrators (Article 13, paragraph 4).

In light of the principle of party autonomy, the parties may set objective selection criteria, such as technical qualifications or experience, always subject to the arbitrator’s duties of impartiality and independence.

Where the arbitration is institutional, the rules of the chosen institution govern the appointment and typically provide a default mechanism for the institution to appoint arbitrators if the parties’ chosen method fails. Where the arbitration is ad hoc, or where no institutional mechanism resolves the impasse, the interested party may resort to the courts under Article 7 of the BAA to supply the missing appointment and ensure the constitution of the tribunal. Judicial intervention is therefore subsidiary, limited to situations where no institutional rule applies or where the agreed procedure proves ineffective.

In Brazil, judicial involvement in the appointment of arbitrators is exceptional. As a rule, the constitution of the arbitral tribunal follows the mechanism agreed by the parties or, in institutional arbitration, the rules of the chosen institution.

Court assistance may be available where the agreed mechanism cannot operate properly – for example, where the arbitration clause is silent or incomplete on the appointment process, or where one party refuses to co-operate in constituting the tribunal. In such cases, Articles 6 and 7 of the BAA allow the interested party to seek judicial assistance so that the arbitration may proceed. Defects in the appointment of arbitrators may also be raised at the annulment or enforcement stage, particularly where they involve a breach of mandatory legal requirements or of due process. 

The limits on this power are significant: judicial intervention is subsidiary and, as a rule, courts must respect the negative effect of kompetenz-kompetenz, leaving it to the arbitral tribunal to rule first on such matters. However, a recent and much-debated decision has modulated this boundary. In a multiparty arbitration before the CAM-B3, the chamber’s president, applying an internal rule inspired by the Dutco case, appointed all three members of the tribunal and set aside a co-arbitrator previously nominated by one of the parties. The São Paulo Court of Appeals (Apelação Cível No 1129029-43.2024.8.26.0100, 2nd Reserved Chamber of Business Law, judgment of 18 November 2025) allowed judicial review by characterising the president’s decision as administrative – rather than jurisdictional – in nature: because the appointment was treated as an act of procedural administration by the institution, and not as an exercise of the tribunal’s jurisdiction, it was held to be subject to ordinary judicial review of its legality without offending kompetenz-kompetenz. On the merits, the court found that the party’s right to appoint its own arbitrator under Article 13 of the BAA prevailed over the institution’s internal rule, reinstated that party’s nominee and annulled the constitution of the tribunal. The decision is not yet final.

Under Articles 13, 14 and 20 of the BAA, arbitrators must meet the requirements of legal capacity, impartiality and independence. They are subject to the same grounds for impediment and suspicion applicable to judges under Articles 144 and 145 of the Code of Civil Procedure (CCP), and must therefore remain independent of the interests of those involved in the proceedings. Arbitrators are also under a duty to disclose any fact that may raise justified doubt as to their independence or impartiality (Article 14, paragraph 1).

In institutional arbitration, the institution will normally decide the challenge unless its rules provide otherwise. If an arbitrator who could not serve improperly remains in office, this may later support an annulment action against the award – either because the award was rendered by someone who could not act as arbitrator (Article 32, II) or because the principles of impartiality and equal treatment set out in Article 21, paragraph 2 were violated (Article 32, VIII). Brazilian courts, however, generally require a concrete and relevant impact on independence, impartiality or due process.

As discussed in 4.4 Challenge and Removal of Arbitrators, the BAA requires arbitrators to be impartial, independent and legally capable. They must also act with diligence and discretion, and are subject to the rules on impediment and suspicion applicable to judges under the CCP, where compatible with arbitration. In practice, this assessment is also – and almost always – guided by soft-law instruments, such as the IBA Guidelines on Conflicts of Interest in International Arbitration and the CBAr guidelines on the arbitrator’s duty of disclosure.

Arbitrators also have a continuing duty of disclosure, from the time of appointment and throughout the proceedings, regarding any circumstance that may give rise to justifiable doubts as to their impartiality or independence. This duty is assessed objectively and has also been addressed by the Federal Justice Council’s Jornadas de Prevenção e Solução Extrajudicial de Litígios.

