08 Aug 2023
Introduction
In June 2023, the Chartered Institute of Arbitrators (Ciarb) and its Brazil Branch submitted to Brazil’s Supreme Court an application to intervene and an amicus brief in ADPF 1050, a constitutional matter concerning arbitrators’ duty to disclose.
The resolution of this matter holds significant importance for the proper functioning and development of arbitration in Brazil. Its outcome may have a direct impact on numerous past, present, and future arbitral awards, and related judicial proceedings. Indirectly, it could influence the behaviour of parties and arbitrators in arbitration proceedings. As Brazil has adopted a monistic arbitration law, this case could have ramifications not only for Brazilian-seated arbitrations but also for foreign awards seeking recognition and enforcement in Brazil.
Background of the dispute
Since March 2023, a matter concerning arbitrators’ duty to disclose is pending before Brazil’s Supreme Court. The application for constitutional remedy (ADPF 1050) seeks a constitutional interpretation by the Court of Article 14 of the Brazilian Arbitration Act. The provision mirrors standards of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration, the IBA Guidelines on Conflicts of Interest in International Arbitration (“IBA Guidelines”) and other national laws and states that arbitrators should disclose “any fact that gives rise to justifiable doubts about their impartiality and independence”.
Issues raised in the application and amicus brief include:
Several Brazilian national industry groups have filed requests to intervene as amici curiae in this case to help achieve the right outcome for the Brazilian arbitration community. Ciarb has joined the cohort of prospective interveners to bring an essential international perspective to the case, shedding light on international practice and internationally acceptable legal standards, all falling within due process of law.
Ciarb’s intervention
Ciarb’s intervention in ADPF 1050 is grounded in its purpose ‘to promote and facilitate worldwide the determination of disputes by all forms of private dispute resolution other than resolution by the court (collectively called “private dispute resolution”)[1].
Acknowledging that the Brazilian Arbitration Act is in line with international standards, Ciarb points to the risk of Brazil falling behind on its position in the global arbitration market if the country’s laws or judicial bodies deviate from internationally acceptable legal standards. Specifically, Ciarb contributes on the following points:
The records of ADPF 1050 can be found here and an English version of Ciarb’s application and amicus brief is available here.
Authors: Cesar Pereira C.Arb FCIArb, Luísa Quintao ACIArb and Leonardo Souza-McMurtrie ACIArb.
[1] Ciarb Royal Charter and Bye-laws, 15 February 2023.
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