INTERNATIONAL ARBITRATION 1/3LY
IN CONVERSATION WITH JOÃO BOSCO LEE 19
CRE AT ING A SUP P OR T I V E EN V I RONMEN T F OR A RB I T R AT I ON
BOSCO The CBAr has become one of themost important academic institutions in Latin America. The idea to create the CBAr originated in 2000when Clávio Valença Filho, Eduardo Damião Gonçalves and I returned fromour 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 (AdvisoryMember of the ICCA), CarlosMafra de Laet (former AlternateMember 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 BaptistaMartins (co-drafter of the Brazilian Arbitration Law); together with those froma new generation of arbitration practitioners such as Adriana Pucci (BoardMember of the CBAr), Adriana Braghetta (Member of the Governing Board of ICCA), Eleonora Coelho (member and former Vice President of the CBAr), JoaquimMuniz (President of the Arbitration Chamber of the Brazilian Bar), among others. PE T ER I understand that the newBrazilian Arbitration Law will be enacted soon. What are themain changes that will be brought about by the law if andwhen it’s enacted? BOSCO The newarbitration law should be approved soon. It updates the 1996 Arbitration Lawby plugging certain gaps, consolidating solutions adopted by case lawand correcting mistakes in the application of the law. Themost 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 andmay cause an insecurity for the market. As the Bill is still awaiting approval by the Senate this could still bemodified. Despite this uncertainty as to the regulation of the participation of the State in arbitration, the newproject of the lawwill not affect commercial arbitration, which should still remain the best option for the resolution of corporate disputes.
PE T ER At Clyde&Co, we have had somemixed 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 whichwill 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 heldwithmembers of the STJ who have willingly received views from international practitioners regarding themanner inwhich their domestic courts have dealt with challenges to arbitral awards. PE T ER You talk about the CBAr inmaking representations to the STJ. Howdid the idea to create the CBAr come about?Who supported andwas involved in the early days of the CBAr?
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