Lei 9.307/96 em inglês

Presidência da República

Casa Civil

Subchefia para Assuntos Jurídicos

 

LEI Nº 9.307, DE 23 DE SETEMBRO DE 1996.

(Vide Lei nº 13.129, de 2015)* (Vigência)

Dispõe sobre a arbitragem.

O PRESIDENTE DA REPÚBLICA Faço saber que o Congresso Nacional decreta e eu sanciono a seguinte Lei:

Chapter I

General Provisions

Article 1. Those who are capable of entering into contracts may make use of arbitration to resolve conflicts regarding freely transferable property rights.

Paragraph 1. Direct and indirect public administration may use arbitration to resolve conflicts regarding transferable public property rights.

Paragraph 2. The competent authority or direct public administration entity that enters into arbitration agreements is the same entity that enters into agreements or transactions.

 Article 2. At the parties’ discretion, arbitration may be at law or in equity.

Paragraph 1. The parties may freely choose the rules of law that will be used in the arbitration, as long as their choice does not violate good morals and public policy.

Paragraph 2. The parties may also agree that the arbitration shall be conducted under general principles of law, customs, usages and the rules of international trade.

Paragraph 3. Arbitration that involves public administration will always be at law and will be subject to the principle of publicity.

 

Chapter II

The Arbitration Agreement and its Effects

Article 3. The interested parties may submit their disputes to arbitration by means of an arbitration agreement, which may be in the form of either an arbitration clause or an arbitration agreement.

 Article 4. An arbitration clause is an agreement by which the parties to a contract undertake to submit to arbitration any disputes that might arise with respect to that contract.

Paragraph 1. An arbitration clause must be in writing, and it may be inserted into the contract itself or into a separate document to which it refers.

Paragraph 2. In adhesion contracts, an arbitration clause will only be valid if the adhering party takes the initiative to initiate an arbitration proceeding or if it expressly agrees with its initiation, as long as it is in an attached written document or in boldface type, with a signature or special approval for that clause.

Paragraph 3. In a consumer relationship, established by means of an adhesion contract, the arbitration clause will only take effect if the adhering party takes the initiative to file an arbitration proceeding, or to expressly agree with its institution. (VETOED)

Paragraph 4. As long as an employee occupies or comes to occupy a position or function of an administrator or a director appointed pursuant to the by-laws, in individual labor contracts an arbitration clause may be agreed to, which will only enter into force if the employee takes the initiative to file an arbitration proceeding, or if the employee expressly agrees to an arbitration proceeding being filed. (VETOED)          

Article 5. If the arbitration clause makes reference to the rules of a particular arbitral institution or specialized entity, the arbitration shall commence and be conducted in accordance with such rules. The parties may also agree in the arbitration clause or in a separate document, the procedure for the commencement of arbitral proceedings.

Article 6. In the event of absence of provision as to the method of commencing the arbitration, the interested party shall notify the other party, either by mail or by any other means of communication, with confirmation of receipt, of its intention to commence arbitral proceedings, and to set up a date, time and place for the execution of the submission agreement.

Sole Paragraph: If the notified party fails to appear, or if it appears but refuses to sign the submission agreement, the other party may file a lawsuit as provided in Article 7 of this Law, before the judicial authority originally competent to hear the case.

Article 7. If there is an arbitration clause and there is an objection for the commencement of arbitration, the interested party may request that the other party be served with process to appear in court so that the submission agreement is drawn up. The court judge will designate a special hearing for this purpose.

Paragraph 1. The plaintiff will accurately define the subject matter of arbitration, including in its request the document that contains the arbitration clause.

Paragraph 2. If the parties show up at the hearing, the judge shall first try to bring the parties into a settlement. If this is not successful, the judge will lead the parties to a consensual submission agreement.

Paragraph 3. If the parties fail to agree on the terms of submission agreement, after hearing the party against whom the request is filed, the judge shall determine on the contents of the submission agreement, either at the hearing or within ten days therefrom, in accordance with the wording of the arbitration clause, taking into account the provisions of Articles 10 and 21 Paragraph 2 of this Law.

