The article analyzes the procedural rules concerning class arbitration, elaborating processes for adapting the procedures relating to individual arbitration for class arbitration, as well as the rules themselves concerning class actions. The creation of this system of procedures aims to contribute theoretically to the field, but also to establish some guidelines regarding the practical application of the figure. The article deals with the main procedural aspects elaborated and/or adapted and, from that, presents theoretical-propositional conclusions when identifying and discussing conceptually about the main procedural aspects to be potentially applied in the scope of class arbitrations. Arbitration; Public Administration; state-owned companies; arbitrability.
{"title":"Regras procedimentais da arbitragem coletiva no âmbito dos direitos dos investidores no mercado de ações: contexto, undamentos e adaptações procedimentais","authors":"Camilo Zufelato","doi":"10.54648/rba2021030","DOIUrl":"https://doi.org/10.54648/rba2021030","url":null,"abstract":"The article analyzes the procedural rules concerning class arbitration, elaborating processes for adapting the procedures relating to individual arbitration for class arbitration, as well as the rules themselves concerning class actions. The creation of this system of procedures aims to contribute theoretically to the field, but also to establish some guidelines regarding the practical application of the figure. The article deals with the main procedural aspects elaborated and/or adapted and, from that, presents theoretical-propositional conclusions when identifying and discussing conceptually about the main procedural aspects to be potentially applied in the scope of class arbitrations.\u0000Arbitration; Public Administration; state-owned companies; arbitrability.","PeriodicalId":422222,"journal":{"name":"Revista Brasileira de Arbitragem","volume":"494 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134109949","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Arbitrations involving Brazilian State Entities still give rise to a fertile field to academic research, so that the present essay intends to examine issues that arise when concretely applying objective arbitrability criteria to assess whether a determined act practiced by a State Entity can or cannot be judged in arbitration. In order to achieve that purpose, the adoption of the dichotomy between acta jure gestionis and acta jure imperii as the criterion to assess objective arbitrability is justified. Based on that, the State prerogatives set forth in art. 104 of Act no. 14.133/2021 are individually examined, as well as their respective provisions in Act no. 13.303/2016, concluding whether each one of them fulfills or not the requirements of objective arbitrability. The analysis encompasses not only legal scholars’ books and essays, but also relevant Brazilian case law on the issue. Finally, the conclusions recall the current status of the Brazilian law on objective arbitrability regarding conflicts involving State Entities and addresses some comments de lege ferenda. State Entities; arbitration; objective arbitrability; state prerrogatives; acta jure gestionis; acta jure imperii.
{"title":"Arbitrabilidade objetiva e administração pública: quais matérias podem ser arbitradas?","authors":"Adriana Regina Sarra De Deus","doi":"10.54648/rba2021042","DOIUrl":"https://doi.org/10.54648/rba2021042","url":null,"abstract":"Arbitrations involving Brazilian State Entities still give rise to a fertile field to academic research, so that the present essay intends to examine issues that arise when concretely applying objective arbitrability criteria to assess whether a determined act practiced by a State Entity can or cannot be judged in arbitration. In order to achieve that purpose, the adoption of the dichotomy between acta jure gestionis and acta jure imperii as the criterion to assess objective arbitrability is justified. Based on that, the State prerogatives set forth in art. 104 of Act no. 14.133/2021 are individually examined, as well as their respective provisions in Act no. 13.303/2016, concluding whether each one of them fulfills or not the requirements of objective arbitrability. The analysis encompasses not only legal scholars’ books and essays, but also relevant Brazilian case law on the issue. Finally, the conclusions recall the current status of the Brazilian law on objective arbitrability regarding conflicts involving State Entities and addresses some comments de lege ferenda.\u0000State Entities; arbitration; objective arbitrability; state prerrogatives; acta jure gestionis; acta jure imperii.","PeriodicalId":422222,"journal":{"name":"Revista Brasileira de Arbitragem","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114327226","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The successful crash test of competence-competence in consumer protection. France. Cour de cassation. Première Chambre Civile. PWC v. Lefebvre, Arrêt nº 556, 18-19.241. J. 30.09.2020","authors":"Sebastián Partida","doi":"10.54648/rba2021048","DOIUrl":"https://doi.org/10.54648/rba2021048","url":null,"abstract":"","PeriodicalId":422222,"journal":{"name":"Revista Brasileira de Arbitragem","volume":"136 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121038620","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
João Luiz Horta Neto, Lilian Elizabeth Menezes Bertolani
The sanitary crisis and the necessity of social isolation impacted directly the arbitration practice, proceedings commenced to be conducted electronically, without the realization of in person acts. In this scenario, doubts and questions concerning the conduct of virtual hearings and the taking of oral evidence have risen. This paper examines this situation, indicating solutions found by the arbitration practice and presents the data of a research conducted with the users of the Chamber of Conciliation, Mediation and Arbitration Ciesp/Fiesp concerning their experience and impressions with virtual hearings in the year of 2020. Arbitration proceedings; virtual hearings; users’ experiences.
