The Brazilian Justice Counsel published on September 29, 2021 a decision regulating arbitral letters, which are the instruments foreseen in Brazilian Arbitration Act and in the Brazilian Code of Civil Procedure for communications between arbitral tribunals and judicial courts. Although arbitrators are equivalent to judges, they do not have powers to issue certain coercive orders, such as to freeze bank accounts, seize assets or compel a witness to appear in a hearing. For such coercive measures, the arbitrator will have to request judicial court assistance, which is effected through the remittance of such “arbitral letter” from the arbitrators to the judge.
Such regulation requires any arbitral letter to be issued by an arbitrator to contain: (i) identification of the arbitrator or members of tribunal tribunal, who shall sign the document; (ii) indication of the court of the Judiciary to which the decision is addressed; (iii) description of the order whose enforcement the arbitrators seek; (iv) reference number of the arbitration and, in case of institutional proceeding, the name of the arbitral institution; and (v) name of the parties.
The arbitrators shall attach to the arbitral letter (i) the agreement to arbitrate, (ii) proof that the they were vested in the office and have powers to issue the decision, (iii) full copy of the party’s pleading and the decision whose enforcement is requested, (iv) power of attorney; and (v) in case confidentiality is requested, proof of the confidentiality covenant.
In case the arbitration is confidential, the files of the arbitral letter shall be conducted “in camera”, without being available to the public. This is relevant as certain judges of the State Court of São Paulo sometimes allow the files of lawsuits involving confidential arbitrations to be available to the public, which will not take place as to arbitral letters subject to this regulation.
The administrative bodies of the Judiciary can issue regulation in the sense that lawsuits related to arbitration should always go to certain specific judicial courts, so that they become specialized in the matter.
Although this regulation did not implement any radical change on the legal framework of the arbitral letter, it is important to provide further legal certainty and to foster its use. The arbitral letter is a very valuable tool to give efficiency to the arbitration, as the tribunal is able to quickly obtain court assistance to enforce its decision, thereby making Brazil an even more friendly seat for arbitral proceedings.
This article was contributed by Trench Rossi Watanabe, a Brazilian firm. Trench Rossi Watanabe and Baker McKenzie have executed a strategic cooperation agreement for consulting on foreign law.