Paragraph 4. If the arbitration clause has no provision as to the appointment of arbitrators, the judge, after hearing the parties, shall make a determination, and is allowed to appoint a sole arbitrator to resolve the dispute.

Paragraph 5. If the plaintiff fails to appear at the hearing designated for drafting the submission agreement without showing good cause, the case will be dismissed without judgment on the merits.

Paragraph 6. If the defendant fails to attend the hearing, the judge, after hearing the plaintiff, shall be competent to draw up the contents of the submission agreement and to appoint a sole arbitrator.

Paragraph 7. The court ruling that grants the plaintiff’s request will be considered the submission agreement.

Article 8. An arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

Sole paragraph. The arbitrator has jurisdiction to decide ex officio or at the parties’ request, the issues concerning the existence, validity, and effectiveness of the arbitration agreement, as well as the contract containing the arbitration clause.

Article 9. The submission agreement is the judicial or extrajudicial agreement by which the parties submit an existing dispute to arbitration by one or more persons.

Paragraph 1. The judicial submission agreement shall be entered into by a written instrument registered within the dockets of the case before the court where the suit was filed.

Paragraph 2. An extrajudicial arbitration agreement shall be entered into by a private written instrument signed by two witnesses, or by a public notary.

 Article 10. The arbitration agreement must contain:

I – the name, profession, marital status and domicile of the parties;

II – the name, profession, and domicile of the arbitrator, or of the arbitrators, or, if applicable, the identification of the entity to which the parties have delegated the appointment of arbitrators;

III – the subject matter of the arbitration; and

IV – the place where the arbitration award will be rendered.

Article 11. The arbitration agreement may also contain:

I – place, or places, where the arbitration will take place;

II – the authorization for the arbitrator or arbitrators to judge for equity, if so agreed by the parties;

III – the deadline for submitting the arbitration award;

IV – the indication of the national law or of the corporate rules applicable to the arbitration, when so agreed by the parties;

V – the declaration of responsibility for the payment of fees and expenses with arbitration; and

VI – the fixing of the fees of the arbitrator, or of the arbitrators.

Sole paragraph. By setting up the arbitrator or arbitrators’ fees in the submission agreement, such document will be considered an enforceable extrajudicial instrument. In the absence of such provision, the arbitrator will request the court with original jurisdiction to hear the case to rule on the issue.

 Article 12. The arbitration agreement is terminated:

I – if any of the arbitrators is refused, before accepting the appointment, provided that the parties have expressly declared not to accept a substitute;

II – dying or unable to give their vote any of the arbitrators, provided that the parties expressly declare that they do not accept a substitute; and

III – The period referred to in art. 11, item III, provided that the interested party has notified the arbitrator, or the president of the arbitral tribunal, granting him the period of ten days for the delivery and presentation of the arbitral award.

Chapter III

The Arbitrators

Article 13. Any individual with legal capacity, who is trusted by the parties, may serve as arbitrator.

Paragraph 1. The parties will appoint one or more arbitrators, always an uneven number, and they may also appoint their respective alternates.

Paragraph 2. When the parties appoint an even number of arbitrators, the arbitrators are authorized to appoint an additional arbitrator. Failing such agreement, the parties shall request the State Court which originally would have had jurisdiction to hear the case to appoint such arbitrator, following to the extent possible, the procedure established in Article 7 of this Law.

Paragraph 3. The parties may mutually agree to set up the procedure for the appointment of arbitrators, or they may choose the rules of an arbitral institutional or specialized entity.

Paragraph 4. By mutual agreement, the parties may choose not to be bound by the provision of the rules of an arbitral institution or specialized entity that requires the appointment of a sole arbitrator, co-arbitrator, or chairman of the tribunal from the respective roaster of arbitrators. It is however preserved the arbitral institution’s control over the appointment of arbitrators. In the event of impasse and with multiparty arbitration, the respective applicable institutional rules shall be observed. If several arbitrators have been appointed they shall elect, by majority, the chairman of the arbitral tribunal. In the absence of an agreement, the eldest will be the chairman.

Paragraph 5. An arbitrator or the chairman of the arbitral tribunal will, if appropriate, appoint a secretary who may be one of the arbitrators.

Paragraph 6. In performing his duty, the arbitrator shall proceed with impartiality, independence, competence, diligence, and discretion.