Failure to disclose relevant facts may lead to the arbitrator’s removal and, in more serious cases, to the annulment of the award. The SCJ generally adopts a case-by-case approach: a breach of the duty of disclosure does not automatically invalidate the award unless the omitted facts are sufficiently relevant to cast objective doubt on the arbitrator’s impartiality or independence.

The sole paragraph of Article 8 of the BAA empowers the arbitral tribunal to decide on its own jurisdiction, giving effect to the kompetenz-kompetenz principle. The tribunal has primary authority to rule on the existence, validity and effectiveness of the arbitration agreement and of the contract containing it. This principle also has a negative effect: as a rule, state courts must defer to the arbitral tribunal, which has priority to rule first on its own jurisdiction, with judicial review reserved for cases of manifest nullity of the arbitration agreement.

As noted in 5.1 Challenges to Jurisdiction, Article 8 of the BAA establishes the kompetenz-kompetenz principle, under which the arbitral tribunal has authority to decide on its own jurisdiction, including objections relating to the existence, validity and effectiveness of the arbitration agreement. Brazilian courts generally respect this principle and are reluctant to intervene in jurisdictional matters before or during the arbitral proceedings – the main exception being cases of manifest nullity of the arbitration agreement.

Nonetheless, judicial intervention tends to be limited and deferential to arbitration. Negative rulings on jurisdiction may also be brought before the courts, particularly where the arbitral proceedings are terminated without a decision on the merits. In such cases, the courts may examine the existence, validity and effectiveness of the arbitration agreement, although the appropriate procedural means to do so remain subject to debate.

Judicial review of the arbitral tribunal’s jurisdiction is generally available only after an arbitral award has been rendered – whether partial or final – through an action to set aside the award under Article 32, I of the BAA, which must be filed within the 90-day time limit of Article 33, paragraph 1. Brazilian courts therefore tend to avoid early intervention, except in exceptional cases where the invalidity of the arbitration agreement is manifest and can be verified prima facie.

Brazilian courts do not conduct an open review of jurisdictional or admissibility decisions, nor do they reassess the merits of the dispute. Judicial review is confined to the exhaustive grounds for setting aside an award listed in Article 32 of the BAA. These grounds are essentially formal in nature and include:

• the nullity of the arbitration agreement (item I);
• an award rendered by someone who could not act as arbitrator (item II);
• failure to meet the mandatory requirements of the award (item III);
• an award exceeding the limits of the arbitration agreement (item IV);
• proof of corruption, extortion or bribery (item VI);
• an award rendered outside the applicable time limit (item VII); and
• violation of the principles of due process, equal treatment of the parties, impartiality of the arbitrator and free evaluation of the evidence (item VIII, referring to Article 21, paragraph 2).

Brazilian courts generally respect the kompetenz-kompetenz principle and are reluctant to intervene where a valid and applicable arbitration agreement exists. Court proceedings brought in breach of an arbitration agreement will therefore usually not be allowed to continue.

The defendant must invoke the arbitration agreement as a preliminary matter in the defence (Article 337, X of the CCP). Because the court cannot raise the arbitration agreement on its own initiative, failure to invoke it implies acceptance of the state court’s jurisdiction and waiver of arbitration (Article 337, paragraphs 5 and 6 of the CCP). Once the arbitration agreement is properly raised, the court will decline jurisdiction and dismiss the case without ruling on the merits (Article 485, VII of the CCP), except where the arbitration agreement is manifestly null or inapplicable.

Brazilian arbitration is grounded in party consent, and Brazilian law does not expressly regulate the extension of the arbitration agreement to non-signatories. Nevertheless, case law and legal scholarship recognise that this may be admitted in exceptional circumstances.

Arbitral jurisdiction over non-signatories may be accepted where there is a sufficient basis to infer consent or otherwise to bind the third party – for example, in cases of succession, assignment, representation, or interconnected or linked contracts, where the third party took part in the negotiation, performance or termination of the relationship. The “group of companies” doctrine and the piercing of the corporate veil have also been invoked, although courts apply them with caution and generally require evidence of actual consent or participation, rather than mere membership of the same economic group. Brazilian law does not distinguish between domestic and foreign third parties; what matters is whether there is a valid legal basis to bind the non-signatory to the arbitration agreement.

