Upload
sybil
View
49
Download
0
Embed Size (px)
DESCRIPTION
BRAZIL AMERICAN CHAMBER OF COMMERCE Brazil: Investment Opportunities and International Arbitration New York, April 15th, 2010. Fernando Eduardo Serec TozziniFreire Advogados R. Borges Lagoa ,1328 04038-904 - São Paulo, SP - Brazil Tel: (55 11) 5086-5230 Fax: (55 11) 5086-5555 - PowerPoint PPT Presentation
Citation preview
BRAZIL AMERICAN CHAMBER OF COMMERCE
Brazil: Investment Opportunities and International Arbitration
New York, April 15th, 2010
Fernando Eduardo SerecTozziniFreire AdvogadosR. Borges Lagoa ,1328
04038-904 - São Paulo, SP - BrazilTel: (55 11) 5086-5230 Fax: (55 11) 5086-5555
E-mail: [email protected]
Informações Confidenciais de Propriedade de TozziniFreire Advogados
What an IPAD and Brazil have in common?
Informações Confidenciais de Propriedade de TozziniFreire Advogados
Both of them have new and great features - IPAD
lLED-Backlit dDisplay
Thin and Light
Multi-Touch, Wireless, Connectivity
Informações Confidenciais de Propriedade de TozziniFreire Advogados
Both of them have new and great features - Brazil
Informações Confidenciais de Propriedade de TozziniFreire Advogados
But both still have their bugs and problemsIPAD
Do not have a USB port;
Weak Wi-Fi;
Charging Issues;
Typing headaches;
Informações Confidenciais de Propriedade de TozziniFreire Advogados
But both still have their bugs and problems - Brazil
Poor Education system;
Deficiencies in the Healthy system
Corruption;
Archaic Labor Legal System;
Crazy and Burdensome Tax System
Informações Confidenciais de Propriedade de TozziniFreire Advogados
But things are improving in Brazil…
Informações Confidenciais de Propriedade de TozziniFreire Advogados
“And, in some ways, Brazil outclasses the other BRICs. Unlike China, it is a democracy. Unlike India, it has no insurgents, no ethnic and religious conflicts nor hostile neighbors. Unlike Russia, it exports more than oil and arms, and treats foreign investors with respect.”
Things are really improving in Brazil…
and treats foreign investors with respect”.
Informações Confidenciais de Propriedade de TozziniFreire Advogados
Arbitration In Brazil
Approximately R$ 2,4 billion (US$ 1,200,000) were
disputed in local arbitrations in Brazil last year. In 2008
the amount involved was R$ 867 million. Since 2005
when CBAR started to collect such information, the local
arbitration centers and chambers have solved disputes
involving almost R$ 5 billion. (Source: CBAR – “Comitê
Brasileiro de Arbitragem”(Brazilian Arbitration
Committee)
Informações Confidenciais de Propriedade de TozziniFreire Advogados
Good Legal Framework
The Arbitration Act 1996 (Federal Law Number has been in
effect for almost 14 years, while the New York Convention on
the Recognition and Enforcement of Foreign Awards was ratified
in 2002.
Informações Confidenciais de Propriedade de TozziniFreire Advogados
Rules to be Adopted in an Arbitration
The Brazilian Arbitration Act grants the parties autonomy to
select the legal rules to govern the arbitration proceeding, which
may be conducted ad hoc or under the administration of any
domestic or international arbitration institution.
Practice shows that in Brazil the vast majority of the arbitrations
are institutional arbitrations.
Informações Confidenciais de Propriedade de TozziniFreire Advogados
Arbitration Institutions - Local
Throughout the last decade a significant number of arbitration
institutions and centers have been created or gained reputable
prestige in Brazil.
