03/9/2024
The autonomy of the arbitral system from the Brazilian Code of Civil Procedure (“CPC”) was upheld by the Superior Court of Justice (“STJ”) in a significant ruling, rendered in Special Appeal n. 1.851.324/RS, that confirmed the inapplicability of the CPC in arbitral proceedings.
The controversy revolved around the applicability, or not, of CPC’s rules to arbitration, either as a supplementary measure or in the absence of an express exclusion, particularly concerning issues of impartiality or conflict of interest. The appellant argued that the arbitral award was null and void due to the alleged suspicion/impediment of respondent’s representative who, during the hearing, served as translator for two witnesses who testified in another language – Chinese.
Although the nullity was recognized by both District and State Court, STJ overturned the judgment, holding that there is no rule subordinating arbitrators to the evidentiary procedure established in the CPC, meaning that its rules are not applicable to arbitration, not even as a subsidiary measure. Instead, STJ recognized that arbitral proceedings are governed by (i) conventions stablished between the parties – arbitration agreement and terms of reference; (ii) chosen procedural rules – such as the rules of Arbitral Institutions; and (iii) arbitrator’s decisions.
Therefore, in line with the prevailing legal doctrine, STJ ruled that the subsidiary application of the CPC to arbitral proceedings is inappropriate, as the Brazilian Arbitration Act explicitly outlined the few exceptions in which the CPC may be used for domestic arbitrations. Furthermore, if no specific rule is agreed upon by the parties or established in the arbitration rules applicable to the case, the arbitrator has the discretion to rule on the relevance, timing and, above all, the method of evidence production.
In light of this accurate decision, it is crucial for arbitral proceedings to be conducted by specialist in arbitration, in order to ensure proper conduction with due regard for the unique aspects of each case.
L.O Baptista’s dispute resolution team is a reference in arbitration and is prepared to offer specialized support to its clients.
Co authored by: Silvia Rodrigues Pachikoski, Mariana Dias Sallowicz, Gabriel Rogenfisch Quintans, José Victor Palazzi Zakia and Julia Guimarães Rosseto