Arbitral tribunals seated in Brazil may grant preliminary, interim and conservatory relief (Articles 22-A and 22-B of the BAA). This authority derives from the tribunal’s jurisdiction over the dispute and does not depend on an express provision in the arbitration agreement.

Before the tribunal is constituted, parties may seek urgent relief from the state courts. If the request is granted, the interested party must institute the arbitration within 30 days, failing which the measure ceases to be effective (Article 22-A, sole paragraph). Once the tribunal is in place, it may maintain, modify or revoke measures previously granted by the court and may also issue new interim orders (Article 22-B, sole paragraph).

Interim relief may be either precautionary (aimed at preserving the usefulness of the final award) or anticipatory (aimed at provisionally granting part of the relief sought where the legal requirements are met). Common forms of relief include:

• attachment or freezing of assets;
• preservation or restoration of the status quo;
• orders to prevent aggravation of the dispute;
• preservation or advance production of evidence;
• orders to refrain from certain conduct; and
• measures intended to secure the effectiveness of the final award.

Brazilian procedural law generally requires urgent measures to be supported by the likelihood of the right asserted and the risk of harm or of the final decision becoming ineffective (Article 300 of the CCP). Evidence-based provisional relief (tutela da evidência, Article 311 of the CCP) may also be available where the right asserted is sufficiently clear, even without urgency.

Interim measures ordered by arbitral tribunals are binding on the parties and are not merely recommendations. A party that fails to comply may face procedural consequences within the arbitration. However, arbitrators do not have direct coercive powers. Where compulsory enforcement is required – particularly against third parties or assets – the tribunal may seek the assistance of the competent state court, including through an arbitral letter (carta arbitral, Article 22-C of the BAA).

As discussed previously, state courts play a central role in interim relief before the arbitral tribunal is constituted. Thereafter, the courts intervene mainly to lend coercive enforcement to measures ordered in the arbitration, including through an arbitral letter (Article 22-C). Brazilian courts may also grant interim relief in aid of foreign-seated arbitrations, particularly where the assets, evidence or persons concerned are located in Brazil.

As for emergency arbitrators, the BAA neither expressly provides for nor prohibits them; their use is accepted where the arbitration rules chosen by the parties so provide. Many institutions operating in Brazil, such as the CAM-B3, CAM-CCBC, CAMARB and CBMA, allow for the appointment of emergency arbitrators. Their decisions are binding on the parties while in force, in accordance with the applicable institutional rules, and may be reviewed, modified or revoked by the arbitral tribunal once constituted. Emergency arbitrators may grant provisional or urgent measures aimed at preserving rights, assets or evidence. Once an emergency arbitrator has been appointed under the applicable rules, the state courts are not expected to intervene.

The BAA does not expressly regulate security for costs. Nevertheless, it is generally regarded as encompassed by the arbitral tribunal’s power to grant interim and conservatory measures under Article 22-B of the BAA, as an exceptional measure available where there is a concrete risk that a party may be unable to meet an adverse costs award.

Although more developed in common law jurisdictions, requiring a party to post security is a familiar mechanism in the Brazilian procedural judicial system, which recognises an analogous institution in the caução (security) provided for in the CCP – for example, the security that may be required from a claimant resident abroad or without sufficient assets in Brazil to cover the costs and attorneys’ fees of the opposing party (Article 83 of the CCP).

Arbitration proceedings seated in Brazil are primarily governed by the BAA, which applies to both ad hoc and institutional arbitrations and forms the central statutory framework. The BAA gives the parties broad freedom to determine the procedure (Articles 5 and 21), provided that due process, equal treatment of the parties, impartiality of the arbitrators and the right to be heard are respected. This may cover, among other matters:

• the choice between institutional and ad hoc arbitration;
• the applicable institutional rules or recognised rules for ad hoc proceedings (such as the UNCITRAL Arbitration Rules);
• the seat and language;
• the procedural timetable;
• the appointment of arbitrators; and
• the rules on written submissions, evidence and hearings.

In institutional arbitration, the chosen institution’s rules govern the procedure and fill any gaps; in ad hoc arbitration, the parties and the tribunal have a greater role in defining the procedural framework.

