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Where the private meets the public: what to expect when
Publication arbitrating with Brazilian State entities
Revista Brasileira de Luísa Quintão
Arbitragem (1)
Even though Brazil is outside the investment arbitration system, Brazilian State entities are
now expressly allowed to submit disputes to arbitration, provided that such disputes fulfil the
Jurisdiction requirements of arbitrability under Brazilian law. This possibility may work as a means of
Brazil attracting (foreign and national) private investments to Brazil. However, commercial
arbitration involving Brazilian State entities may differ (albeit not extensively) from ordinary
disputes between private parties especially because such entities are subject to constitutional
Topics rules that must be complied with before, during and after the arbitration. This brief article
aims at analysing the main peculiarities of arbitration involving State entities in Brazil in order
Investment Arbitration to conclude that is safe for private investors to rely on commercial arbitration as an effective
dispute resolution mechanism.
Apesar de o Brasil estar fora do sistema de arbitragem de investimento, os entes da
Key words Administração Pública brasileira são agora expressamente autorizados a submeter conflitos à
Arbitragem arbitragem, contanto que tais conflitos satisfaçam os requisitos de arbitrabilidade nos termos
administração pública da lei brasileira. Essa possibilidade pode servir como meio de atrair investimentos
governo (estrangeiros e nacionais) para o Brasil. Entretanto, a arbitragem comercial envolvendo entes
entes estatais da Administração Pública brasileira pode ser distinta (apesar de não extensivamente) de
Brasil conflitos ordinários entre partes privadas, especialmente porque tais entes estão sujeitos a
normas constitucionais que devem ser observadas antes, durante e depois da arbitragem. Este
breve artigo busca analisar as principais peculiaridades da arbitragem envolvendo a
Administração Pública no Brasil a fim de concluir que é seguro aos investidores privados
Bibliographic reference confiar na arbitragem comercial como um meio efetivo de resolução de conflitos.
Luísa Quintão, 'Where the
private meets the public: 1 Introduction
what to expect when
arbitrating with Brazilian Only recently, in mid-2015, did Brazilian State entities become generically and explicitly
State entities', in João Bosco P 7 authorized by law to submit disputes concerning “disposable economic rights” (1) to arbitration,
Lee and Daniel de Andrade P 8 with the enactment of Law 13.129/2015. Said law added (alongside with other amendments)
Levy (eds), Revista Brasileira the text of paragraph 1 to article 1 of the Brazilian Arbitration Act (Law 9.307/1996), which reads
de Arbitragem, (© Comitê as follows: “the direct and indirect Government may use arbitration to resolve conflicts
Brasileiro de Arbitragem CBAr relating to disposable economic rights” (2) .
& IOB; Kluwer Law However, the express provision concerning State entities in the Brazilian Arbitration Act by
International 2017, Volume XIV itself was not that innovative (but its broad and generic application was). Years before that
Issue 56) pp. 7 - 22 provision was enacted several sectoral laws had already provided for arbitration as a possible
dispute resolution mechanism to some government contracts, such as the Ports Act (2013) (3)
and the general laws on public concessions (2005) (4) and public-private partnerships – PPPs
(2004) (5) . There are even specific cases of disputes within the energy trade sector which have
been considered to be mandatorily subject to arbitration (6) .
For years, Brazilian court decisions had been moving towards an arbitration-friendly approach
with regard to Government contracts (7) and thus legislation started developing accordingly.
Further, the express provision of article 1, paragraph 1, of the Brazilian Arbitration Act has
come to openly extend the authorization to arbitrate to all Brazilian State entities and to
settle any controversies concerning the subjective arbitrability of such entities.
Even though few Brazilian scholars still understand that allowing State entities to resolve
conflicts through arbitration would be unconstitutional (and thus so would be the 2015
amendments to the Brazilian Arbitration Act) (8) , this is a minority position. Ever since the
legislative reform took place in 2015, this has not been deemed as a controversial issue (9) – or
at least it should not be.
P8
P9
In the international context, the provision of arbitration as a possible means of resolving
conflicts may be one of the main features of investment protection usually granted through
Bilateral Investment Treaties – BITs (10) , since “[i]t grants innumerable present and future
investors the right to arbitrate a wide range of grievances arising from the actions of a large
number of public authorities”, regardless of the conclusion of a specific contract between the
State entity and the private party (11) .
Brazil has not yet made such an extensive offer to arbitrate (one that encompasses
undetermined investors and authorities), but recent enactments have indicated steps towards
broadening the possibility of arbitration for private investors within specific sectors (12) .
Brazil is not a signatory to the convention that established the International Centre for
Settlement of Investment Disputes – the ICSID Convention (Washington, 1985) nor has it ratified

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any BIT providing for investor-State arbitration (13) .
P 9 Yet, as one of the largest emerging-markets in the world, Brazil still constantly hosts foreign
P 10 investments. But the fact that the country is outside the investment arbitration system –
where an investor may claim substantive rights arising out of a BIT, such as those relating to
provisions concerning fair and equitable treatment (FET), full protection and security, national
treatment and most favoured nation (MFN) treatment (14) , i.e. treaty claims – narrows the
Brazilian State experience in arbitration against private investors exclusively to commercial
arbitration (generally due to arbitration clauses in government contracts, even though the
Government may also submit to arbitration by concluding submission agreements) (15) – where
the private investor may mainly claim rights arising out of the specific contractual relationship
it has with the Government (16) , i.e. contract claims.
Fortunately, the Brazilian experience with arbitration involving State entities has been
increasingly successful (17) and granting private investors the possibility to arbitrate will
hopefully grow to be (if it is not already) one of the main ways of attracting private investments
to Brazil (18) , regardless of the fact that the disputes against Brazilian State entities that
private investors may submit to the jurisdiction of arbitral tribunals are of a different nature
(mostly limited to the specific Government contract) than those encompassed by investment
treaty arbitration provisions (disputes relating to the framework of protection set out by an
international treaty) (19) .
This is not an extensive and detailed study on arbitration involving State entities in Brazil. The
brief notes that follow have been merely designed to inform anyone (but especially foreign
investors) that may be involved in commercial arbitration with Brazilian State entities (as well
as their attorneys) about some of the peculiarities that they may face throughout (or even
before) such proceedings.
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2 Arbitrability: When is it Possible to Arbitrate Against Brazilian State


