A Arbitragem Internacional e o Estado brasileiro

Abstract

The mechanism of arbitration is ancient. Its aspects have been delimited over time, serving for different purposes and circumstances. However, it can be said that arbitration, by its nature, is an international law institution that is widely recognized as an effective form of dispute resolution. The aim of this study is to analyze (i) how Brazil has valued the international arbitration in resolving disputes with other subjects of international law, (ii) if Brazil provides a regulatory framework for its nationals so that they can use international arbitration and may have secured their rights externally and (iii) how the national regulatory framework regulates arbitrations held in their territory which relate to other jurisdictions. Brazil has not a refractory approach to international arbitration, having ratified relevant treaties of resolving disputes that have arbitration as a functional tool, both at the global level (Hague Conventions) and regional (Pact of Bogotá and Olivos Protocol). But when it comes to arbitrations involving foreign investors, it is clear that it adopts a reticent position. In 2015, six bilateral treaties have been concluded in investments in which was provided recourse to arbitration in the state-state model, preventing the particular starting arbitration proceedings against a State. Brazil has also signed treaties that deal with the recognition and enforcement of awards. Internally, it was enacted Arbitration Law (n.º 9.307/1996) as an irresistible conformation of the Brazilian system to international order. Although the Arbitration Law ensures the primacy of international treaties, the national courts have preferred applying domestic norms, framing the foreign award from a territorial approach that does not explicitly reveal the importance of the seat chosen by the parties. On the other hand, the Brazilian system does not differentiate between domestic arbitration and international arbitration held in its territory. It can be inferred that Brazil conformed its legal order to the international order to accept and validate arbitration as an appropriate instrument to the access-to-justice in material sense.