Paragraph 7. An arbitrator or the arbitral tribunal may order the parties to advance the funds to cover expenses and services it may deem necessary.

 Article 14. Individuals somehow linked to the parties or to the submitted dispute, by any of the relationships that characterize the impediment or suspicion of judges, are prevented from serving as arbitrators and become subject, as the case may be and to the applicable extent, to the same duties and responsibilities incurred by court judges, as set up in the Code of Civil Procedure.

Paragraph 1. Prior to accepting the service, an individual appointed to serve as an arbitrator shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence.

Paragraph 2. The referee can only be refused for reasons that occurred after his appointment. It may, however, be refused on grounds prior to its appointment when:

  1. a) is not appointed, directly, by the party; or
  2. b) the reason for refusal of the arbitrator is known after his appointment.

 Article 15. The party who intends to challenge the arbitrator shall, pursuant to Article 20, present the respective motion either directly to the arbitrator or to the chairman of the arbitral tribunal, setting forth their reasons with the pertinent evidence.

Sole paragraph. If the motion is granted, the arbitrator will be removed and replaced in accordance with Article 16 of this Law.

Article 16. If an arbitrator withdraws prior to accepting the appointment, or if the arbitrator dies after acceptance, becomes unable to carry out his duties or is successfully challenged, the alternate indicated in the arbitration agreement, if any, will assume their position.

Paragraph 1. If no substitute has been appointed, the rules of the arbitral institution or specialized entity shall apply, if the parties have invoked them in the arbitration agreement.

Paragraph 2. In the absence of any arbitration agreement and if the parties fail to reach an agreement as to the appointment of the substitute arbitrator, the interested party shall proceed in the manner set forth in Article 7 of this Law, unless the parties have expressly stated in the arbitration agreement that they will not accept a substitute arbitrator.

 Article 17. By performing their service, or as a result thereof, the arbitrators shall be considered comparable to public officials for the purpose of criminal law.

 Article 18. An arbitrator is the judge in fact and in law, and his award is not subject to appeal or recognition by judicial court.

Chapter IV

Arbitration Proceedings

Article 19. The arbitration shall be deemed to be commenced when the appointment is accepted by the sole arbitrator or by all of the arbitrators if there is more than one.

Paragraph 1. Once the arbitration has been commenced, and if the arbitrator or arbitration tribunal concludes there is a need to clarify a matter set forth in the arbitration agreement, an addendum will be drafted together with the parties, executed by all, and will become an integral part of the arbitration agreement.

Paragraph 2. The commencement of arbitration tolls the statute of limitations, retroactive to the date of the filing of the request for arbitration, even if the arbitration is terminated due to the absence of jurisdiction.

Article 20. The party wishing to raise issues related to the jurisdiction, suspicion or impediment of an arbitrator or arbitrators, or as to the nullity, invalidity or ineffectiveness of the arbitration agreement, must do so at the first opportunity, after the commencement of the arbitration.

Paragraph 1. When the challenge of suspicion or impediment is accepted, the arbitrator shall be replaced in accordance with Article 16 of this Law; and if the lack of jurisdiction of the arbitrator or of the arbitral tribunal, as well as the nullity, invalidity or ineffectiveness of the arbitration agreement, is confirmed, the parties shall revert to the Judicial Authority competent to rule on the matter.

Paragraph 2. When the challenge is not accepted, the arbitration shall proceed normally, subject, however, to review of that decision by the competent Judicial Authority if a lawsuit referred to in Article 33 of this Law is filed.

Article 21. The sole arbitrator or the arbitral tribunal shall comply with the procedure agreed upon by the parties in the arbitration agreement, which may refer to the rules of an arbitral institution or specialized entity, it being possible for the parties to empower the sole arbitrator or the arbitral tribunal to regulate the procedure.

Paragraph 1. In the absence of any provisions on the procedure, the sole arbitrator or the arbitral tribunal shall conduct the arbitration in such a manner it considers appropriate.

Paragraph 2. The principles of due process of law, equal treatment of the parties, impartiality of the arbitrator and freedom of decision shall always be respected.