Entities?
As briefly introduced above, the Brazilian Arbitration Act provides for a general authorization
to Government entities to submit disputes to arbitration, provided such disputes are
arbitrable. There is no restriction or specification as to which entities would be allowed to
have conflicts resolved through arbitration.
On the contrary, the provision broadens its application as it refers generically to both direct
and indirect Government (20) entities under no further condition or requirement. Thus, the only
possible conclusion to be drawn is that all Government entities, regardless of their specific
nature or applicable legal regime (21) , are allowed to conclude arbitration agreements. There
is no restriction concerning the subjective arbitrability of such entities.
The remaining task would be merely to assess whether a given dispute arising from a
relationship with a Brazilian Government entity (assuming there is a valid arbitration
agreement with unlimited scope in force) (22) would be subject to arbitration in light of its
subject-matter: i.e. an assessment of the objective arbitrability would be required.
Generally, though, such assessment would be no different from that of a regular commercial
dispute between private parties, meaning, it should follow the general requirement of article 1
of the Brazilian Arbitration Act, which head reads that “those who are legally capable of
entering into contracts may use of arbitration to resolve conflicts regarding disposable
economic rights” (23) . Paragraph 1 of such article reinforces the requirement that the conflicts
must relate to disposable economic rights when it openly authorizes Government entities to
arbitrate.
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The expression (disposable economic rights) should be interpreted as to encompass rights that
can be freely exercised by their holder with no mandatory law imposing their performance
(subject to the annulment of the act if otherwise provided by law). They are the rights that can
be freely waived or transferred and which holders are entitled to negotiate (24) . In Brazil, for
example, labour and employment law (25) , as well as family law rights, have been generally
deemed as outside the scope of the head of article 1 (Brazilian Arbitration Act) under the
understanding that such rights would not be disposable – they would be non-waivable (26) .
In a quite practical way, both Decree 8.465/2015 (that governs arbitration within the ports
sector) and Law 13.448/2017 (which set general guidelines for extension and retendering of
government contracts within Brazil's Federal Government Investment Partnership Program –
PPI – established by Law 13.334/2016), provided a list of cases that would be considered as
disposable economic rights for the purposes of such laws.
For example, under Law 13.448/2017 (which encompasses sectors such as highways, railways
and airports) (27) , the following are considered as disposable economic rights (subject-matters
capable of being settled by arbitration): (1) issues relating to the reestablishment of the
economic and financial balance of the contracts; (2) calculation of compensations resulting
from the termination or transfer of concession contracts; and (3) non-compliance with
contractual terms by any of the parties (28) . However, this list seems to be illustrative rather
than exhaustive and in any case its application would be limited to PPI agreements.
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Thus, since it is undisputed that the Government can hold disposable economic rights
regardless of its public nature (29) , the assessment is limited to whether, in the specific case,
the dispute to be submitted to arbitration, in fact, concerns a right of such kind.

3 What could be Different in Arbitration Involving Brazilian State Entities?


Even before the effective commencement of an arbitration, some situations may differ from an
ordinary contractual relationship between private parties, including when it comes to deciding
the appropriate means of dispute resolution for a given relationship with a given State entity
(if arbitration would be a choice or not).
Nevertheless, commercial arbitrations involving Brazilian State entities are largely similar to
regular commercial arbitrations between private parties. However, it should be taken into
account that all Government entities are constitutionally bound to the principles of legality,
impersonality, morality, publicity and efficiency as well as to other requirements set forth by
article 37 of the Brazilian Constitution (30) .
Therefore, sometimes standard proceedings set by institutional rules may be tailored or
adapted in view of the Government's duty to comply with constitutional principles (31) . In
other words, there must be compatibility between the guiding principles of Brazilian
Administrative Law and the arbitration when Brazilian State entities are involved (32) .

3.1 Agreeing to arbitrate with someone who is subject to monitoring and control
In Brazil, all acts by the Government must be reasoned by (substantiated with) facts and law,
P 13 otherwise they will be deemed illegitimate and will be subject to annulment (33) . In fact, the
P 14 Government “must annul its own acts, when they are tainted by a defect of illegality, and
may revoke them for reasons of convenience or opportunity (34) , being subject to internal and
external monitoring and control. Thus, when a Brazilian State entity chooses to sign an
arbitration agreement, such decision should be motivated (reasoned), subject to annulment of
the respective Government act.
Brazilian public entities' expenses are also subject to control by courts of accounts (35) at all
levels (federal, state and municipal). At the federal level, for example, the Federal Court of
Accounts (Tribunal de Contas da União) has powers to control “accounts, finances, budget,
operations and property of the Union and of the agencies of the direct and indirect
administration, as to lawfulness, legitimacy, economic efficiency, application of subsidies and
waiver of revenues” (36) .
It should be noted that the decisions rendered by courts of accounts are not of a jurisdictional
nature and they are subject to review by the Government's judicial branch (37) . However, such
decisions may have technical and administrative implications in Government entities'
activities (even if they are later reversed).
The signing of an arbitration agreement itself may have effects on a Government entity's
accounts (38) . In addition, the (non) compliance with an arbitral award may also be subject to
control by the courts of accounts, especially because the decision to (not) comply with the
award may have a direct implication on how much that award will effectively cost the
Government and thus, affect the public treasury (39) . The same applies to compliance with the
arbitration agreement.
Further, for example, if public bidding documents for procurement of a given contract by the
Government contain a contract draft providing for arbitration as the applicable dispute
resolution mechanism, this will be analysed by the competent and court of accounts (as well as
P 14 by the internal body), which can approve such choice or recommend otherwise, since it is
P 15 competent to control the Government's acts within the exercise of the rights provided under
the Brazilian Arbitration Act (40) .

3.2 Making sure the arbitration agreement will be easily enforced


An arbitration agreement that is not immediately enforceable against the opposing party may
cause struggle to those who wish to resolve conflicts promptly. In other words, typically
efficient proceedings may suffer delays if the party seeking to submit disputes to arbitration
have to go through potentially (probably) slow court proceedings just to have them enforced
against the other party.
First, private parties that intend to conclude arbitration agreements with Brazilian State
entities must make sure that such agreement is signed by a competent authority. Under article
1, paragraph 2, of the Brazilian Arbitration Act: “the authority or direct Government entity that
is competent to conclude arbitration agreements is the same as the one competent to sign
agreements and settlements” (41) . Second, parties should beware of potential restrictions
provided by law concerning, for example, the seat of arbitration, the applicable law or the
language of the arbitration.
What could also make private parties' lives easier and avoid unfounded challenges to the
arbitration by State entities is a carefully drafted and detailed arbitration clause that enables
immediate enforcement. However, such clauses are usually drafted unilaterally by the State
entity accordingly to the contract draft provided in bidding documents that commonly

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precede the conclusion of Government contracts in general and in such cases the private party
may have no say in the wording of the arbitration clause. Nonetheless, there is no restriction to
the conclusion of a submission agreement or to the inclusion of an arbitration clause in an
existing contract through a contractual amendment (42) . In the latter cases, it may be easier
for the private party to negotiate the terms of the arbitration agreement.
Undetailed arbitration clauses may render arbitration agreements unenforceable and thus
they may require private parties to file a specific motion under article 7 of the Brazilian
P 15 Arbitration Act in order to fill the gaps of an undetailed arbitration agreement, specifically
P 16 when State entities are resistant and object to the initiation of arbitration (43) . This may
cause an undesired delay in getting the conflict resolved.