The parties may also choose the rules of law applicable to the merits (Article 2, paragraph 1), provided that good morals and public policy are respected.

Importantly, the prevailing view – confirmed by the SCJ – is that the CCP does not apply automatically or subsidiarily to arbitration, given its autonomous and private-law nature. The CCP may nevertheless be relevant where the parties or the institutional rules so provide, where a provision is used by analogy in a manner compatible with arbitration, or in court proceedings connected to the arbitration (such as interim relief, court assistance, annulment and enforcement).

The BAA does not impose a rigid procedural structure for arbitrations seated in Brazil. The parties are free to define the procedure directly or by choosing institutional rules, provided that fundamental guarantees are respected.

In practice, arbitrations usually include one or two rounds of written submissions, an evidentiary phase, hearings, post-hearing submissions and the final award. Terms of reference or similar documents are commonly used to define the claims, applicable rules, timetable, seat, language and composition of the tribunal, although they are not required by law. Hearings may be held in person, virtually or in hybrid format, provided that the parties’ procedural rights are preserved.

Arbitrators in Brazil have broad powers to conduct the proceedings and decide the dispute submitted to them. The BAA equates the arbitrator to a judge, both in fact and in law (Article 18), so that the arbitral award is not subject to appeal or to confirmation by the state courts. Their main powers include:

• ruling on their own jurisdiction (Article 8, sole paragraph);
• conducting the proceedings (Article 21);
• hearing witnesses and determining the production of evidence (Article 22);
• granting interim or urgent measures (Articles 22-A and 22-B);
• requesting judicial co-operation through arbitral letters (Article 22-C);
• rendering partial or final awards (Article 23, paragraph 1); and
• deciding the dispute at law or in equity, if so authorised by the parties (Article 2).

As to their duties, arbitrators must act with impartiality, independence, competence, diligence and discretion (Article 13, paragraph 6), and are subject to the duty of disclosure and to the grounds for impediment and suspicion (Article 14). They must observe the procedural guarantees of Article 21, paragraph 2 – adversarial proceedings, equal treatment of the parties, impartiality and free evaluation of the evidence – and must render the award within the agreed time limit or, failing agreement, within six months (Article 23).

Arbitrators have no direct coercive authority and may require court assistance for compulsory measures. They must also remain within the limits of the arbitration agreement and of the parties’ claims; otherwise, the award may be subject to annulment under Article 32 of the BAA. 

Under Article 21, paragraph 3 of the BAA, parties may be represented or assisted by any person of their choice in arbitral proceedings. There are therefore no mandatory local qualification requirements for legal representatives in arbitrations seated in Brazil. This applies to both domestic and international arbitrations. Parties may be represented by Brazilian lawyers, foreign lawyers, in-house counsel or other chosen representatives, unless otherwise provided.

A distinction must be drawn between representation in arbitration and representation before the state courts. In court proceedings connected to the arbitration, representation must be carried out by lawyers admitted to practice in Brazil.

The BAA does not provide a detailed evidentiary regime. Article 22 gives arbitral tribunals broad authority to hear the parties and witnesses, order expert evidence and determine the production of any other evidence considered necessary, whether on request or on the tribunal’s own initiative. Particularly in international arbitrations, the taking of evidence is frequently guided by the IBA Rules on the Taking of Evidence in International Arbitration, adopted by agreement or as guidance. In practice: 

• documentary evidence is usually submitted with the parties’ written pleadings;
• document production is generally limited and targeted, rather than broad common law-style discovery;
• witness evidence may be presented through written statements, followed by oral examination and cross-examination at the hearing, especially in international and complex arbitrations, although its scope depends on the parties’ agreement, the institutional rules and procedural orders; and
• objections to the production of documents may be raised based on the professional secrecy of lawyers, which is a statutory and ethical duty of the lawyer.

As noted previously, the BAA does not impose a detailed evidentiary regime, and Article 22 gives the tribunal broad authority to determine and assess the evidence it considers necessary, whether on its own initiative or at the request of the parties.

The key point for present purposes is that the rules of evidence applicable to domestic court proceedings do not apply automatically to arbitration, unless the parties so agree or the tribunal considers them useful by analogy. The tribunal therefore has broad discretion to assess the relevance, materiality and sufficiency of the evidence, without being bound by the CCP’s evidentiary rules.