Paragraph 3. The parties may be represented by legal counsel, and the right to appoint someone to represent them or to assist them in the arbitration proceeding will always be respected.

Paragraph 4. The sole arbitrator or the arbitral tribunal shall, at the commencement of the procedure, attempt to reconcile the parties, applying, to the extent possible, Article 28 of this Law.

 Article 22. The sole arbitrator or the arbitral tribunal, either ex officio or at the parties’ request, may hear parties’ and witnesses’ testimony and may rule on the production of expert evidence, and other evidence deemed necessary.

Paragraph 1. Testimony of the parties and witnesses shall be taken at places, dates and hours previously communicated in writing to the parties, and a written record of such testimony shall be signed by the party or witness, or at his request, also by the arbitrators.

Paragraph 2. If a party fails, without good cause, to comply with a request to render personal testimony, the arbitrator or the arbitral tribunal shall give due consideration to such behaviour when issuing the award; and if a witness, under the same conditions, is absent, the arbitrator or the chairman of the arbitral tribunal may request the State Court to compel the appearance of the defaulting witness, upon evidence of the existence of an arbitration agreement.

Paragraph 3. Default by a party shall not prevent the arbitral award from being made.

Paragraph 4. With the exception of the provisions of Paragraph 2, if coercive or injunctive orders become necessary, the arbitrators may request them from the Judicial Authority originally competent to rule on the case. (REVOKED)

Paragraph 5. If an arbitrator is replaced during the arbitral procedure, the alternate, at his discretion, may determine what evidence will be repeated.

CHAPTER IV-A

PROVISIONAL MEASURES OF PROTECTION AND URGENT RELIEF

Article 22-A. Prior to commencing the arbitration, the parties may seek provisional measures of protection and urgent relief from a judicial court.

Sole paragraph. The efficacy of the provisional measure granted by the judicial court shall cease if the interested party does not file the request for arbitration within 30 (thirty) days from the date the respective decision takes effect.

 Article 22-B. Once arbitration has been commenced, the arbitrators will have competence for maintaining, modifying or revoking the provisional or urgent measures granted by the Judicial Authority.

Sole paragraph. If arbitration proceedings have already been commenced, the request for the injunctive and urgent relief will be directly addressed to the arbitrators.

CHAPTER IV-B

ARBITRATION LETTER

Article 22-C. An arbitrator or the arbitral tribunal may issue an arbitration letter so that the judicial court offers assistance or imposes compliance, in the area of their territorial jurisdiction, of an act requested by the arbitrator.

Sole paragraph. In compliance with the arbitration letter, the respective court proceedings will be under seal, as long as the confidentiality set forth in the arbitration is verified.

Chapter V

The Arbitration Award

Article 23. The arbitration award shall be made within the time frame set up by the parties. If no timing has been determined, the arbitral award shall be made within six months from the date of the commencement of the arbitration or from the date of the substitution of an arbitrator.

Paragraph 1. The arbitrators may render partial awards.

Paragraph 2. The parties and the arbitrators, by mutual agreement, may extend the timing for the delivery of the final award.

 Article 24. The arbitral award shall be in writing.

Paragraph 1. If there are several arbitrators, the decision shall be made by majority vote. Failing majority determination, the opinion of the chairman of the arbitral tribunal shall prevail.

Paragraph 2. A dissenting arbitrator may, if he so wishes, render a separate decision.

Article 25. – If, during the course of the proceedings, a dispute arises regarding rights not freely transferable, and once convinced that the final decision may depend thereon, the arbitrator or the arbitral tribunal may refer the parties to the Judicial Authority that has jurisdiction, ordering a stay of the arbitral proceedings. (REVOKED)

Sole paragraph. The arbitration shall recommence after the preliminary matter is resolved and evidence has been entered into the legal proceedings of the final non-appealable judgment thereon. (REVOKED)

 Article 26. The following are mandatory requirements of the arbitration award:

I – the report, which shall contain the names of the parties and a summary of the dispute;

II – the grounds of the decision, where the issues of fact and law will be analyzed, expressly mentioning whether the arbitrators judged for equity;

III – the arrangement, in which the arbitrators will resolve the questions submitted to them and establish the deadline for compliance with the decision, if applicable; and

IV – the date and place where it was issued.

