Recognition and enforcement of foreign arbitral awards in Brazil : a practitioner's guide / Leonardo de Campos Melo.

Format:

Book

Author/Creator:

Melo, Leonardo de Campos, author.

Language:

English

Subjects (All):

Arbitration and award--Brazil.

Arbitration and award.

Commercial law--Brazil.

Commercial law.

Physical Description:

1 online resource (210 pages)

Edition:

1st ed.

Place of Publication:

Alphen aan den Rijn : Wolters Kluwer Law International, [2015]

Summary:

As Brazil turns into a major player in international trade, it is inevitable that the number of foreign arbitral awards rendered against parties with assets located in that country will grow exponentially. Accordingly, it is important that successful parties in arbitration proceedings who may need to enforce awards in Brazil be aware of the local procedures for recognition and enforcement.

Contents:

Cover

Half Title Page

Title Page

Copyright Page

Dedication

About the Author

Table of Contents

Preface

Foreword

Acknowledgments

List of Abbreviations

Introduction

CHAPTER 1 General Aspects of Recognition of Foreign Arbitral Awards in Brazil

1.01 LEGAL FRAMEWORK

[A] Federal Statutory Provisions

[B] Treaty Provisions

[1] Ratification of the New York Convention and Its Interplay with the Brazilian Arbitration Act

[C] The Internal Rules of the Superior Court of Justice

[D] Summary

1.02 LIMITATION PERIOD FOR THE COMMENCEMENT OF RECOGNITION PROCEEDINGS

1.03 DURATION OF RECOGNITION PROCEEDINGS BEFORE THE SUPERIOR COURT OF JUSTICE

[A] Recognition Applications Challenged by the Respondents

[B] Recognition Applications Not Challenged by the Respondents

1.04 THE KEY IMPORTANCE OF COUNSEL ATTENTIVE CARE IN RECOGNITION PROCEEDINGS

CHAPTER 2 Recognition Proceedings before the Superior Court of Justice

2.01 THE SUPERIOR COURT OF JUSTICE

2.02 WHO DECIDES RECOGNITION PROCEEDINGS WITHIN THE SUPERIOR COURT OF JUSTICE?

2.03 THE ROLE PLAYED BY THE FEDERAL PUBLIC ATTORNEY'S OFFICE IN RECOGNITION PROCEEDINGS

2.04 STANDING

[A] Use of a Foreign Arbitral Award as Evidence in Court Proceedings in Brazil

[B] Assignment of Rights Arising Out of the Foreign Arbitral Award

[C] Merger

[D] Recognition Application by Proxy

[E] Standing Previously Asserted by the Judiciary of the Country of Origin, Whose Law Was Applied to the Merits of the Dispute

[F] Summary

2.05 FILING AND ADDRESSING THE REQUEST FOR RECOGNITION

[A] The Complaint

[B] Counsel Duly Empowered

[C] Amount in Issue. Loss of Suit Fees

[D] Is it Necessary for Foreign Applicants to Post a Bond?

[E] Confidentiality in Recognition Proceedings

2.06 EVIDENCE REQUIRED.

[A] The Foreign Arbitral Award

[1] Reasoned Award?

[2] Interlocutory, Partial and Final Awards

[B] Must the Award Be Previously Confirmed by a Court of the Seat?

[C] The Arbitration Agreement

[D] The Arbitration Rules

[E] The Contract

[F] Proof of the Arbitral Tribunal's Jurisdiction

[G] Proof That the Award Is Final

[H] Proof of Proper Notice

[I] Consular Certification. Document Translation

[J] Filing of Additional Documentation during the Course of Recognition Proceedings

[K] Summary

2.07 REQUEST DISMISSED FOR FAILURE TO FULFILL THE FORMAL REQUIREMENTS. RENEWING THE REQUEST

2.08 SERVICE OF PROCESS

2.09 DEFAULT COURT-APPOINTED CURATOR

2.10 DEFENSES

[A] The Parties to the Agreement Lacked Capacity

[B] The Arbitration Agreement Was Not Valid under the Law to Which the Parties Subjected it, or, Failing Any Indication Thereon, under the Law of the Country Where the Award Was Made