3.3 Choosing arbitrators and an arbitral institution: without a bidding, but


impersonally
One of the main advantages that are inherent to the great extension of party autonomy in
arbitration is certainly the freedom to choose the decision-makers – the arbitrators (44) .
And what does that have to do with public biddings? (45) It is true that, generally, in Brazil,
contracts procured by State entities must be preceded by public biddings (46) conducted
under objective requirements set by Law 8.666/1993 (general law on Brazilian public
procurement) (47) . Yet, such provisions have simply no effect on the choice of an arbitral
institution or arbitrators by the Government.
That is because in the appointment of arbitrators and in the selection of an arbitral institution
there would not be a contract within the meaning and for the purposes of public procurement
laws and regulations. Arbitrators and arbitral institutions would not be rendering services to
the parties involved in the conflict within the meaning of contracting services under Law
8.666/1993 – rather, the choice of an arbitral institution and the appointment of arbitrators
would mean a unilateral Government act performed within the exercise of a discretionary
power (48) . Thus, general public procurement regulations (and the regime set by Law
8.666/1993) would not even be applicable to the case.
Moreover, even if one could conclude that there is a contractual relationship between the
P 16 Government and the arbitrators or between the Government and arbitral institutions for the
P 17 purposes of Law 8.666/1993, a public bidding would still not be required under such law. In
the rare case one finds that these are contracts, such contracts would fall within the case of
non-requirement of public bidding due to the arbitrators and arbitral institutions' manifested
expertise and specialization under article 25, section II, of Law 8.666/1993 (49) .
Having settled the issue concerning (not applicable) rules of public procurement, in any case,
regardless of the nature of the parties involved in the arbitration (regardless of there being
State entities or not), the arbitrators (party-appointed or not) shall be impartial and
independent and remain as such throughout the entire proceedings (50) .
However, specifically when Brazilian State entities are involved, the technical criteria adopted
by the Government in the choice of arbitrators should be made clear by the government
officials involved in the decision (for their own sake) in order to avoid future challenges
concerning their duty to comply with the principles of morality and impersonality. The same
rationale applies to the choice of the arbitral institution.
In order to prove such compliance, the moral and impersonal decision should be supported by
documents proving the appointed arbitrators' (or chosen arbitral institution) expertise and
experience, for example (51) . Such evidence may avoid potential sanctions by the competent
courts to the officials involved in the decision as well as measures against the State entity to
which they are affiliated by the competent court of accounts.

3.4 Bearing the costs: someone may have to advance them (and it is not the
Government)
Considering Brazilian government (public) expenses are subject to budgetary limits, issues
concerning payment of arbitration costs when their State entities are involved are not unusual
(52) .
So far there is no one size fits all solution expressly provided by law. However, some specific
P 17 statutes have solved the problem by providing that the private party involved in the conflict
P 18 shall advance the costs, such as the Ports arbitration regulations (53) and PPI (which
encompasses highways, railways and airports) regulations (54) .
At a lower level of Government, a law enacted by the State of Minas Gerais provides that in
arbitrations in which the State is a party, the costs shall be advanced by the private party
when the arbitration is initiated (55) .
A contractual solution is also possible. For example, when signing a PPP agreement for the
construction of a highway, the State of Paraná submitted to an arbitration agreement that
provided that in the event a dispute arose and it was to be resolved through arbitral
proceedings, the costs of the arbitration would have to be advanced by the private partner
(56) .

3.5 Complying with publicity in typically confidential proceedings

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The confidentiality of proceedings seems to be the rule in commercial arbitration, even though
in regular disputes between private parties they “are of course free to agree that their arbitral
proceedings (or the awards) will be public” (57) .
However, when it comes to State entities this is no longer an option, but rather a duty in light
of the guiding principles of Brazilian Administrative Law (58) . The constitutional principle of
publicity was also given special attention by the 2015 amendments to the Brazilian Arbitration
Act. Article 2 was complemented by its paragraph 3, which provides that arbitration that
involves State entities will be subject to publicity.
The burden to comply with such principle should be on the Government (59) – and not on the
arbitral institution or on the private party (60) – since it is the one on which the duty of
publicity is imposed by the Brazilian Constitution (61) .
P 18 Authorities have suggested that a feasible way to comply with publicity standards at least with
P 19 relation to concession agreements would be making the arbitral decisions available to the
public and keeping the hearings and documents submitted in the arbitration confidential (62) .
It would be unreasonable to conclude that hearings that take place at private properties,
including at the arbitral institution's (a private entity) offices would have to be open to the
public, or that the arbitral institution would be responsible for making documents relating to
the arbitral proceedings available to third parties in the same way as court proceedings,
considering they are not the one who has the duty of publicity under the Brazilian Constitution
and the Brazilian Arbitration Act. This is in line with the fact that the principle of publicity may
be mitigated in arbitration if arbitrators find it appropriate (63) .
As a leading arbitral institution in Brazil, the Center for Arbitration and Mediation of the
Chamber of Commerce Brazil-Canada (CAM-CCBC) has innovatively issued regulations
concerning the issue. Amongst other provisions, they determine that in arbitrations involving
direct Government entities the terms of reference shall provide for the specific information
and documents that will be subject to publicity as well as the means for making them
available to third parties (64) . They also determine that CAM-CCBC may inform third parties
about the existence of arbitrations involving entities of the direct Government, even by making
available on their website the list of proceedings of such kind (65) .
The solution found by CAM-CCBC seems adequate, since third parties would have means of
knowing about the existence of proceedings involving the Government and, if they wish, they
may request the respective entity directly to have access to the information as they believe to
be entitled to.

