INTERNATIONAL ARBITRATION 1/3LY
IN CONVERSATION WITH JOÃO BOSCO LEE 19
CREATING A SUPPORTIVE ENVIRONMENT FOR ARBITRATION
BOSCO The CBAr has become one of the most important academic institutions in Latin America. The idea to create the CBAr originated in 2000 when Clávio Valença Filho, Eduardo Damião Gonçalves and I returned from our post-graduate studies in France. We were greatly inspired by the Comité Français de l’Arbitrage and decided to create a similar association in Brazil which sought to raise the profile of arbitration in Brazil and encourage debate in the area. Since the beginning we had the support of well-established individuals in the arbitration community such as Carlos Nehring Neto (Advisory Member of the ICCA), Carlos Mafra de Laet (former Alternate Member of the ICC International Court of Arbitration), Luiz Fernando Teixeira Pinto (Vice President, Brazilian Committee of the ICC International Court of Arbitration), Selma Ferreria Lemes (Member of the ICC International Court of Arbitration) and Pedro Baptista Martins (co-drafter of the Brazilian Arbitration Law); together with those from a new generation of arbitration practitioners such as Adriana Pucci (Board Member of the CBAr), Adriana Braghetta (Member of the Governing Board of ICCA), Eleonora Coelho (member and former Vice President of the CBAr), Joaquim Muniz (President of the Arbitration Chamber of the Brazilian Bar), among others. PETER I understand that the new Brazilian Arbitration Law will be enacted soon. What are the main changes that will be brought about by the law if and when it’s enacted? BOSCO The new arbitration law should be approved soon. It updates the 1996 Arbitration Law by plugging certain gaps, consolidating solutions adopted by case law and correcting mistakes in the application of the law. The most interesting change is the article that refers to the participation of public entities in arbitration. Although the Bill admits their participation, there is a reference to regulation that remains undefined and may cause an insecurity for the market. As the Bill is still awaiting approval by the Senate this could still be modified. Despite this uncertainty as to the regulation of the participation of the State in arbitration, the new project of the law will not affect commercial arbitration, which should still remain the best option for the resolution of corporate disputes.
PETER At Clyde & Co, we have had some mixed experiences with the Brazilian Courts with regards to their attitude to supporting arbitration. In your opinion, is the Superior Court of Justice (STJ) – the competent court for the recognition and enforcement of foreign arbitral awards – supportive in the application of the New York Convention? BOSCO I would say that national courts are now generally supportive of arbitration. Earlier unfavorable decisions have not been followed but no doubt, with the rise in the number of arbitration cases seeking the support of the courts, we will see new challenges in the future. I believe the courts will be asked to consider important issues such as independence and impartiality of arbitrators – which has not really been tested so far – and the participation of public entities in arbitration. There are some important new cases in the courts concerning recognition and enforcement of foreign arbitral awards and on the independence of the president of an arbitral tribunal which will assist practitioners in the future. The STJ’s application of the New York Convention has naturally come under scrutiny and been the subject of a lot of activity in the Court. In recent years seminars organized by the Brazilian Arbitration Committee (CBAr), with the support of the ICCA, have been held with members of the STJ who have willingly received views from international practitioners regarding the manner in which their domestic courts have dealt with challenges to arbitral awards. PETER You talk about the CBAr in making representations to the STJ. How did the idea to create the CBAr come about? Who supported and was involved in the early days of the CBAr?
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