Arbitral Letters In Brazil And The Regulation Of The National Council Of Justice ('CNJ')

• Published date: 14 December 2021
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Civil Law
• Law Firm: Fonseca E Salles Lima
• Author: Mr Rodrigo Garcia Da Fonseca and Bruno Sant'Anna Fucci

Arbitration and the Judiciary

Arbitration can be used in Brazil for the settlement of any disputes related to patrimonial and disposable rights of the contracting parties. Once an arbitration clause is agreed on, parties delegate the resolution of disputes arising out of that legal relationship to an arbitral tribunal (positive effect of the arbitration agreement); at the same time, they deprive the Judiciary of its natural jurisdiction over that conflict (negative effect of the arbitration agreement).

Unlike judicial authorities, however, arbitrators do not have coercive powers. Therefore, when their orders are not complied with spontaneously, it may be necessary to request the aid of the Judiciary to implement concrete measures of enforcement. The National Council of Justice ('CNJ'), the body responsible for the oversight of the Judiciary in Brazil, has been working for some time on different fronts to facilitate the interchange between arbitration and the Judiciary, having this indispensable cooperation in sight. A recent example is the regulation on the so-called arbitral letters

Resolutions of the National Council of Justice ('CNJ')

On October 27th, 2020, the CNJ published Resolution n. 350¹, regulating the topic of national judicial cooperation, with the aim of improving the administration of justice, including the speed and effectiveness of national jurisdiction. The Resolution was initially directed to the judicial bodies, including the Public Prosecutor's Office, the Brazilian Bar Association, the Public or Defense Attorneys (see Article 16), as a normative attempt to strengthen inter-institutional cooperation.

More recently, on September 29th, 2021, the CNJ published Resolution n. 421², regulating the national judicial cooperation specifically on the topic of arbitration. Pursuant to its Article 1, Sole Paragraph, arbitrators, arbitral tribunals, and arbitral institutions were added alongside the aforementioned institutions, being expressly contemplated by the guidelines of the previous CNJ Resolution. In other words, as per CNJ Resolution n. 421, the framework established by previous CNJ Resolution n. 350 became also applicable to arbitral matters (see Article 16, item VI), providing for an additional layer of protection to this ADR method.

The recent CNJ Resolution n. 421 also treats in greater detail the requirements and certain procedural aspects of the arbitral letter. The arbitral letter is provided for in Article 22-C of the Brazilian...