3.6 Rendering an enforceable award: the prohibition of arbitration in equity


In Brazil, within regular commercial disputes between private parties, the latter may agree
that the arbitration will be in equity under article 2 of the Brazilian Arbitration Act, even
P 19 though such option is rarely used (66) . However, the 2015 amendments to the Brazilian
P 20 Arbitration Act brought an express rule regarding applicable law to disputes involving State
entities, which is precisely that decisions in equity are forbidden in such cases (67) .
On the other hand, it is commonly accepted that in cases involving Brazilian State entities
arbitrators may base their decisions on international rules of commerce as well as on usages
and practices within specific markets (68) . That also means that the application of soft law
should not be considered grounds for challenging an arbitral award. Likewise, there is no
restriction concerning the application of foreign law to international contracts concluded by
the Brazilian Government when the law does not provide otherwise.
Parties should also make sure that arbitrators comply with potential restrictions provided by
law concerning, for example, the seat of arbitration, the applicable law or the language of the
arbitration.

3.7 Seeing the results: enforcement of the award


Especially when issues of sovereign immunity may be of concern to private (mainly foreign)
investors (69) , “one of the first questions posed to their counsel by clients considering the
initiation of an arbitration proceeding against a sovereign state is whether and how the
resulting award can be enforced” (70) .
In Brazil, in spite of the time that it may consume, enforcing an arbitral award against the
Government tend to be fairly simple and immunity should not be of concern. More
importantly, compliance by State entities incorporated under public law (such as direct
Government entities and independent governmental agencies) (71) is subject to a specific
constitutional procedure (72) .
P 20 If the arbitral award rendered against a Brazilian State entity is foreign (i.e. if it was rendered
P 21 outside the Brazilian territory) (73) , the private party seeking its enforcement in Brazil (74)
should first have it recognized by the Superior Court of Justice (STJ) (75) . Brazil is a signatory to
the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the
New York Convention) (76) and, therefore, there should be no difficulties in getting an award
recognized and further enforced by Brazilian State courts, subject to the conditions set by the
New York Convention itself (77) and to the procedure for recognition of foreign judgements set
by STJ Internal Rules (78) .

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However, private parties that wish to arbitrate with Brazilian Government entities
incorporated under public law (even though they are not immune to enforcement in the
Brazilian territory) should bear in mind that arbitral awards (which are equivalent to court
judgements in Brazil) (79) – both foreign (after recognition) and national – against such entities
are still subject to the provisions of article 100 of the Brazilian Constitution, whose head
determines that “[p]ayments owed by the federal, State, Federal District, or Municipal
treasuries, by virtue of a court decision, shall be made exclusively in chronological order of
submission of court orders and charged to the respective credits, it being forbidden to
designate cases or persons in the budgetary appropriations and in the additional credits
opened for such purpose” (80) .
Thus, in practice, voluntary compliance with an arbitral award by Brazilian State entities
incorporated under public law would be limited to them not challenging the procedure of
P 21 compliance with judgements (as well as arbitral awards) set by article 535 of the Brazilian Code
P 22 of Civil Procedure, since the Government is prohibited to immediately and voluntarily
comply with the award in view of the order set by article 100 of the Brazilian Constitution.
On the other hand, such peculiar procedure does not apply to State entities incorporated
under private law, and thus in these cases the enforcement of the award should follow the
standard civil procedure for compliance with judgements (as well as with arbitral awards) and
enforcement of such under article 524 of the Brazilian Code of Civil Procedure.

4 Conclusion
Brazilian “case law” and legislation have positively developed to the point that the possibility
of State entities submitting disputes to arbitration is now finally undisputed. In this scenario,
such possibility may attract private investments, as the consent to submit to the jurisdiction of
a neutral dispute resolution forum (an arbitral tribunal) may be considered as a protection to
the investor (foreign or national), who may fear biased decisions by State courts.
From what we have seen, the peculiarities of arbitrations involving State entities in Brazil are
of a minor nature and they are mostly related to the constitutional guiding principles of
Brazilian Administrative Law. The issues arising from such peculiarities seem all to have
solutions in theory and the challenges that arise in practice are also practically solvable.
Carefully drafted arbitration agreements and a cautious assessment of objective arbitrability
for example, are safe moves that may be adopted by private investors in order to avoid
discussions prior to the commencement of arbitration against a State entity. Private parties
should also be prepared to bear the costs relating to the arbitration at least temporarily and
they must be tolerant towards the fact that some information concerning the dispute in
arbitration may be made available to third parties in specific cases.
In a nutshell, in a country (1) which is a New York Convention jurisdiction, (2) in which
arbitrators are equivalent to State judges, (3) where arbitral awards have the same effects as
court judgements, (4) where State entities are legally authorized to arbitrate subject solely to
minor peculiarities and (5) where enforcement of both arbitration agreements are arbitral
awards can be fairly obtained through clearly set proceedings, both foreign and national
private investors should not fear relying on commercial arbitration (including due to the
absence of investment arbitration) to resolve conflicts arising from contractual relationships
with the Brazilian Government and its entities. On the contrary, it should be seen as the best
solution to avoid bureaucratic and potentially slow proceedings before State courts conducted
by State-related decision-makers.
P 22

References
1) Luísa Quintão (*) : Associate lawyer at Justen, Pereira, Oliveira & Talamini (São Paulo).
Master's candidate at the Pontifical Catholic University of São Paulo (PUC-SP) in the Law
and International Economic Relations Program.
*) The author would like to thank Aurora Kitko and Camila Simão for their valuable
contributions to this article.
1) The operative phrase in Portuguese is “direitos patrimoniais disponíveis”. There are many
possible translations of this phrase, such as “freely transferable property rights”, “waivable
economic rights” or others. The breadth of the phrase in Portuguese is comprehensive and
may comprise rights that the parties may freely waive, transfer, dispose of or decide
about, depending on the point of view. Therefore, the author opted to translate it here as
disposable or non-disposable rights. This is a general requirement of objective arbitrability
in Brazil. For a general overview of arbitration in Brazil, see WLADECK, Felipe. AMARAL,
Paulo. “Arbitration in Brazil” in JUSTEN FILHO, Marçal et al. Brazil Infrastructure Law.
International Commerce & Arbitration Series. Vol. 20. Eleven International Publishing,
2016. pp. 427-443.
2) Free translation.

