On 18 March 2016, the new Brazilian Code of Civil Procedure entered into force. The main goal of the new code is to reduce the number of judicial lawsuits, which to date exceeds 105 million cases, by fostering mediation and enhancing the binding effects of court precedents.
Even if the new Code of Civil Procedure does not regulate arbitration, which is governed by a specific legislation recently reformed, it has several provisions that support arbitral proceedings. The most symbolic ones expressly acknowledge the jurisdictional nature of arbitration, which is recognized as a reliable method for resolving disputes and another manner for seeking remedy for threatened legal rights, as are judicial lawsuits.
The main development of the new code on arbitration is the arbitral letter (carta arbitral), created as a tool through which the arbitrators may request from judges orders in aid of the arbitration proceedings. This may be the case when it becomes necessary to formally summon or to compel witnesses to appear at an arbitration hearing, or even during the judicial enforcement of restraining orders and injunctions issued by the arbitrators.
Another relevant provision is the express recognition that any judicial lawsuit arising from a confidential arbitration (from the preliminary injunctions prior to the arbitral proceedings to any motion to set aside the arbitral award) shall also be deemed confidential.
The innovations brought by the new Code of Civil Procedure, and especially the arbitral letter, will be of great value for fostering arbitrations seated in Brazil, given that it will be much simpler to obtain court assistance in aid of arbitration.
These new provisions were formulated by a commission of the Rio de Janeiro Bar, headed by Brazilian Baker & McKenzie partner Joaquim de Paiva Muniz.
Joaquim de Paiva Muniz MCIArb is a partner at Trench, Rossi & Watanabe, associated with Baker & McKenzie, head of the Arbitration Commission of the Rio de Janeiro Bar and an active Member of CIArb.
This article was originally featured by Lexology on 29 March 2016.