Over the last few months, there have been alarmist news and articles regarding the increase of lawsuits for the annulment of arbitral awards, as well as of other lawsuits that challenge the validity of arbitral decisions, in an attempt to demonstrate a supposed fragility of the institute.
However, a recent study conducted by CBAr in collaboration with the Brazilian Association of Legal Metrics, which was released on November 22nd during an event attended by partner Silvia Rodrigues Pachikoski, backpedaled these unfounded attacks on the institute. The research, that analyzed lawsuits related to arbitration conducted before the São Paulo State Court of Justice, demonstrates that the institute remains solid, and that the Judiciary continues to act in favor of arbitration.
The research conclusions indicate that most of the decisions issued between March 2018 and November 2022 are related to lawsuits that act in support of arbitration, as they encompass pre-arbitral precautionary measures, lawsuits aiming to institute arbitral proceedings, and the enforcement of arbitral awards. These numbers alone highlight an important supportive role of the Judiciary.
In this scenario and based on published awards and court decisions, the research concluded that the rate of objection on arbitration awards is of 2.8%, and the chances of success are even more remote, at just 1.5%. Therefore, the frequent dismissal of annulment lawsuits reveals that, in the overwhelming majority of cases, the arbitral award is respected and complied without hitch, validating the efficiency of the system.
It is important to note that the research only considered arbitral awards against which annulment lawsuits has been filed. However, as the universe of arbitral awards issued during the period is much larger, this indicates that the vast majority of arbitral awards are not even contested. It is enough to take as a parameter the 606 arbitral awards issued in the period.
Furthermore, the remote chances of annulment of an arbitral award becomes even more evident in the analysis of the numbers gathered by the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (“CAM-CCBC”). According to the research, out of the 223 arbitral awards issued in proceedings administered by the institution, only 9 were subject of annulment lawsuits.
The conclusions of the research, therefore, demonstrate the Judiciary’s support for arbitration, whose role complements and reinforces arbitral jurisdiction, establishing a notably harmonious dynamic between the two systems, promoting stability and legal certainty.
Obviously, specialized legal representation and the selection of qualified arbitrators are essential to maintain the integrity and success of arbitration as a method of conflict resolution. With this, the institute remains solid, and the probability of an arbitral award being annulled remains remote, which reinforces the legal stability that prevails in a country where arbitration and the Judiciary enjoy mutual trust, respecting the limits of their respective jurisdictions.
Co-authored by: Silvia Rodrigues Pachikoski and Thiago Andere Martins