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3) Law 12.815/2013. Arbitration under the Ports Act was further regulated by Decree 8.465 in
2015, which set forth specific requirements for arbitration within the ports sector. For a
practical analysis of ports arbitration under Decree 8.465, see PEREIRA, Cesar. “Arbitragem
no Setor Portuário: o Decreto 8.465 e sua aplicação prática” in PEREIRA, Cesar et al. Direito
Portuário Brasileiro. São Paulo: Marcial Pons, 2015. pp. 577-590.
4) Law 8.987/1995 with the 2005 amendments (Law 11.196/2005).
5) Law 11.079/2004.
6) According to ANEEL (Brazilian Electricity Regulatory Agency) Resolution n° 109/2004,
conflicts between agents affiliated to the Electric Energy Trading Chamber – CCEE (an
entity created by Law 10.848/2004) must resolved through For an extensive work on energy
arbitration in Brazil, see RIBEIRO, Diogo Albaneze Gomes. Arbitragem no Setor de Energia
Elétrica. São Paulo: Editora Almedina, 2017.
7) For an “Analysis of Decisions Involving State-Owned Entities” see GOMM SANTOS, Maurício.
SMITH, Quinn. “Brazil in the Context of International Arbitration” in JUSTEN FILHO, Marçal
et al. Brazil Infrastructure Law. International Commerce & Arbitration Series. Vol. 20.
Eleven International Publishing, 2016. pp. 445-460, section 26.3.2. See also PEREIRA, Cesar.
“Arbitragem e Administração Pública na jurisprudência do TCU e do STJ” in PEREIRA, Cesar
et al (Eds.). Arbitragem e Poder Público. São Paulo: Saraiva, 2010. pp. 131-149.
8) See MARTINS, Ricardo Marcondes. “Arbitragem e Administração Pública: contribuição para
o sepultamento do tema” in Revista Trimestral de Direito Público. Vol. 54. São Paulo:
Malheiros, 2011. pp. 194-209. Accordingly, see BANDEIRA DE MELLO, Celso Antônio. Curso de
Direito Administrativo. 32nd Edn. São Paulo: Malheiros, 2015. p. 812. Such scholars argue
that disputes arising out of government contracts would necessarily relate to non-waivable
rights that cannot be submitted (due to their nature) to the jurisdiction of private
individuals (such as arbitrators) under the Brazilian Constitution, which would mean a case
of non-arbitrability.
9) RAMOS, Caio Pazinato Gregório. SIMÃO, Camila Macedo. ZANELATO, Thiago Del Pozzo.
“Arbitragem e Direitos Transindividuais” in INOVARB. Repositório de Artigos. June 2017.
Available at http://www.amcham.com.br/repositoriodearquivos/arbitragem-direitos-
transindividuais-inovarb.pdf (accessed on 26 August 2017).
10) Consent to investment arbitration by States may be mainly manifested (1) in BITs (or
multilateral investment treaties, such as the Energy Carter Treaty – ECT – and the North
American Free Trade Agreement – NAFTA) concluded between States (which commonly
provide for a “blind” offer to arbitrate with present and future investors from the other
State), but also (2) in investor-State contracts (a proper and express arbitration
agreement), as well as through (3) national investment legislation (that would mean an
even “blinder” unilateral undertaking by the host State). See MBENGUE, Makane Moïse.
“Consent to Arbitration Through National Investment Legislation” in IISD. Investment Treaty
News. 9 July 2012. Available at https://www.iisd.org/itn/2012/07/19/consent-to-arbitration-
through-national-investment-legislation/ (accessed on 26 August 2017). The author
explains that “ [i]nvestor-to-state arbitration is subject to consent, which traditionally
emanates from a preexisting agreement. That agreement often takes the form of a treaty
between the host state and the state of nationality of the foreign investor. It can also be
shaped as a contract between the host state and a foreign investor. In contrast, when given
through foreign investment legislations, consent to investment arbitration does not involve
an agreement between two states or between a state and a foreign investor. Rather,
consent to arbitration proceeds from a unilateral undertaking of the host state in its
domestic investment law(s). […] In that sense, the ‘offer to arbitrate’ made under national
investment codes is broader than the offer to arbitrate made by virtue of BITs or
investment contracts. Consent to arbitration through BITs is an offer limited to foreign
investors whose states of nationality have concluded a BIT with the host state against
which they intend to initiate arbitration proceedings. In the same vein, consent to
arbitration through investment contracts is an offer strictly limited to foreign investors
that are parties to those contracts. By contrast, consent to arbitration through national
investment legislations constitutes an offer made to the foreign investment community as
a whole with no real possibility of individualizing the scope of the offer”.
11) PAULSSON, Jan. “Arbitration without Privity” in ICSID Review. Vol. 10. Issue 2. 1995. pp. 232-
257.
12) Law 13.448/2017 resulted from the conversion into law of Provisional Measure (MP)
752/2016 and it is applicable to agreements concluded within Brazil's Federal Government
Investment Partnership Program (PPI), which encompasses highways, railways and airports.
For a brief note on the aspects concerning a potential unilateral manifestation of consent
to arbitration by Brazil's Federal Government within MP 752/2016 (now Law 13.448/2017),
see PEREIRA, Cesar. Quintão, Luísa. “Has Brazil Made a Unilateral Binding Offer to Arbitrate
in the 2016 Investment Partnership Program (PPI)?” in Kluwer Arbitration Blog. Wolters
Kluwer, 24 March 2017. Available at http://kluwerarbitrationblog.com/2017/03/24/has-
brazil-made-a-unilateral-binding-offer-to-arbitrate-... (accessed on 26 August 2017).