[C] The Defendant Was Not Given Proper Notice of the Appointment of the Arbitrator or of the Arbitration Proceedings, or Was Unable to Present Its Case

[D] The Arbitral Award Addresses Disputes Not Covered by the Arbitration Agreement, and it Is Not Possible to Separate the Decision on These Matters from Those Parts of the Award That Do Fall within the Scope of the Arbitration Agreement

[E] The Composition of the Arbitral Authority or the Arbitral Procedure Was Not in Accordance with the Submission Agreement or the Arbitration Clause, or, in the Absence of Any Such Agreement, Was Not in Accordance with the Law of the Country Where the Arbitration Took Place

[F] The Arbitral Award Has Not yet Become Binding on the Parties, or Has Been Set Aside or Suspended by a Court of the Country in Which the Arbitral Award Was Made.

[G] According to Brazilian Law, the Subject Matter of the Dispute Is Not Capable of Settlement by Arbitration

[H] The Arbitral Award Is Offensive to Brazilian Public Policy

[1] International or National Public Policy?

[2] The Current Known Boundaries of Brazilian National Public Policy

[3] Violation of Brazilian National Public Policy Due to the Cumulation of Foreign Exchange Variation with Currency Restatement

[4] Rejected Allegations of Violation of Brazilian Public Policy

[I] The Arbitral Award Violates Brazilian Sovereignty

[1] Pending Lawsuit in Brazil Challenging the Validity of the Underlying Contract / Arbitration Clause

[2] Plaintiff Involved in Court Proceedings in Brazil Prior to the Commencement of Recognition Proceedings

[3] The Existence of a Res judicata Decision Relating to Some of the Issues Discussed in the Foreign Arbitral Award Brought for Recognition

[4] Payment Indexed to Foreign Exchange Variation

[J] The Arbitral Award Violates the Dignity of the Human Person

[K] Jurisdictional Challenges Shall Be Made in the Arbitration in Due Time

2.11 THE PLAINTIFF'S REPLY AND THE DEFENDANT'S REBUTTAL

2.12 RECOGNITION PROCEEDINGS READY FOR DECISION. THE DECISION-MAKING PROCESS WITHIN THE SUPERIOR COURT OF JUSTICE

2.13 APPEALS WITHIN THE SUPERIOR COURT OF JUSTICE

[A] Motion for Clarification

[B] Internal Appeal (if Applicable)

2.14 ADJOURNMENT OF RECOGNITION PROCEEDINGS

2.15 SETTLEMENT BEFORE THE SUPERIOR COURT OF JUSTICE

2.16 INTERIM OR CONSERVATORY MEASURES GRANTED IN THE COURSE OF RECOGNITION PROCEEDINGS

[A] Freezing of Assets

[B] Piercing the Corporate Veil (and Freezing of Assets)

[C] Motion of Protest

2.17 ISSUANCE OF THE WRIT OF ENFORCEMENT

2.18 RECOGNITION DECISION BECOMES RES JUDICATA: DISMISSAL OF PENDING COURT CASES IN BRAZIL.

CHAPTER 3 Decisions on the Merits in Recognition Proceedings before the Superior Court of Justice

3.01 REFUSALS OF RECOGNITION APPLICATIONS BY THE SUPERIOR COURT OF JUSTICE

[A] Cases in Which Recognition Was Refused by the Superior Court of Justice

[1] Plexus Cotton Limited v. Santana Têxtil Ltda. (SEC No. 967/GB), Decided in February 2006

[2] Oleaginosa Moreno Hermanos Sociedad Anónima Comercial Industrial Financeira Inmobiliaria Y Agropecuaria v. Moinho Paulista Ltda. (SEC No. 866/GB), Decided in May 2006

