Let's Continue To Talk About Arbitration!

Author:Mr Antonio Barbuto Neto and Fernando Eduardo Serec
Profession:TozziniFreire Advogados

Originally published in ILO June 9, 2011

Not so long ago, the general perception within the Brazilian legal community was that the number of seminars, symposia and congresses about arbitration far outnumbered the actual cases submitted to this alternative means of dispute resolution. Although the subject remains a hot topic at these events (as is appropriate), the recent explosion in the number of proceedings serves to put to rest, once and for all, the initial scepticism of some practitioners towards arbitration.

The number of cases administered by Brazilian arbitral institutions has soared in the past few years and the country holds a prominent spot in the annual statistics published by the International Chamber of Commerce. The arbitration bar has grown more diverse and specialised, with many practitioners engaging in academic studies abroad, followed by internships at respected law firms and international arbitral institutions.

The Arbitration Committee continues to fulfil its mission to serve as a conduit between arbitration and the business community. Quality scholarly works are being published by respected authors and rising stars, and law schools are finally offering courses specifically designed to train students in alternative dispute resolution.

However, all the hype around arbitration in Brazil would not be possible without the pivotal role played by the judiciary. The early resistance to the Arbitration Act has been replaced by reasoned decisions enforcing arbitration clauses, granting injunctions in aid of arbitration and refusing to set aside arbitral awards based on groundless arguments. The track record of the Superior Court of Justice in confirming the vast majority of foreign arbitral awards is a testament to the judiciary's commitment to arbitration.

Despite evidence of genuine enthusiasm, there will always be room for improvement of arbitration in Brazil. The success of arbitration is also arguably the main threat to its development. As the number of disputes increases, so too does the need to continue to educate lawyers and judges about the particularities of arbitration. Lawyers must understand that arbitration is not litigation, and that the tactics once used to impress judges and clients in a court of law are simply not effective in defending their...

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