Arbitration and Mediation Centre of the Chamber of Commerce
Brazil-Canada (CCBC);
the Sao Paulo Chamber for Mediation and Arbitration;
American Chamber of Commerce in Sao Paulo
FGV Chamber of Arbitration in Rio
Informações Confidenciais de Propriedade de TozziniFreire Advogados
Arbitration Institutions - International
Recognized importance of the well-known international entities
such as:
International Court of Arbitration of the International Chamber of
Commerce (ICC)
International Centre for Dispute Resolution (ICDR);
London Court of International Arbitration (LCIA).
Informações Confidenciais de Propriedade de TozziniFreire Advogados
Language
With the exception of the 2004 Public-Private Partnership Law
and the 2005 Amendment to the Concessions Law, which
authorize arbitration in disputes between public entities and
private parties, but requires that the language of the arbitration
should be the Portuguese language, arbitral proceedings may be
conducted in any language.
Informações Confidenciais de Propriedade de TozziniFreire Advogados
Foreign and domestic awards
All awards issued within the Brazilian territory are considered to
be domestic awards irrespective of whether the underlying
dispute has an international flavor. According to the Brazilian
Arbitration Act, the domestic arbitration award is enforced
irrespective of its judicial recognition by the Brazilian courts
Informações Confidenciais de Propriedade de TozziniFreire Advogados
Enforceability of Foreign Awards in Brazil
The Brazilian Arbitration Act establishes that for an arbitration award to
be recognized and enforced in Brazil, it shall only be subject to the
confirmation proceeding before the STJ.
The application for confirmation should contain the original foreign
arbitration award or a certified copy thereof, duly notarized by the
Brazilian consulate and translated into Portuguese by a sworn translator
in Brazil, and the original agreement to arbitrate or a certified copy
thereof duly translated into Portuguese by a sworn translator.
Informações Confidenciais de Propriedade de TozziniFreire Advogados
Enforceability of Foreign Awards in Brazil
The standards regarding the enforcement of a foreign arbitration award
in Brazil are consistent with article V of the New York Convention.
According to the Brazilian Arbitration Act, the enforcement of a foreign
arbitration award can be denied only if:
the parties to the arbitration agreement lack capacity;
the arbitration agreement is invalid under the law to which the parties
agreed or the law of the place where the award was rendered;
the award exceeds the limits of the arbitration agreement;
the commencement of the arbitration proceeding was not in accordance
with the arbitration agreement;
Informações Confidenciais de Propriedade de TozziniFreire Advogados
Enforceability of Foreign Awards in Brazil
the respondent was not given proper notice of the appointment of the
arbitrator or of the arbitration proceeding or was otherwise unable to
present his or her case and was unable to exercise his or her right of
defense;
the arbitration award is not yet binding on the parties or has been
annulled or suspended by a court of the place of arbitration;
the object of the dispute is not susceptible to arbitration as a matter of
Brazilian law;
or the award violates Brazilian public policy.
Informações Confidenciais de Propriedade de TozziniFreire Advogados
Commitment of Brazil towards Arbitration
One of the most objective ways to assess the commitment of
the Brazilian legal community towards arbitration is to analyze
how the courts are supporting arbitration clauses and also how
they are enforcing arbitration awards.
Informações Confidenciais de Propriedade de TozziniFreire Advogados
Commitment of Brazil towards ArbitrationEnforcement of Arbitration Clauses
• Several decisions from the Courts in São Paulo Rio de Janeiro,
Paraná, Rio Grande do Sul and other States dismissing lawsuits
due to the existence of an arbitration clause in a written
agreement.
Informações Confidenciais de Propriedade de TozziniFreire Advogados
Commitment of Brazil towards ArbitrationHomologation of Foreign Awards,
• From 2005 to 2009 – 21 cases were reviewed by the Superior Court
of Justice:
• 17 foreign awards were recognized;
• In 4 cases homologation was denied due to following reasons:
2 cases - lack of a written arbitral agreement (2 cases)
1 case - Brazilian company involved in the case had not been
properly summoned;
1 case – Party who requested homologation was not involved in the
arbitration.