Other Brazilian Statutory Provisions
1. Federal Constitution of 1998, Article 114, paragraphs 1 and 2.
Article 114. The Labor Justice has the power to conciliate and judge individual and collective disputes between workers and employers, including entities of public international law and of the direct and indirect public administration of Municipalities, the Federal District, States and the Federal Government, and, under the terms of the law, other disputes arising from labor relations, as well as litigations arising from the compliance with its own decisions, including those of a collective nature.
Paragraph 1 – If collective negotiations are unsuccessful, the parties may appoint arbitrators.
Paragraph 2 – If any of the parties refuses to negotiate or submit their dispute to arbitration, the respective unions may file a labor dispute and the Labor Courts may establish rules and conditions thereto, complying with the minimum convention-based and statutory provisions regarding labor protection.
2. Law No. 9,099, of September 26, 1995, SECTION VIII.
Provides for Civil and Criminal Small Claims Courts and other matters.
Section VIII
Conciliation and Arbitral Tribunal
Article 21. Once court session is opened, a court judge or a lay judge shall explain to those present the advantages of conciliation, showing them the risks and consequences of litigations, particularly with regard to the provisions of article 3, paragraph 3 of this law.
Article 22. The conciliation process shall be conducted by a court judge or a lay judge or by a conciliator assisted by one of them.
Sole paragraph. If conciliation is successful, it shall be evidenced in writing and homologated by a decision given by the judge, which decision shall serve as an execution instrument.
Article 23. If respondent is absent, the judge shall hand down the decision.
Article 24. If conciliation is not successful, the parties may mutually agree on submitting the matter to an arbitral tribunal pursuant to the terms of this Law.
Paragraph 1. An arbitral tribunal shall be considered established upon selection of arbitrators by the parties, regardless of any written agreement. If no arbitrator is present, the Judge shall call the chosen arbitrator and promptly designate a date for the hearing.
Paragraph 2. The arbitrator shall be chosen among lay judges.
Article 25. The arbitrator shall conduct the process based on the same criteria as used by the Judge, pursuant to articles 5 and 6 of the present Law, and his decision may be grounded on equity.
Article 26. Upon conclusion of the discovery or within five days thereafter, the arbitrator shall submit his decision to the judge for homologation, which homologation shall be given by a final and non-appealable decision.
3. Law No. 7,783, OF JUNE 28, 1989 (STRIKE ACT), ARTICLE 3.
Article 3. If negotiations are unsuccessful or resorting to arbitration is impossible, collective work stoppage is allowed.
Sole paragraph. The relevant union or employers directly involved in the matter shall be notified at least forty-eight (48) hours before such stoppage.
4. Provisional Measure No. 1,982-76, OF OCTOBER 26, 2000, ARTICLE 4.
Provides for employees’ profit sharing and other matters.
Article 4. If negotiations regarding profit sharing are fruitless, the parties may resort to the following dispute resolution mechanisms:
I – mediation;
II – final offer arbitration.
Paragraph 1. A final offer arbitration is an arbitration in which the arbitrator is limited to choosing, on a final basis, the proposal suggested by one of the parties.
Paragraph 2. The mediator or arbitrator shall be chosen by mutual agreement between the parties.
Paragraph 3. Once a submission agreement has been signed, none of the parties shall be entitled to unilateral withdrawal.
Paragraph 4. The arbitration award shall be binding regardless of court homologation.
5. Provisional Measure No. 1,950-70, OF NOVEMBER 16, 2000.
Provides for supplementary measures to the ‘Real Plan’ and other matters.
Article 11. If negotiations between the parties – directly or through a mediator – are unsuccessful, a labor dispute may be filed.
Paragraph 1. The mediator shall be designated by mutual agreement between the parties or, upon the parties’ request, by the Ministry of Labor, pursuant to the terms of the regulation referred to in the paragraph 5 hereto.
Paragraph 2. Any party who considers itself as lacking appropriate conditions to take part in a direct negotiation on equitable grounds may promptly request the Ministry of Labor to designate a mediator, who shall call the other party.
Paragraph 3. The designated mediator shall have thirty days to conclude the negotiation procedure, except if the parties specifically settle otherwise.
Paragraph 4. If the parties fail to reach an agreement, or in case any of them refuses to mediate, a document shall be drafted describing the causes giving rise to the conflict and the claims of monetary nature. This document shall be attached to the labor lawsuit.
6. Law No. 9,514, OF NOVEMBER 20, 1997, ARTICLE 34.
Provides for the Real Estate Loans, introduces fiduciary transfer of ownership (“alienação fiduciária”) of real property and other matters.
Article 34. Agreements regarding real estate financing in general may provide that litigations or disputes between the parties shall be submitted to arbitration pursuant to the terms of Law No. 9,307 of September 24, 1996.
7. CIVIL PROCEDURE CODE, LAW No. 5,869 OF JANUARY 11, 1973, ARTICLES 267, VII; 301, IX; 584, III; AND 520.
8. DECREE No. 1,572 OF JUNE 28, 1995.
9. LEGISLATIVE DECREE No. 129/95 – BUSINESS WITHIN MERCOSUL; LEGISLATIVE DECREE No. 90 OF 1995; AND LEGISLATIVE DECREE No. 93 OF 1995.
10. Law No. 8,987, OF FEBRUARY 13TH, 1995.
Provides for the concession and permission of public services regime provided for in the article 175 of the Federal Constitution, and other matters.
Chapter VI
Public Utility Contract
Article 23. The clauses that provide for the following issues are essential to the public utility contract:
XV – the jurisdiction and the amicable settlement of disputes arisen from the contract.
11. Law No. 11,079, OF DECEMBER 30TH, 2004
Provides for general rules regarding public tender and contracting private-public partnership within the public administration
Article 11. The Summoning instrument shall encompass the draft of the contract, shall indicate expressly the submission of the public tender to the rules of the present Law and shall observe, when possible, the paragraphs 3rd and 4th of the article 15, the articles 18, 19 and 21 of the Law 8,987, of February 13th, 1995, and may provides for:
III – the implementation of private means of alternative dispute resolution, including arbitration, to be conducted in Brazil, in Portuguese, under the Law 9,307, of September 23rd, 1996, to resolve conflicts arisen from or related to the contract.
12. Law No. 9,478, OF AUGUST, 6th, 1997.
Provides for the National Energy Politics, the activities related to the oil monopoly, institute the National Council of Energy Politics and the National Agency of Petroleum, and other matters
SECTION v
Concession Contract
Article 43. The concession contract shall reflect reliably the conditions of the public bidding and the winner bid and shall contain essential clauses:
X – rules concerning dispute resolution, related to controversies arisen from and the contract and its execution, including conciliation and international arbitration.
13. Law No. 9,472, OF AUGUST 6th , 1997.
Provides for the organization of telecommunications services, the creation and functioning of an regulation organ and other institutional aspects, under the Constitutional Amendment No. 8, 1995.
SECTION II
Contract
Article 93. The concession contract shall indicate:
XV – the jurisdiction and the means to resolve disputes arisen from the contract outside of courts