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13) “Brazil, as the world's ninth largest economy, remained a major investment destination
despite not participating in the international investment regime. Indeed, while Brazil had
signed BITs in the past, none of these were ratified by Brazil, so they never came into force.
Critics often pointed to Brazil in order to argue that BITs did not increase investments but,
rather, exposed States to claims”. MUNIZ, Joaquim. DUGGAL, Kabir. PERETTI, Luis. “The New
Brazilian BIT on Cooperation and Facilitation of Investments: A New Approach in Times of
Change” in ICSID Review. Vol. 32. Issue 2. Oxford University Press, May 2017. pp. 404-417. The
authors also analyze the new scenario for BITs in Brazil under the 2015 Model Investment
Agreement, which limited the use of binding arbitration within its context to State-to-
State disputes. The template is available at
http://investmentpolicyhub.unctad.org/Download/TreatyFile/4786 (accessed on 26 August
2017).
14) See MCLACHLAN, Campbell. SHORE, Laurence. WEINIGER, Matthew. International
Investment Arbitration: substantive principles. Oxford International Arbitration Series.
Oxford University Press, 2007. p. 225.
15) See JUSTINO DE OLIVEIRA, Gustavo. “Especificidades do processo arbitral envolvendo a
Administração Pública” in Enciclopédia Jurídica da PUCSP. Tomo de Direito Administrativo
e Constitucional. 1st Edn. April 2017. Available at
https://enciclopediajuridica.pucsp.br/verbete/49/edicao-1/especificidades-do-
processo-arbitral-envol... (accessed on 26 August 2017).
16) See “Arbitration Clauses in Investment Contracts” in DUGAN, Christopher F. Dugan.
WALLACE, Don. RUBINS, Noah D. SABAHI, Borzu. Investor State Arbitration. Oxford University
Press, 2008. pp. 225-230.
17) LEMES, Selma Ferreira. “Incentivos à arbitragem na administração pública” in Valor
Econômico. 5 September 2016. Available at
http://selmalemes.adv.br/artigos/IncentivosaArbitragemnaAdministra%C3%A7%C3%A3oP
%C3%BAblica%20-2016.... (accessed on 26 August 2017).
18) See MACCRACKEN, Roberto Nussinkis. Arbitragem no Investimento Estrangeiro: segurança
jurídica. Ph.D thesis. Pontifical Catholic University of São Paulo – PUC-SP, 2014. Available at
https://tede2.pucsp.br/bitstream/handle/6646/1/Roberto%20Nussinkis%20Mac%20Crack
en.pdf (accessed on 26 August 2017).
19) BARBOSA, Daniel. MARTINI, Pedro. “Two Sides of the Same Coin: To What Extent is
Arbitration with the Brazilian Administration Similar to Investment-Treaty Arbitration?” in
LEVY, Daniel de Andrade et al. Investment Protection in Brazil. Wolters Kluwer, 2013. pp. 37-
59.
20) Article 4 of Decree-Law 200/1967 divides the Government into two parts: direct (article 4,
section I) and indirect (article 4, section II) Government. The latter are further defined by
article 5 of the same Decree-Law. “Public administration in Brazil is divided between
direct and indirect. In the sphere of federal executive power, the first is composed of the
Presidency of the Republic, ministries and the special secretariats. Indirect
administration is composed of organs with their own legal identity but that carry out the
functions of the State in a decentralized manner in all spheres – federal, state, district and
municipal. Public foundations, executive agencies and regulators are some examples of
these autarchies – organs that are an integral part of indirect public administration.”
Presidency of the Republic of Brazil. “Autarchies are an integral part of inderct public
administration” in BrazilGovNews. 4 August 2016. Available at:
http://www.brazilgovnews.gov.br/federal-government/how-the-government-works/local--
authorities (accessed on 26 August 2017).
21) Some Government entities in Brazil are incorporated under private law, such as state
companies (a general definition that encompass both government owned corporations –
empresas públicas – and mixed-capital corporations – sociedades de economia mista) but
are still subject to public law regulations in specific circumstances defined by law. See
JUSTEN FILHO, Marçal. Curso de direito administrativo. São Paulo: Editora Revista dos
Tribunais, 2016. p. 159.
22) The arbitration agreement may have a limited scope. For example, in a concession
agreement between the State of Minas Gerais and Companhia Minas Arena – Gestão de
Instalações Esportivas S.A. the arbitration clause provided a list of specific cases that
would be subject to arbitration under such agreement. BRAZIL, State of Minas Gerais.
Secretaria de Estado de Planejamento de Gestão. Contrato de concessão administrativa.
Belo Horizonte, 21 dez. 2010. Available at
http://www.ppp.mg.gov.br/images/documentos/Projetos/concluidos/Mineirao/Contrato_
PPP_Mineir%C3%A3o_F.... (accessed on 26 August 2017).
23) Free translation.
24) CARMONA, Carlos Alberto. Arbitragem e Processo: um comentário à Lei n° 9.307/906. 3rd
Edn. São Paulo: Editora Atlas, 2009. p. 39.
25) The 2017 changes to the Brazilian general Labour and Employment Law provides that
labour and employment contracts in which the remuneration is higher than a certain
amount (twice the maximum limit set for benefits under the general social security
regime) may contain arbitration clauses if by the employee's initiative or provided it has
expressly consented to such provision (Law 13.467/2017 added article 507-A to the
consolidated Labour and Employment legislation – Decree-law 5.452/1943 – and the
provisions come into force in November 2017).