Fundamental principles nevertheless remain applicable, including due process, equal treatment of the parties, procedural good faith and the constitutional prohibition on the use of unlawfully obtained evidence (Article 5, LVI of the Federal Constitution).

Arbitral tribunals seated in Brazil may order the production of documents, witness testimony and other evidence necessary to decide the dispute. Article 22 of the BAA empowers arbitrators to hear witnesses, determine expert evidence and require the production of documents, whether at the request of the parties or on their own initiative.

The tribunal’s powers are stronger in relation to the parties, who are bound by the arbitration agreement and by the procedural orders issued in the arbitration. If a party fails to comply with an evidentiary order, the tribunal may draw adverse inferences or attach other procedural consequences to that conduct – an approach reflected in Article 22, paragraph 2 of the BAA and in the rules commonly applied in international arbitration – provided that due process is respected (Article 21, paragraph 2). 

The position differs for non-parties. Arbitrators have no direct coercive powers and cannot compel third parties. Where compulsory measures are required – for example, the coercive attendance of a reluctant witness or the production of documents held by a third party – the tribunal must seek court assistance through an arbitral letter (carta arbitral, Article 22-C of the BAA), and enforcement ultimately depends on the state courts. 

In Brazil, confidentiality is not established as a broad statutory rule applicable to all participants. The BAA requires arbitrators to act with discretion, while confidentiality as such is commonly provided for in institutional rules or in the parties’ agreement, binding arbitrators, tribunal secretaries, experts, the parties and other participants.

Confidentiality may be limited in certain circumstances – for example, arbitrations involving public entities (which are subject to the principle of publicity under Article 2, paragraph 3 of the BAA), disclosure duties applicable to publicly held companies, or the need to produce documents in court proceedings to protect a party’s rights. Court proceedings connected to a confidential arbitration may be placed under judicial secrecy where the confidentiality of the arbitration is demonstrated, although there has been a trend at the São Paulo Court of Justice towards a more restrictive approach, limiting secrecy to the documents and evidence directly connected to the arbitration rather than automatically sealing the entire court record. 

As to subsequent use, evidence produced in arbitration may in principle be used in later judicial, arbitral or administrative proceedings as “borrowed evidence”, provided it was lawfully obtained, is relevant, and the adversarial principle is observed. Where the arbitration is confidential, however, the use of such evidence may be constrained by the applicable confidentiality obligations, and admissibility will depend on balancing the borrowed-evidence doctrine against the confidentiality owed in the original arbitration.

An arbitral award rendered in Brazil must comply with the formal requirements set out in Article 26 of the BAA. The award must:

• be made in writing;
• identify the parties;
• summarise the procedure (the report);
• state the reasons for the decision, addressing the questions of fact and law;
• contain the operative part, including any time limit for compliance; and
• indicate the date and place where it was rendered.

The award must remain within the limits of the arbitration agreement and of the claims submitted by the parties. The tribunal need not address every argument in detail, but the reasoning must be sufficient to allow the parties to understand the factual and legal basis of the decision.

As to timing, the award must be rendered within the period agreed by the parties. Failing agreement, the statutory period is six months from the institution of the arbitration or the replacement of an arbitrator (Article 23). A late award is not automatically void: the interested party must first notify the tribunal, granting an additional ten-day period for the award to be rendered; only then may the consequences of default apply (Article 12, III). The parties may also request clarification of the award within five days (Article 30) to correct a material error, clarify an obscurity, doubt or contradiction, or address an omission, without altering the substance of the decision.

There is no provision in the BAA setting out a closed list of remedies that an arbitral tribunal may or may not award. As a rule, tribunals have broad powers to grant effective relief, subject to arbitrability, the scope of the arbitration agreement, the parties’ claims, the applicable law, mandatory rules, good morals and Brazilian public policy.

Accordingly, the remedies available in judicial proceedings may generally be awarded in arbitration, including damages, specific performance, declaratory relief, rectification and injunctive relief. As noted previously, however, arbitrators have no coercive powers, so any compulsory enforcement must be sought before the state courts.