Sole paragraph. The arbitral award shall be signed by the arbitrator or by all the arbitrators. If one or more arbitrators is unable to or refuses to sign the award, the chairman of the arbitral tribunal shall certify such fact.

Article 27. The arbitral award shall decide on the parties’ duties regarding costs and expenses for the arbitration, as well as on any amount resulting from bad faith conduct, if applicable, complying with the provisions of the arbitration agreement, if any.

Article 28. If the parties reach a settlement during the course of the arbitral proceedings, the arbitrator or arbitral tribunal may, at the parties’ request, render an arbitral award declaring such fact, containing the requirements provided for in Article 26 of this Law.

 Article 29. The rendering of the arbitral award marks the end of the arbitration; the sole arbitrator or the chairman of the arbitral tribunal must send a copy of the decision to the parties by mail or by other means of communication, with confirmation receipt, or through direct delivery to the parties, with return receipt.

Article 30. Within five (5) days from the receipt of the notice or personal knowledge of the award, unless otherwise agreed by the parties, the interested party may, upon notice to the other party, request the arbitrator or the court arbitration that: (Drafting provided by Law No. 13,129, of 2015) (Term)

I – Correct any material error of the arbitration award;

II – Clarify any obscurity, doubt or contradiction of the arbitral award, or pronounce on the omitted point in respect of which the decision should be manifested.

Sole paragraph. The arbitrator or the arbitral tribunal will decide within 10 (ten) days, or within the timeframe agreed to by the parties, the amendment of the arbitral award, which shall be communicated to the parties in accordance with Article 29.

Article 31. The arbitral award shall have the same effect on the parties and their successors as a judgement rendered by the Judicial Authority and, if it includes an obligation for payment, it shall constitute an enforceable instrument thereof.

Article 32. The award is null and void if:

I – the commitment is void; (VETOED)

I – the arbitration agreement is void;

II – emanated from those who is not able to act as an arbitrator;

III – does not contain the requirements of article 26 of this Law;

IV – is issued outside the limits of the arbitration agreement;

V – not to decide all the litigation submitted to arbitration;(REVOKED)

VI – proven that it was pronounced for malfeasance, graft, or passive corruption;

VII – rendered out of time, respecting the provisions of article 12, item III, of this Law; and

VIII – the principles referred to in article 21, paragraph 2, of this Law.

Article 33. The interested party may request to the competent Judicial Authority to declare the arbitral award null in the cases set forth in this law.

Paragraph 1. A request for the declaratory nullity of the arbitral award, whether partial or final, will comply with the rules of cognizance procedure set up in the Law No 5869 of January 11, 1973 (Code of Civil Procedure), and it must be filed within 90 (ninety) days after receipt of notification of the respective award, whether partial or final, or of the decision on a motion for clarification.

Paragraph 2. It the request is granted, it will set the arbitral award aside, and in the cases of Article 32, it will rule, if applicable, that the arbitrator or the arbitral tribunal issues a new ruling.

Paragraph 3. A declaration of nullity of the arbitral award may also be raised by means of a debtor’s defense, according to Article 475-L et seq. of Law No. 5869 of January 11, 1973 (Code of Civil Procedure), in case court enforcement proceedings are filed.

Paragraph 4. The interested party may file a request for the rendering of a supplemental arbitral award if the arbitrator fails to rule on all matters submitted to arbitration. (NR)

Chapter VI

Recognition and Enforcement of Foreign Arbitral Awards

Article 34. A foreign arbitral award shall be recognized or enforced in Brazil in accordance with international treaties effective in the internal legal system, or, in its absence, in strict accordance with the terms of this Law.

Sole paragraph. A foreign award is considered to be an award rendered outside the national territory.

Article 35. In order to be recognized or enforced in Brazil, a foreign arbitral award is only subject to recognition by the Superior Court of Justice (STJ).

 Article 36. The provisions of Articles 483 and 484 of the Code Civil Procedure shall apply, where applicable, to the request for recognition or enforcement of a foreign arbitral award.