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26) See FRANZONI, Diego. DAVIDOFF, Fernanda. “Interpretação do critério da disponibilidade
com vistas à arbitragem envolvendo o Poder Público” in Revista de Arbitragem e Mediação.
Year 11. Vol. 41. Revista dos Tribunais. April-June 2014. pp. 243-264.
For a detailed analysis of arbitration under Law 13.448/2017 see PEREIRA, Cesar.
“Inovações na arbitragem: aeroportos, rodovias e ferrovias” in JOTA. 21 July 2017. Available
at: https://jota.info/colunas/coluna-do-justen/inovacoes-na-arbitragem-aeroportos-
rodovias-e-ferrovias-2... (accessed on 26 August 2017).
27) For a detailed analysis of arbitration under Law 13.448/2017 see PEREIRA, Cesar.
“Inovações na arbitragem: aeroportos, rodovias e ferrovias” in JOTA. 21 July 2017. Available
at: https://jota.info/colunas/coluna-do-justen/inovacoes-na-arbitragem-aeroportos-
rodovias-e-ferrovias-2... (access on 26 August 2017).
28) Those would be the most common cases of disposable economic rights hold by the
Government. Even before Law 13.448/2017 was enacted, such cases were commonly cited
as examples (see TALAMINI, Eduardo. “Arbitragem e parceria público-privada (PPP)” in
TALAMINI, Eduardo et al (Eds.). Parcerias Público-Privadas: um enfoque multidisciplinar.
São Paulo: Editora Revista dos Tribunais, 2005. pp. 240-287 and RIBEIRO, Diogo Albaneze
Gomes. “Arbitragem e Poder Público” in Revista Brasileira de Infraestrutura – RBINF. Vol. 2.
N. 3. Belo Horizonte, January/June 2013. pp. 157-188).
29) MELLO, Rafael Munhoz de. “Arbitragem e Administração Pública” in Revista Jurídica da
Procuradoria-Geral do Estado do Paraná. Vol. 6. Curitiba, 2015. pp. 47-81. In his work, in
order to draw such conclusion, the author cites the understanding of leading
Administrative Law authorities in Brazil, such as Carlos Ari Sundfeld, Jacintho Arruda
Câmara and Marçal Justen Filho.
30) BRAZIL. Federal Constitution, 1988. Article 37: “The governmental entities and entities
owned by the Government in any of the powers of the Union, the states, the Federal District
and the Municipalities shall obey the principles of lawfulness, impersonality, morality,
publicity, and efficiency, and also the following: […]”. The full text of the Brazilian Federal
Constitution is available in the English language at
http://bd.camara.gov.br/bd/bitstream/handle/bdcamara/1344/constituicao_ingles_4ed.
pdf?sequence=19 (access on 26 August 2017).
31) Some institutional rules, such as CAMFIEP's (Section V) in Brazil, may have specific
provisions applicable to proceedings in which State entities are involved. Available at
http://www.fiepr.org.br/para-empresas/camara-de-
arbitragem/uploadAddress/Regulamento_2015[67181].pdf (accessed on 26 August 2017).
32) MARTES, Marina Martins. “Arbitragem e Administração Pública: a compatibilidade, os
limites e o procedimento arbitral envolvendo o Poder Público” in Revista Brasileira de
Estudos da Função Pública – RBEFP. Vol. 5. N. 15. Belo Horizonte: Editora Fórum,
September/December 2016. pp. 213-245.
33) BANDEIRA DE MELLO, Celso Antônio. Curso de Direito Administrativo. 32nd Edn. São Paulo:
Malheiros, 2015. pp. 115-116.
34) BRAZIL. Federal Administrative Procedure Act, 1999. Article 53. Free translation.
35) Brazilian courts of accounts are auditing agencies designed to assist legislative branch of
the Government. See DI PIETRO, Maria Sylvia Zanella. Direito Administrativo. 29th Edn. Rio
de Janeiro: Forense, 2016. pp. 897-899.
36) BRAZIL. Federal Constitution, 1988. Article 70. Official translation.
37) See decision by Brazil's Superior Court of Justice (STJ): REsp 1.032.732/CE, 1ª Turma, Rel.
Min. Luiz Fux, 19.11.2009.
38) For an economic analysis of the effects of arbitration agreements within business
contracts, see TIMM, Luciano Benetti. JOBIM, Eduardo. “A Arbitragem, os Contratos
Empresariais e a Interpretação Econômica do Direito” in Direito e Justiça. Vol. 33. N. 1. June
2007. pp. 80-97. Available at
http://revistaseletronicas.pucrs.br/ojs/index.php/fadir/article/download/2910/2200
(accessed on 26 August 2017).
39) In a case involving the acquisition of a refinery in Texas by a Petrobras' U.S. subsidiary –
Petrobras America Inc. – the Federal Court of Accounts discussed whether members of
Petrobras' executive board were liable for alleged damages to the public treasury
resulting from their decision to not comply with an arbitral award (see TCU, Acórdão
224/2015, Plenário, Rel. José Jorge, 11.02.2015). The case is registered under number
005.406/2013-7 and the most recent decision was rendered in 2017.
40) PEREIRA, Cesar. “Arbitragem e Administração” in Enciclopédia Jurídica da PUCSP. Tomo
Direito Administrativo e Constitucional. 1st Edn. 2017. Available at
https://enciclopediajuridica.pucsp.br/verbete/155/edicao-1/arbitragem-e-administracao
(accessed on 26 August 2017).
41) Free translation.
42) Accordingly, Law 13.448/2017 expressly allows contractual amendment for the purposes of
inserting arbitration clauses into existing contracts.

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43) In a recent case involving a Municipality (Município da Estância Turística de Itu) in the State
of São Paulo and concerning a completely vague arbitration clause that did not even
determine whether the arbitration would be ad hoc or institutional, both the lower court
(TJSP, Arbitration Agreement Action n° 1005577-98.2016.8.26.0286, Judge Fernando França
Vianna, 19.04.2017) and the appellate court of the State of São Paulo (TJSP, Interlocutory
appeal n° 2184750-50.2016.8.26.0000, Judge Coimbra Schmidt, 18.10.2016) ruled in favor of
the private party after several challenges to the arbitration agreement by the Municipal
Government. The lower court even determined that the arbitration should be institutional
before CAMARB, a leading arbitral institution in Brazil with extensive experience in
managing arbitrations concerning conflicts involving State entities.
44) QUINTÃO, Luísa. “Limites à Liberdade das Partes na Escolha de Árbitros” in FINKELSTEIN,
Cláudio (Ed.). Direito e Arbitragem. Belo Horizonte: Arraes Editores, 2016. pp. 2-44.
45) In a contrary sense, see FICHTNER, José Antonio. “A confidencialidade no projeto da nova
lei de arbitragem – PLS n° 406/2013” in ROCHA, Caio Cesar Vieira et al (Eds.). Arbitragem e
mediação: a reforma da legislação brasileira. São Paulo: Editora Atlas, 2015.
46) BRAZIL. Federal Constitution, 1988. Article 175.
47) For a leading commentary on the general Brazilian law on public biddings and
procurement, see JUSTEN FILHO, Marçal. Comentários à Lei de Licitações e Contratos
Administrativos”. 17th Ed. São Paulo: Editora Revista dos Tribunais, 2016.
48) For an extensive analysis of the relationship between parties, arbitrators and arbitral
institution for the purposes of Brazilian public procurement laws, see JUSTEN FILHO,
Marçal. “Administração Pública e Arbitragem: o vínculo com a câmara e os árbitros” in
Revista Brasileira da Advocacia – RBA. Vol. 1. São Paulo: Editora Revista dos Tribunais,
abril-junho 2016. pp. 103-150.
49) In this sense, in a recent case involving a Municipality in the State of São Paulo, see
judgement by the 3rd Civil Court of Itu (State of São Paulo) in 2017 (TJSP, Arbitration
Agreement Action n° 1005577-98.2016.8.26.0286, Judge Fernando França Vianna, 19.04.2017).
50) BIANCHINI, Gabriella Ottoboni. “Party Appointed Arbitrators: a aplicação dos princípios da
imparcialidade e da independência em procedimentos arbitrais comerciais
internacionais” in FINKELSTEIN, Cláudio (Ed.). Direito e Arbitragem. Belo Horizonte: Arraes
Editores, 2016. pp. 45-81.
51) Procuradoria Geral do Estado de São Paulo, Gabinete do Procurador Geral, Coordenadoria
de Empresas e Fundações. Parecer GPG n° 01/2015. Processo n° 16847-94457/2015.
52) MARTES, Marina Martins. “Arbitragem e Administração Pública: a compatibilidade, os
limites e o procedimento arbitral envolvendo o Poder Público” in Revista Brasileira de
Estudos da Função Pública – RBEFP. Vol. 5. N. 15. Belo Horizonte: Editora Fórum,
September/December 2016. pp. 213-245.
53) BRAZIL. Decree 8.465/2015, Article 3, section VII.
54) BRAZIL. Law 13.448/2017, Article 31, paragraph 2.
55) State of Minas Gerais. Law 19.447/2011. Article 11, sole paragraph.
56) MELLO, Rafael Munhoz de. “Arbitragem e Administração Pública” in Revista Jurídica da
Procuradoria-Geral do Estado do Paraná. Vol. 6. Curitiba, 2015. pp. 47-81.
57) BORN, Gary. International Commercial Arbitration. Kluwer Law International, 2014. p. 90.
58) BRAZIL. Federal Constitution, 1988. Article 37.
59) Centro de Estudos Judiciários do Conselho de Justiça Federal. I Jornada “Prevenção e
Solução Extrajudicial de Litígios” (August 2016), Enunciados Aprovados. Enunciado 4.
60) In this sense, CAM-CCBC president Mr. Carlos Suplicy de Figueiredo Forbes stated to Valor
Econômico on 03 February 2016: “We came to the conclusion that the publicity is not ours.
It is the parties'. So the parties have to inform CAM-CCBC how they are going to deal with
these issues”. Free translation.
61) Professor Carlos Alberto Carmona thus recommends that in arbitration involving State
entities confidentiality is moderated in order to allow the control over the public treasury.
CARMONA, Carlos Alberto. Arbitragem e Processo: um comentário à Lei n° 9.307/906. 3rd
Edn. São Paulo: Editora Atlas, 2009. p. 246.
62) LEMES, Selma. “Arbitragem na Concessão de Serviços Públicos: arbitrabilidade objetiva,
confidencialidade ou publicidade processual?” in Revisa de Direito Bancário, do Mercado
de Capitais e da Arbitragem. Vol. 6. N. 21. São Paulo, July/September 2003. pp. 387-407.
63) Centro de Estudos Judiciários do Conselho de Justiça Federal. I Jornada “Prevenção e
Solução Extrajudicial de Litígios” (August 2016), Enunciados Aprovados. Enunciado 4. See
also FRANZONI, Diego. DAVIDOFF, Fernanda. “Arbitragem nas parcerias público-privadas” in
Revista de Direito Administrativo Contemporâneo. Year 3. Vol. 18. Editora Revista dos
Tribunais, May/June 2015. pp. 13-31.
64) CAM-CCBC, Resolução n° 02/2016.
65) CAM-CCBC, Resolução n° 15/2016.
66) See JIMENEZ, Lucas Moreira. ZANELATO, Thiago Del Pozzo. “Arbitragem por equidade:
aspectos práticos e econômicos”. Paper submitted at the IX Congresso Anual da Associação
Brasileira de Direito e Economia (ABDE). October 2016.
67) BRAZIL, Law 9.307/1996 (Brazilian Arbitration Act). Article 2, paragraph 3.
68) Centro de Estudos Judiciários do Conselho de Justiça Federal. I Jornada “Prevenção e
Solução Extrajudicial de Litígios” (August 2016), Enunciados Aprovados. Enunciado 11.
69) See FOX, Hazel. “Sovereign immunity and arbitration” in Contemporary problems in
international arbitration. Spinger Netherlands, 1987. pp. 323-331.
70) BISHOP, R Doak. “The Enforcement of Arbitral Awards against Sovereigns” in BISHOP, R.
Doak (Ed.). Enforcement of Arbitral Awards against Sovereigns. JurisNet, 2009. pp. 3-12.