Punitive damages in the common law sense are not provided under Brazilian law, under which compensation is measured by the extent of the damage (Article 944 of the BCC), including material and moral (non-pecuniary) damages, which are fully recoverable – even though Brazilian courts recognise that their assessment carries a certain deterrent or exemplary function. Punitive damages may be considered where permitted by the law applicable and, even then, subject to Brazilian public policy, it being understood that their presence does not, in itself, constitute a breach of public policy capable of barring recognition.

Arbitral tribunals seated in Brazil may award interest, monetary adjustment, costs and, where applicable, legal fees. Their allocation depends on the parties’ agreement, the applicable procedural rules and the tribunal’s discretion. Article 27 of the BAA requires the award to decide the allocation of the costs and expenses of the arbitration, as well as any amount arising from bad-faith litigation, subject to the terms of the arbitration agreement.

There is no mandatory “costs follow the event” rule in Brazilian arbitration. In practice, however, tribunals tend to order the unsuccessful party to reimburse the reasonable and proven costs incurred by the prevailing party, including arbitration costs, the tribunal’s fees and expert fees.

Attorneys’ fees require a distinct analysis. Brazilian law distinguishes between contractual fees (agreed between a party and its own counsel) and statutory fees awarded to the prevailing party’s counsel (honorários de sucumbência). In court litigation, the latter belong to the lawyer as an autonomous right of a maintenance nature, generally set between 10% and 20% of the value of the award or economic benefit (Article 85 of the CCP). In arbitration, by contrast, neither type of fee is awarded automatically: tribunals will generally allocate attorneys’ fees only where the parties have consented to such allocation in the arbitration clause, the terms of reference or the applicable procedural rules and, in the absence of such consent, commonly refrain from allocating them.

Interest and monetary adjustment may be awarded where provided for in the contract or under the applicable substantive law.

In Brazil, arbitral awards are not subject to appeal on the merits: under Article 18 of the BAA, the arbitrator decides as a judge in fact and in law, and the award is not subject to appeal or to confirmation by the courts.

The only recourse is to seek the annulment (setting-aside) of the award, on the exhaustive grounds listed in Article 32 of the BAA – such as the nullity of the arbitration agreement, an award rendered by someone who could not act as arbitrator, an award exceeding the limits of the arbitration agreement, or a violation of due process, equal treatment, impartiality or the adversarial principle. The courts do not review the merits of the decision.

Annulment may be pursued in two ways:

• by an autonomous annulment action, which must be filed within 90 days of receipt of the award or of the decision on a request for clarification (Article 33, paragraph 1); or
• as a defence (impugnação) in the enforcement proceedings, should the prevailing party seek to enforce the award (Article 33, paragraph 3).

Under Brazilian law, the parties cannot, by agreement, either expand or exclude the scope of judicial review of an arbitral award. The award is final and not subject to appeal on the merits (Article 18 of the BAA), and judicial control is confined to the exhaustive grounds for annulment set out in Article 32.

Brazilian courts do not conduct a de novo review of the merits of an arbitral award. Judicial review is limited and deferential: the courts may not reassess the facts, the evidence or the legal reasoning adopted by the arbitral tribunal. An award may be challenged only on the restricted grounds set out in Article 32 of the BAA – such as the nullity of the arbitration agreement, a violation of due process or of the adversarial principle, an award exceeding the limits of the arbitration agreement, or the irregular constitution of the tribunal. The role of the courts is therefore confined to reviewing the validity of the award, not the correctness of the decision on the merits.

The recognition and enforcement of foreign arbitral awards is governed by the BAA (Articles 34 to 40), the CCP (Articles 960 to 965) and the Internal Rules of the SCJ (Articles 216-A et seq), whose requirements mirror the rationale of the New York Convention. 

Brazil acceded to the New York Convention without any reservation and incorporated it into domestic law by Decree No 4,311/2002. Brazil is also a party to other relevant instruments, including:

• the 1975 Inter-American Convention on International Commercial Arbitration (the “Panama Convention”), enacted by Decree No 1,902/1996;
• the 1979 Inter-American Convention on the Extraterritorial Validity of Foreign Judgments and Arbitral Awards (the “Montevideo Convention”), enacted by Decree No 2,411/1997;
• the 1998 MERCOSUR Agreement on International Commercial Arbitration, enacted by Decree No 4,719/2003; and
• the 1992 Las Leñas Protocol on Jurisdictional Cooperation and Assistance.

