Overcoming the Challenges in Establishing Arbitration in Brazil: A Historical Perspective

This article provides a perspective on two barriers created in the Brazilian legal system that were crucial for the stagnation of arbitration in Brazil. The anti-arbitration measures adopted from 1867 until 1996 were detrimental to the acceptance of arbitration as a common method of solving disputes in Brazil. Although the practice of arbitration in Brazil is not a new phenomenon – in fact, when Brazil was a colony of Portugal there were statutory provisions allowing the use of such alternative method of dispute resolution, two Decrees enacted in 1867 and 1878 provided a step back in the arbitration scenario. They determined that the arbitration agreement was a promise to submit disputes to arbitration instead of a contract to have future disputes arbitrated and that an international arbitral award had to be recognised in the jurisdiction where it was issued before its submission to recognition and enforcement in Brazil. However, Brazil overcame these impediments which, at the end of the last century, were repealed.