[3] Subway Partners CV v. HTP - High Technology Foods Corporation S/A (SEC No. 833/US), Decided in August 2006

[4] Indutech SPA v. Algocentro Armazéns Gerais Ltda. (SEC No. 978/GB), Decided in December 2008

[5] Kanematsu USA Inc. v. ATS - Advanced Telecommunications Systems Do Brasil Ltda. (SEC No. 885/US), Decided in August 2010

[6] SSangyong Corporation v. Eldorado Indústrias Plásticas Ltda. (SEC No. 826/KR), Decided in September 2010

[B] Cases in Which Recognition Was Partially Refused by the Superior Court of Justice

[1] Kia Motors Corporation v. Washington Armênio et alii (SEC No. 1/KR), Decided in October 2011

[2] GE Medical Systems Information Technologies Inc. v. Paramedics Electromedicina Comercial Ltda. (SEC No. 854/US), Decided in October 2013

[3] Construcciones y Auxiliar de Ferrocarriles S/A et alii v. Supervia Concessionária de Transporte Ferroviário S/A (SEC No. 2.410/UY), Decided in December 2013

3.02 THE MERITS OF THE ARBITRAL AWARD WILL NOT BE REVIEWED BY THE SUPERIOR TRIBUNAL OF JUSTICE

[A] Exceptio Non Adimpleti Contractus

[B] Contractual Performance (or Breach)

[C] Contractual Breach Due to Bad Weather. Unjust Outcome of the Arbitration

[D] Choice of Law Issues

[E] The Nature of the Contract (whether or Not a Contract of Adhesion)

[F] Force Majeure.

[G] Unjust Enrichment

[H] Lack of Evidence to Support the Award. Contractual Breach Due to Events beyond the Respondent's Control

[I] The Underlying Contract Was Procured by Fraud. Pending Investigation by the Police

[J] Compound Interest

[K] Joint and Several Liability Established by the Arbitral Award

[L] The Award Decided a Matter Related to a Contract Which Was the Subject of Another Arbitration

[M] Wrongful Judgment Due to the Absence of a Penalty Clause in the Contract

[N] Mistake on Submitting to Arbitration and in Relation to the Actual Parties to the Dispute

during the Negotiation Phase, the Defendants Were Assisted by an Economist, Not by a Lawyer

Arbitral Tribunal Wrongly Excluded Three Companies from the Arbitration, Misapplied the Applicable Law, and Failed to Be Impartial

Violation of Due Process and of the Adversarial System

Defendants Were Denied Their Right to Present Their Case

[O] Contract Invalidity

CHAPTER 4 Challenging Recognition Decisions Rendered by the Superior Court of Justice

4.01 EXTRAORDINARY APPEAL

4.02 RESCISSORY ACTION (MOTION TO SET ASIDE A RES JUDICATA RECOGNITION DECISION)

CHAPTER 5 The Role of the Superior Court of Justice in International Judicial Cooperation. Will the Court Support International Arbitration Proceedings?

5.01 COURT SUPPORT TO ARBITRATION PROCEEDINGS UNDER THE BRAZILIAN ARBITRATION ACT

5.02 INTERNATIONAL JUDICIAL COOPERATION THROUGH LETTERS ROGATORY

[A] Enforcement Measures Requested by Means of Letters Rogatory

5.03 SUMMARY

CHAPTER 6 Enforcement of Foreign Arbitral Awards

6.01 LIMITATION PERIOD FOR COMMENCEMENT OF ENFORCEMENT PROCEEDINGS

6.02 ENFORCEMENT PROCEEDINGS

[A] Applicable Law

[B] Filing for Enforcement: Evidence Required

[C] The Competent Federal Court

[D] Loss of Suit Fees in Enforcement Proceedings.

[E] Service of Process.

Notes:

Description based on print version record.

Description based on publisher supplied metadata and other sources.

ISBN:

90-411-6597-5

OCLC:

1239982427