The Developments of Arbitration in Brazilian Legal System: Examining Amendments to the Brazilian Arbitration Law, the New Civil Procedure Code, and the Novelty of the Arbitral Letter

• Author: Raphaela Ladeia
• Pages: 399-421

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2017 e Institute for Migrant Rights Press

THE DEVELOPMENTS OF ARBITRATION IN

BRAZILIAN LEGAL SYSTEM

EXAMINING AMENDMENTS TO THE BRAZILIAN

ARBITRATION LAW, THE NEW CIVIL PROCEDURE CODE,

AND THE NOVELTY OF THE ARBITRAL LETTER

Raphaela Maciel Ladeia

Attorney at Law, Brazil

E-mail: rml2177@columbia.edu

In 2015, the Brazilian legislators amended the Arbitration Law and promulgat-

ed a New Civil Procedure Code. is paper focuses on the amendments and the

new Code, which were imperative to end controversies addressed by the aca-

demia and case law, therefore modernizing and dynamizing the legislation. e

reforms followed an international tendency to increase the use of arbitration,

which is clearly benecial for delivering fast and specialized justice. As a result,

the new legislation brought Brazil to a prominent position in the international

economy scene incrementing the credibility of the national arbitration institu-

tions. e amendments to the Arbitration Law and the New Civil Procedure

Code only came to force in July 2015 and March 2016, respectively. is paper

delivers a signicant analysis on what motivated and inspired the new legisla-

tion, its process, challenges, scope, and the most remarkable innovations, which

stand out the arbitral letter.

Keywords: Legal Reform, Development and Law, Alternative Dispute Resolution,

Civil Law, Procedural Law.

IV Indonesian Journal of International & Comparative Law 399-423 (April 2017)

400

Ladeia

I. INTRODUCTION

Arbitration is growing in use in Brazil for its obvious advantages. For

a start, the Brazilian Bar Association argues that arbitration may be a

solution to the Brazilian “Judiciary crisis,”1 which means slow justice

due to the overload of the Brazilian Judiciary. In fact, Arbitration is

more than just an alternative to litigation—which would naturally re-

lieve the Judiciary—arbitration’s inherited characteristics, such as sim-

plicity and informality, bring in its essence the concept of celerity. In

this context celerity is an attempt to provide a fast and eective solution

to a case in order to ensure the usefulness of the result at the end of the

da y.

e Brazilian Constitution includes celerity as one of its fundamental

guarantees, which is an instrument for fundamental rights’ protection.

e Article 5, LXXVIII of the Brazilian Constitution states that “a

reasonable length of proceedings and the means to guarantee their

expeditious consideration are ensured to everyone, both in the judicial

and administrative spheres.” Arbitration is also less bureaucratic

than the Judiciary procedures, since the numerous types of appeals

and objections that exist in the Brazilian Judiciary are not present in

arbitration. Besides this, arbitration tends to be less rigid, with simpler

and easier rules to follow. In eect, it uses a much simpler language—

without legal jargon. In Brazil, the Judiciary has been accustomed to

employ technical and Latin expressions, which may not only frustrate a

clear comprehension but also obstruct the access to Justice.

at being said, I can sum-up the main benets of arbitration

as being: celerity, respect for the autonomy of will, exibility of

procedural rules, specialization of arbitrators, cost-benet, and

possibility of condentiality when the parties expressly agree upon it.2

1. See generally S C  M, C  A-

   B B F C (Comissão Especial de

Mediação, Conciliação e Arbitragem do Conselho Federal da OAB), Manu-

al de Arbitragem para Advogados [Arbitration Manual for Lawyers], http://

www.adambrasil.com/wp-content/uploads/2015/06/Manual_arb_oab_cacb.

pdf (last visited May 10, 2016).

2. See generally iago Luis Sombra, A Constitucionalidade da Arbitragem e sua

Disciplina no Anteprojeto de CPC [e Arbitrat ion’s Constitutionality and its