Each of these instruments applies only where its conditions of applicability are met – for example, where the award was rendered in another contracting state.

Domestic arbitral awards are enforceable in Brazil as judicial enforcement titles. Under Article 31 of the BAA, an arbitral award has the same effect between the parties as a court judgment, and Article 515, VII of the CCP recognises it as an enforceable judicial title. Enforcement is brought before the competent state court; no prior judicial confirmation is required, the court does not review the merits, and the debtor may raise only the limited defences available in enforcement proceedings (including annulment on the grounds of Article 32, as noted previously).

Foreign arbitral awards follow a different route. Under Article 35 of the BAA and Article 105, I, “i” of the Federal Constitution, they must first be recognised by the SCJ. In general, recognition requires the award and the arbitration agreement (with certified copies and a sworn Portuguese translation where applicable) and compliance with the New York Convention and Articles 37 to 39 of the BAA. The SCJ does not reassess the merits – recognition may be refused only on the limited grounds of Articles 38 and 39, such as:

• the invalidity of the arbitration agreement;
• lack of proper notice;
• excess of mandate;
• irregular constitution of the tribunal;
• a non-binding, annulled or suspended award;
• non-arbitrability; or
• violation of Brazilian public policy.

Once granted, enforcement takes place before the competent federal court.

An award set aside at the seat may, as a rule, have recognition refused in Brazil under Article 38, VI of the BAA (mirroring Article V(1)(e) of the New York Convention), on the basis that a decision no longer binding in its country of origin should not produce effects in Brazil. Where set-aside proceedings are still pending at the seat, the SCJ may stay the recognition proceedings pending the outcome, and may condition this on the provision of suitable security, consistent with Article VI of the New York Convention. 

As to sovereign immunity, a distinction must be drawn between immunity from jurisdiction and immunity from execution. Brazilian courts do not recognise immunity from jurisdiction in respect of acts of a private or commercial nature (jure gestionis), as opposed to sovereign acts (jure imperii); commercial arbitration typically concerns the former, and a state’s agreement to arbitrate reinforces the position that immunity from jurisdiction does not bar recognition.

Immunity from execution is more robust. Enforcement may reach only assets that are not earmarked for public or sovereign purposes; assets allocated to diplomatic or consular functions are protected under the 1961 and 1963 Vienna Conventions and cannot be attached. A state may therefore raise immunity more successfully at the enforcement stage (and specifically as regards protected assets) than at the recognition stage.

Where enforcement is sought against Brazilian public entities, public assets are unseizable and payment follows the constitutional court-ordered payment (precatório) regime under Article 100 of the Federal Constitution.

Brazilian courts generally adopt a pro-enforcement approach to arbitral awards. Domestic awards are directly enforceable as judicial enforcement titles, while foreign awards must first be recognised by the SCJ before enforcement in Brazil.

In recognition proceedings, the SCJ does not review the merits of the award. Its analysis is limited to formal requirements and to the restricted grounds for refusal under the New York Convention and Articles 38 and 39 of the BAA. Public policy operates as an exceptional ground and is interpreted narrowly: recognition will be refused only where there is a clear incompatibility with fundamental principles of the Brazilian legal order. Mere errors of fact or law, or disagreement with the tribunal’s reasoning, are not sufficient.

A leading example is the Abengoa case (SEC 9,412/EX, Corte Especial, 2017), in which the SCJ refused recognition on public policy grounds after finding that the presiding arbitrator’s impartiality and independence were compromised – his law firm had received substantial fees from the requesting group during the arbitration, in breach of the duty of disclosure – the Court holding that the arbitrator’s impartiality is a matter of public policy and that it may examine regardless of the position taken by the courts at the seat.

As to the applicable standard, Brazilian courts refer in this context to international public policy, which is a narrower standard than domestic public policy. As a result, only values regarded as truly fundamental and incompatible with the Brazilian legal order will bar recognition, rather than every mandatory rule of domestic law.