Article 37. The recognition of a foreign arbitral award will be requested by the interested party, and the initial petition must contain the indications of the procedural law, according to art. 282 of the Code of Civil Procedure, and be instructed, necessarily, with:

I – the original of the arbitration award or a duly certified copy, authenticated by the Brazilian consulate and accompanied by an official translation;

II – the original of the arbitration agreement or duly certified copy, accompanied by an official translation.

Article 38. Recognition or enforcement of a foreign arbitral award may only be denied when the defendant demonstrates that:

I – the parties to the arbitration agreement were incapable;

II – the arbitration agreement was not valid according to the law to which the parties submitted it, or, in the absence of indication, by the law of the country where the arbitration award was made;

III – has not been notified of the appointment of the arbitrator or of the arbitration procedure, or has violated the adversarial principle, making the full defense impossible;

IV – the arbitration award was issued outside the limits of the arbitration agreement, and it was not possible to separate the excess part from that submitted to arbitration;

V – the institution of the arbitration is not in accordance with the arbitration commitment or arbitration clause;

VI – the arbitral award has not yet become binding on the parties, has been annulled, or has been suspended by a judicial body of the country in which the award is rendered.

 Article 39. The approval for the recognition or execution of the foreign arbitral award will also be denied if the Superior Court of Justice (STJ) finds that:

I – according to Brazilian law, the subject matter of the litigation is not susceptible of being resolved by arbitration;

II – the decision offends national public policy.

Sole paragraph. The service with arbitral process of a party that resides or is domiciled in Brazil, pursuant to the arbitration agreement or to the procedural law of the country in which the arbitration took place, including mail with confirmation of receipt, shall not be considered as in violation of Brazilian public policy, provided the Brazilian party is granted proper time to present its defense.

Article 40. The denial of the request for recognition or enforcement of a foreign arbitral award based on formal defects does not prevent the interested party from renewing the request once such defects are properly cured.

Chapter VII

Final dispositions

Article 41. Articles. 267, subsection VII; 301, subsection IX; and 584, item III, of the Code of Civil Procedure shall be replaced by the following:

“Article. 267 ………………………………………. ………………………

VII – by the arbitration agreement; ”

“Article. 301 ………………………………………. ………………………

IX – arbitration agreement; ”

“Article. 584 ………………………………………. (I.e.

III – the arbitration award and the recognition of transaction or conciliation; ”

Article 42. Art. 520 of the Code of Civil Procedure will now have one more item, with the following wording:

“Art. 520 ………………………………………. (I.e.

VI – judge the request for an arbitration institution to be appropriate. ”

Article 43. This Law shall come into force sixty days after the date of its publication.

Article 44. The articles. 1.037 to 1.048 of Law No. 3.071 of January 1st, 1916, Brazilian Civil Code; the articles. 101 and 1.072 to 1.102 of Law No. 5.869 of January 11th, 1973, Code of Civil Procedure; and other provisions to the contrary.

          Brasília, 23 de setembro de 1996; 175º da Independência e 108º da República.

FERNANDO HENRIQUE CARDOSO
Nelson A. Jobim

Este texto não substitui o publicado no DOU de 24.9.1996

 

Lawyer licensed to practice law in Brazil, New York, Portugal and Florida Foreign Legal Consultant. Partner with Gomm & Smith, Miami, FL. USA. Any inaccuracies in the text are my sole responsibility.

Law n. 11.232/2005 has brought some changes in the Code of Civil Procedure on the way an arbitral award is enforced (article 475-N, paragraph 2) as well as to the way the losing party in the arbitration may file a motion to set aside the award. (article 475-L and 475-M)

Constitutional Amendment n. 45/2004 has shifted the competence to hear request for recognition and enforcement of foreign arbitral award from Brazilian Supreme Court to Brazilian Superior Court of Justice.

* LAW No. 13.129 of MAY 26, 20151

Alters Law No. 9307 of September 23, 1996, and Law No. 6404 of December 15, 1976, to expand the scope of application of arbitration, dealing with the appointment of arbitrators before arbitral institutions, tolling the statute of limitations by the filing of the request for arbitration, granting of provisional and urgent measures of protection in cases of arbitration, arbitration letter, and the arbitral award, and it revokes provisions of Law No, 9307 of September 23, 1996.