Lex Arbitri, Lex Curia and Lex Contractus in Brazilian Jurisdiction

Abstract

International arbitration arose as a global phenomenon with the growth of transcontinental trade in a progressive smaller world. As its role and importance have become defined, the use of arbitration as an alternative dispute resolution has increased all around the world accordingly. However, even with unified international documents, such as the 1958 New York Convention, 1965 Washington Convention, 1985-2006 United Nations Commission on International Trade Law, or UNICITRAL Model Law, arbitration has been approached differently domestically, thus facing conflicts or controversies. This paper has as main objective to explain the key points concerning arbitration within the Brazilian legal system. The evolution of arbitration will be studied since the Iberian Union in the colonial era in order to bring about the formation of its legal characteristics. Besides, the current Brazilian Arbitration Act, promulgated in 1996, will be analyzed focusing on its provision gaps. The Sulamerica-Enesa arbitral award will be the case study of this paper, which will contribute to a better understanding of the increase in conflicts with the use of this method of dispute resolution. Last, an overview of the Brazilian arbitration legislation as well as its “gaps” will determine that in spite of arbitration being successfully implemented in Brazil, there is still an eminent need to improve legislation, which will be substantial to avoid further conflicts in lex arbitri, lex curia and lex contractus within arbitration itself.