Brazilian law does not provide for class action arbitration comparable to the US model. A distinction should be drawn, however, between class arbitration and multiparty arbitration. Multiparty arbitration is admitted and common in Brazil. A significant example arises in corporate disputes: under Article 136-A of the Corporations Act (Law No 6,404/1976, as amended by Law No 13,129/2015), an arbitration clause inserted into a company’s by-laws binds all shareholders, subject to the dissenting shareholders’ right of withdrawal. This is the closest mechanism to collective arbitration in Brazil, although it operates through multiparty proceedings rather than as class arbitration.

There are no rules or ethical codes exclusively governing the conduct of counsel in arbitration in Brazil. Both arbitrators and counsel are, however, subject to general ethical and professional standards, which may be reinforced by soft-law instruments.

Arbitrators are governed by the BAA (in particular, Articles 13 and 17), and may additionally be bound by the codes of conduct and ethical rules of the institution administering the proceedings.

Brazilian lawyers are bound by the rules of the Brazilian Bar Association (OAB), namely the Statute of Advocacy (Law No 8,906/1994) and the OAB Code of Ethics and Discipline. These apply to Brazilian lawyers acting in arbitration, whether seated in Brazil or abroad, since the obligation follows the enrolled lawyer. Foreign lawyers are not subject to the OAB rules; their conduct is instead governed by the applicable institutional rules, the procedural framework and the rules of their own bar.

In international arbitration, the conduct of counsel is also frequently guided by soft-law instruments, in particular the IBA Guidelines on Party Representation in International Arbitration, and some institutions have their own codes of conduct applicable to participants in the proceedings.

Brazilian law does not expressly regulate or prohibit third-party funding in judicial or arbitral proceedings. Third-party funding is therefore generally permitted, subject to general principles such as good faith, transparency, party autonomy and freedom of contract.

There is no statutory disclosure obligation. In arbitration, however, the existence of a funding arrangement may need to be disclosed under institutional rules or established practice, mainly to allow conflicts of interest between arbitrators and funders to be assessed. Some Brazilian institutions already address the matter, providing for the disclosure of third-party funding precisely for that purpose. This is consistent with international best practice, including the IBA Guidelines on Conflicts of Interest in International Arbitration, under which the funder may be treated as bearing the identity of the funded party for conflict-checking purposes.

The BAA does not contain a general rule on the consolidation of separate arbitral proceedings. Consolidation therefore depends primarily on party consent, the arbitration agreements and the rules chosen by the parties.

In practice, consolidation may be possible where:

• the parties have agreed to it;
• the relevant arbitration agreements are compatible;
• the proceedings arise from the same legal relationship or related contracts;
• the claims involve common factual or legal issues; or
• the applicable institutional rules so authorise.

Several arbitral institutions active in Brazil regulate consolidation in their rules, including the CAM-CCBC, CAM-B3, ICC, CBMA and CAMARB. Depending on the applicable rules, consolidation may be decided by the institution, by the president of the chamber or by the arbitral tribunal.

In a case concerning two related arbitrations before the CAM-B3, the São Paulo Court of Justice held that it is not for the judiciary to order the joinder of related arbitrations for joint decision. Since the applicable rules provided consolidation as a mere faculty of the chamber’s president, and the parties had bound themselves to those rules, the court upheld the president’s discretionary refusal to consolidate, as a consequence of the negative effect of kompetenz-kompetenz (Civil Appeal No 1031861-80.2020.8.26.0100, 1st Reserved Chamber of Business Law, Rel Des Cesar Ciampolini, judgment of 30 June 2021).

As a rule, an arbitration agreement and the resulting award bind only the parties and their successors (Article 31 of the BAA). In principle, third parties who did not consent to arbitration are not bound. Exceptionally, as noted previously, a non-signatory may be bound by the arbitration agreement where there is a basis to infer consent or otherwise to bind the third party.

As to the ability to bind foreign third parties, this is a matter for the state courts rather than the arbitrators. Brazilian courts may exercise jurisdiction over foreign parties within the limits of the rules on international jurisdiction (Articles 21 to 23 of the CCP). However, reaching persons or assets located abroad depends on international judicial co-operation and on the limits of sovereignty, such that the practical ability to bind a foreign third party is constrained accordingly.