Tuesday, October 02, 2007

Seat in Brazil?

Attractiveness of a particular location as a potential seat of arbitration lies ―to a great extent― to the issue of whether there are, in such seat, a modern and arbitration-friendly legislation, supportive (pro-arbitration) courts, and a good general infrastructure.

Brazilian cities are hardly chosen as neutral seats of arbitration. I believe there are two main (and obvious) reasons for that:

(i) arbitral clauses are inserted in international contracts mainly because arbitration is seen as a "neutral forum" of dispute resolution. And, from a practical and financial standpoint, it may not necessarily make sense to establish the seat of an international arbitration in Brazil (if the parties are, for instance, from Europe, the US or Asia, the logistics involved may make it very expensive to arbitrate in Brazil).

(ii) not only the arbitrators may be trusted by the parties; the court system of the arbitral seat must be trusted by the parties as well. The parties cannot "appoint" the court system. Although Brazilian courts have been very supportive to arbitration and there are plenty of pro-arbitration decisions in Brazilian case law, arbitration is still in its infancy in Brazil.

I believe that Brazil has achieved a very good level of receptivity towards international arbitration in the last 11 years, since the passing into law of the Brazilian Arbitration Act. Brazil is, undoubtedly, an arbitration-friendly jurisdiction. But it will take some time until Brazil is becomes accepted, both legally and commercially, as a favored forum for resolving international commercial disputes. In the words of a practitioner in the field of international commercial arbitration, "arbitration is about trust, and establishing trust takes time".


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