English to Brazilian Portuguese Translation Services
Professional Portuguese to English and English to Brazilian Portuguese translation services play an important role in international business. Brazil has been attracting lots of attention from the international arbitration community. This has probably less to do with Brazil’s arbitration-friendly legislation and the pro-arbitration attitude of Brazilian judges, and more to do with the fact that over the past few years, Brazil has been experiencing a significant level of economic growth and thus a significant increase in the number of international arbitrations involving Brazilian parties.
More so, Brazil has established itself as a capital exporter. In 2006 alone Brazilian capital outflows overseas surpassed the inflows of foreign direct investment to the country. Today, the total amount of Brazilian foreign direct investment is in excess of US 106 billion. In other words, this means more Brazilian investors are signing more contracts, which in turn means a further increase in the number of arbitrations involving Brazilian parties.
The result: Brazil will play a major role in international arbitration in the coming years.
Knowing this, what does arbitration in Brazil look like?
In general, Brazil follows international arbitration law. It ratified and introduced the New York Convention into its legal system on 25 April 2002 and, as of yet, has not made any reservations or declarations. Brazil is also party to a few multilateral treaties on international commercial arbitration, such as the Geneva Protocol on Arbitration Clauses of 1923, the Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards of 1979 (the Montevideo Convention), the Inter-American Convention on International Commercial Arbitration of 1975 (the Panama Convention), the Protocol of Las Leñas of 1992 and the 1998 MERCOSUR Agreement on International Commercial Arbitration.
In terms of national law Brazil’s Arbitration Act was enacted on 24 September 1996 and is based on the UNCITRAL Model Law and on the Spanish Arbitration Law of 1988 and applies to all arbitral proceedings with their seat in Brazilian territory. To enforce this, a significant number of arbitration institutions and centers have been created. For example, parties often decide to undertake institutional arbitration (as opposed to ad hoc arbitration) in Brazil. Among the most commonly chosen institutions are the Arbitration and Mediation Center of the Chamber of Commerce Brazil-Canada (CCBC), the Sao Paulo Chamber for Mediation and Arbitration (FIESP/CIESP), Conciliation and Arbitration Chamber of the Fundação Getúlio Vargas (FGV) the Corporate Chamber of Commerce in Brazil (CAMARB), the Arbitration and Mediation Center of the American Chamber of Commerce in São Paulo (AMCHAM), Mediation and Arbitration Center of the Portuguese Chamber of Commerce in Brazil and the Market Arbitration Center instituted by BOVESPA/BMF (Câmara de Arbitragem do Mercado (CAM).
As Brazil continues to become more and more of a global player, many of these above listed institutions are currently going through a process of ‘internationalization’ by entering into partnerships and agreements with other foreign arbitral institutions.
Brazilian arbitration law establishes two ways through which arbitration may arise between parties. On the one hand, a pre-dispute obligation to arbitrate may be included in contract, referred to simply as arbitration clause. On the other hand, it may take form through a separate agreement, which may be included if the contract itself does not contain an arbitration clause.
Both the arbitration clause and the separate arbitration agreement must fulfill certain requirements to be valid and enforceable under Brazilian law. First, the parties must have full legal capacity. Second, the subject matter to be arbitrated must be pecuniary patrimonial and negotiable rights (right over which parties may negotiate). Finally, the arbitral agreement must provide the qualification of the parties and arbitrators (or of the arbitration center), the subject matter of the arbitration and the place where the arbitration decision will be rendered. Arbitration clauses can be inserted into contracts to determine that any future dispute arising from the contract will be resolved through arbitration.
Finally, arbitration clauses are only valid and effective in consumer contracts or adhesion contracts, when the consumer or adhering party initiates the arbitration; the provision is in boldface; or when it is established in a separate signed document. In other words, the arbitral agreement is only deemed valid and enforceable if the weakest party – the consumer or adhering party – wishes to resolve the dispute through arbitration.
Contact our legal translation service to obtain certified Portuguese to English and English to Portuguese translations and to retain Portuguese interpreters for your Brazilian arbitration.