“ARBITRATION, APPLICABLE LAW AND ELECTION OF JURISDICTION Clause 14.1. All disputes arising from or related to this Agreement, including those concerning its validity, effectiveness, breach, interpretation, termination, rescission and their corollaries, will be resolved by arbitration, in accordance with the provisions of Law No 9.307/96 (“Arbitration Law”), pursuant to the conditions below. Clause 14.2. The dispute will be submitted to the CCI … in accordance with its Regulations … in effect as of the date of the request for arbitration. Clause 14.3. The hearings, petitions and documents of the arbitration will be conducted in the Portuguese language and, if requested by any of the Parties or the arbitrator, will be translated simultaneously into the English language. The place of the arbitration will be the city of São Paulo. … Clause 14.5. The arbitrators selected must know the English language, regardless of their nationality. Clause 14.6. This Agreement will be interpreted and governed by the laws of Brazil and the Arbitration Panel will decide on disputes and disagreements in accordance with the laws of Brazil, ignoring any other rule of international private law that may cause the laws of any other country or jurisdiction other than Brazil to be applicable. Clause 14.7. The Arbitration Panel shall decide the matters submitted to it only in accordance with provisions of law, and must base their decision on the laws of Brazil. ...”
“Article V 1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: (a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or (b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or (c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or (d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or (e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. 2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: (a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or (b) The recognition or enforcement of the award would be contrary to the public policy of that country.” (a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or (b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or (c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or (d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or (e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. (a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or (b) The recognition or enforcement of the award would be contrary to the public policy of that country.”
“The interested party may request the competent judicial authority to declare the arbitral award null in the cases set forth in this law. …”
“An arbitral award is null and void if: (i) The arbitration agreement is null; (ii) It is made by an individual who could not serve as an arbitrator; (iii) It does not comply with the [formal] requirements of article 26 of this Law; (iv) It has exceeded the limits of the arbitration agreement; (v) (Revoked); (vi) It has been duly proved that it was made through unfaithfulness, extortion or corruption; (vii) It is rendered after the time limit has expired, in compliance with article 12, item III of this Law; and (viii) It violates the principles set forth in article 21, paragraph 2 of this Law.” (i) The arbitration agreement is null; (ii) It is made by an individual who could not serve as an arbitrator; (iii) It does not comply with the [formal] requirements of article 26 of this Law; (iv) It has exceeded the limits of the arbitration agreement; (v) (Revoked); (vi) It has been duly proved that it was made through unfaithfulness, extortion or corruption; (vii) It is rendered after the time limit has expired, in compliance with article 12, item III of this Law; and (viii) It violates the principles set forth in article 21, paragraph 2 of this Law.”
“The principles of due process of law, equal treatment of the parties, impartiality of the arbitrator and freedom of decision shall always be respected.”
“we are not familiar with modes of procedure in many foreign countries, and it may not be easy to be sure that a particular issue has been decided or that its decision was a basis of the foreign judgment and not merely collateral …”
“… the [need] for caution … is most likely to be relevant when considering the precise identity of the issue determined, whether it was necessary for the decision and whether there has been a decision ‘on the merits’. Where differences in procedure make these issues difficult to determine then the court needs to exercise caution. However, if these matters are clear then the need for caution does not arise.”
“Despite a general standard of de novo review, and the refusal of many national courts to grant formal preclusive effect to arbitrators’ jurisdictional rulings, courts in a number of jurisdictions have accorded a substantial degree of deference to arbitrators’ factual determinations and legal conclusions regarding the existence or validity of [the] arbitration agreement in annulment proceedings.”
“… neither the [Arbitration Law], nor the [Code of Civil Procedure], nor any relevant court rules, expressly set out what standard of review a Brazilian court is required to apply in an annulment action under article 33 of the [Arbitration Law], whether on questions relating to the jurisdiction of the arbitral tribunal, or otherwise. In the Annulment Proceedings, the Brazilian courts therefore were not required to consider the matters before them de novo from the arbitration tribunal’s Award. In my opinion, it is very difficult in fact to identify what standard of review or consideration the Brazilian courts applied, but it appears they primarily reviewed the correctness of the tribunal’s decision on jurisdiction rather than considering that question de novo.”
“The old notion that foreign legal materials can only ever be brought before the court as part of the evidence of an expert witness is outdated. Whether the court will require evidence from an expert witness should depend on the nature of the issue and of the relevant foreign law. In an age when so much information is readily available through the internet, there may be no need to consult a foreign lawyer in order to find the text of a relevant foreign law. On some occasions the text may require skilled exegesis of a kind which only a lawyer expert in the foreign system of law can provide. But in other cases it may be sufficient to know what the text says.”
“apart from some incontrovertible facts relating to the contractual documents in issue, the questions for the Brazilian courts were pure points of their own law, points of contract interpretation”
“The principle of competence-competencesays nothing about the test which a court brings to bear when the issue of anarbitrator’s jurisdiction is challenged. It is merely the doctrine which says that it is thought ingeneral to be better and more efficient if the arbitrator takes the first, or initial, look at the issue, before it comes before a court for its definitive judgment …”
“The courts proceed the other way around: whilst no court has held that article V(1)(b) constitutes an international rule, many have affirmed that the standards of due process are basically to be judged under their own law. However, as noted, they hold either expressly or implicitly that what may be a violation of due process under their own law is not necessarily a violation of due process under the Convention. This judicial attitude belies the fears of parochialism of the authors.”
“In the United States, the relevant principles are generally referred to as ‘due process’ standards, but use of this term does not imply that domestic constitutional due process protections directly apply in arbitration. The procedural protections that assure fundamental fairness in a consensual arbitral process, particularly ones involving parties from different legal cultures and procedural traditions, are distinct from those that would be required in judicial proceedings in which the Due Process Clauses of the Fifth and Fourteenth Amendments of the US Constitution apply.”
“While avoiding a clear answer, the Swiss Federal Court seems to take an intermediate stance (domestic standards adapted to the different context of international arbitration and to the transnational standards), although there are scholars supporting an autonomous notion.”
“The provision [article V(1)(b)] aims to safeguard that the parties to the arbitration have had a reasonable opportunity to participate in the arbitral proceedings and to state their case, ie to maintain the adversarial principle. It has been argued that the rule of due process is an international provision. However, national courts have on occasion looked at national law for guidance, although noting that a transgression of national law may not necessarily be a transgression of the New York Convention. The provision will in any case be interpreted restrictively.”
“As charges of malicious conduct have been made, it is up to the arbitration tribunal, in accordance with the general principles of Brazilian procedural law, to analyse and rule on this issue; and to do so the tribunal (a) shall look into the concept and regulation of malice under Brazilian law, and then (b) shall analyse whether such actions fit into the legal concept of malice.”
“An arbitral tribunal should be very cautious about applying any provision of law on which the parties have not had an opportunity to comment or make submissions. Unlike judges in some civil law jurisdictions, arbitral tribunals that decide a case on the basis of legal concepts not raised by any of the parties will risk breaching due process requirements, rendering the award vulnerable to being set aside or difficult to enforce. If an arbitral tribunal is contemplating the application of legal concepts not argued by the parties, it should seek to uphold due process by presenting those concepts to the parties and inviting their comments.”
“Just as great weight must be attached to the policy of sustaining the finality of international awards, so also must great weight be attached to the policy of sustaining the finality of the determination of properly referred procedural issues by the courts of the supervisory jurisdiction.”
“The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, …”
“It makes very little sense to attempt to force these various issues into the law chosen by article V(1)(a) - especially when the text of article V(1)(c) makes no similar choice.”