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71) In Brazil, an autarquia (independent governmental agency) is “classified as part of the so-
called indirect government, but holds a ‘persolity of public law’” (As per definition in the
Glossary of JUSTEN FILHO, Marçal et al. (Eds.) Brazil Infrastructure Law. International
Commerce and Arbitration Series. Vol. 20. Eleven International Publishing, 2016. p. xviii).
72) JUSTEN FILHO, Marçal. Curso de Direito Administrativo. São Paulo: Editora Revista dos
Tribunais, 2016. pp. 1229-1238
73) In Brazil, the law does not distinguish between international and domestic arbitration, but
it distinguishes between national and foreign awards. The assessment is merely territorial
(the criterion was set by article 34, sole paragraph of the Brazilian Arbitration Act),
meaning that those awards rendered outside the Brazilian territory are deemed foreign
under Brazilian law and thus they are subject to recognition proceedings before STJ. See
FINKELSTEIN, Cláudio. Direito Internacional. 2nd Edn. São Paulo: Editora Atlas, 2013. p. 166.
74) The private party may also try to enforce the award in a different country where the State
entity against which the award was rendered has assets (most likely in the territory of
other New York Convention jurisdictions), especially in those countries in which sovereign
(foreign State) immunity from enforcement can be subject to relativization under specific
laws, such as Australia (1985 Foreign States Immunities Act – FSIA), the United Kingdom
(1978 State Immunity Act – SIA) and the United States (1976 Foreign Sovereign Immunities
Act – FSIA). See MONTEIRO, Ana Sofia Cardoso. “Third Party Funding na Arbitragem contra
Estados: a relativização da imunidade executória na execução da sentença arbitral contra
estados”. Bachelor's thesis (International Relations). Brazilian Institute of Capital Markets –
Ibmec-RJ, 2017.
75) BRAZIL. Federal Constitution, 1988. Article 105, section I, sub-section i.
76) United Nations Commission on International Trade Law (UNCITRAL). Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958). Available at
http://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/New-York-Convention-
E.pdf (access on 26 August 2017).
77) The grounds for denying recognition under the New York Convention were mirrored by the
Brazilian Arbitration act in its article 38.
78) For a detailed analysis, see PEREIRA, Cesar. “Recognition of Foreign Arbitral Awards in
Brazil” in JUSTEN FILHO, Marçal et al. Brazil Infrastructure Law. International Commerce &
Arbitration Series. Vol. 20. Eleven International Publishing, 2016. pp. 461-498. The author
explains, for example: “In most cases the procedure is based on an adversarial system. The
request is filed by means of an original complaint that must observe the usual procedural
format (Art. 216-C). The interested party (i.e., the party against whom the subsequent
enforcement will be sought) must be summoned to have the opportunity to respond to the
request (Art. 216-H). If an objection to the request is filed, the case is referred to the
Special Court of the STJ – the enbanc composition of the Court – for a hearing. […] Two
important features of the Brazilian regulation of recognition of foreign judgments are the
possibility of a partial recognition of a judgment (Art. 216-A, 2nd para.) and the express
admission of interim measures in the recognition procedure (Art. 216-G)”.
79) See article 31 of the Brazilian Arbitration Act: “The arbitral award shall have the same
effect on the parties and their successors as a judgement rendered by the Judicial Branch
[…]”. The Brazilian Code of Civil procedure (Law 13.105/2015) lists arbitral awards as
judicial enforceable rights/instruments in article 515.
80) Official translation.

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