{"title":"Audiências virtuais e a arbitragem em tempos de pandemia: perspectivas para o futuro","authors":"João Luiz Horta Neto, Lilian Elizabeth Menezes Bertolani","doi":"10.54648/rba2021043","DOIUrl":"https://doi.org/10.54648/rba2021043","url":null,"abstract":"The sanitary crisis and the necessity of social isolation impacted directly the arbitration practice, proceedings commenced to be conducted electronically, without the realization of in person acts. In this scenario, doubts and questions concerning the conduct of virtual hearings and the taking of oral evidence have risen. This paper examines this situation, indicating solutions found by the arbitration practice and presents the data of a research conducted with the users of the Chamber of Conciliation, Mediation and Arbitration Ciesp/Fiesp concerning their experience and impressions with virtual hearings in the year of 2020.\u0000Arbitration proceedings; virtual hearings; users’ experiences.","PeriodicalId":422222,"journal":{"name":"Revista Brasileira de Arbitragem","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128840632","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Notas sobre o 20º Congresso Internacional de Arbitragem do CBAr – “Arbitragem e Segurança Jurídica”","authors":"Maúra Guerra Polidoro, Thaina de Paula Carvalho","doi":"10.54648/rba2021052","DOIUrl":"https://doi.org/10.54648/rba2021052","url":null,"abstract":"","PeriodicalId":422222,"journal":{"name":"Revista Brasileira de Arbitragem","volume":"5 4","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113979345","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The objective of this paper is to provide an analysis concerning some criteria adopted by Brazilian courts in matters of arbitrability of disputes involving state-owned companies. To this end, I initially examine the characteristics of the legal regime of state-owned companies. Then, the evolution of the jurisprudence of the Federal Court of Accounts and the Superior Court of Justice is examined, with the aim of identifying the main controversial issues regarding the use of arbitration by public agencies. In the last part, the article focuses on three criteria adopted by Brazilian case law to deny the arbitrability of disputes with state-owned companies: a) the distinction between state-owned companies providing public services and those exploiting economic activities; b) the discrimination between main and support activities of the state-owned companies; and c) the extension of the statutory arbitration clause to the controlling shareholder of the state-owned company. In the end, it is concluded that arbitration is an adequate and necessary instrument for the persecution of public interests that legitimizes the State’s entrepreneurship, although its consolidation still demands the overcoming of traditional dogmas of the Brazilian administrative law that are incompatible with the business ends of the state-owned companies. Arbitration; Public Administration; state-owned companies; arbitrability.
{"title":"Arbitrabilidade dos litígios com empresas estatais à luz da jurisprudência do TCU e do STJ","authors":"Luiz Eduardo Altenburg De Assis","doi":"10.54648/rba2021029","DOIUrl":"https://doi.org/10.54648/rba2021029","url":null,"abstract":"The objective of this paper is to provide an analysis concerning some criteria adopted by Brazilian courts in matters of arbitrability of disputes involving state-owned companies. To this end, I initially examine the characteristics of the legal regime of state-owned companies. Then, the evolution of the jurisprudence of the Federal Court of Accounts and the Superior Court of Justice is examined, with the aim of identifying the main controversial issues regarding the use of arbitration by public agencies. In the last part, the article focuses on three criteria adopted by Brazilian case law to deny the arbitrability of disputes with state-owned companies: a) the distinction between state-owned companies providing public services and those exploiting economic activities; b) the discrimination between main and support activities of the state-owned companies; and c) the extension of the statutory arbitration clause to the controlling shareholder of the state-owned company. In the end, it is concluded that arbitration is an adequate and necessary instrument for the persecution of public interests that legitimizes the State’s entrepreneurship, although its consolidation still demands the overcoming of traditional dogmas of the Brazilian administrative law that are incompatible with the business ends of the state-owned companies.\u0000Arbitration; Public Administration; state-owned companies; arbitrability.","PeriodicalId":422222,"journal":{"name":"Revista Brasileira de Arbitragem","volume":"407 10","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114008000","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Memórias do Professor J. Martin Hunter, um grande mestre, mentor e amigo","authors":"Renan Frediani Torres Peres","doi":"10.54648/rba2021041","DOIUrl":"https://doi.org/10.54648/rba2021041","url":null,"abstract":"","PeriodicalId":422222,"journal":{"name":"Revista Brasileira de Arbitragem","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121383264","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article aims to discuss multi-tiered dispute resolution clauses, including setting out some of its main examples and analyzing, more specifically, the med-arb multi-tiered dispute resolution clause, which provides for mediation proceedings before the commencement of the arbitration. Some of the main effects of the med-arb clauses are also discussed, such as the effects of its non-observance, the possibility of requiring an interim relief before the mediation and the conservation of its effects during the mediation proceeding, and the possibility of setting aside an award issued in an arbitral proceeding that did not observe the previous mandatory mediation requirement. Arbitration; mediation; multi-tiered clauses; med-arb.
{"title":"As Cláusulas Escalonadas no Ordenamento Jurídico Brasileiro: Breves Considerações sobre as Cláusulas Med-Arb e Seus Efeitos","authors":"Marina Leal Galvão Maia","doi":"10.54648/rba2021044","DOIUrl":"https://doi.org/10.54648/rba2021044","url":null,"abstract":"This article aims to discuss multi-tiered dispute resolution clauses, including setting out some of its main examples and analyzing, more specifically, the med-arb multi-tiered dispute resolution clause, which provides for mediation proceedings before the commencement of the arbitration. Some of the main effects of the med-arb clauses are also discussed, such as the effects of its non-observance, the possibility of requiring an interim relief before the mediation and the conservation of its effects during the mediation proceeding, and the possibility of setting aside an award issued in an arbitral proceeding that did not observe the previous mandatory mediation requirement.\u0000Arbitration; mediation; multi-tiered clauses; med-arb.","PeriodicalId":422222,"journal":{"name":"Revista Brasileira de Arbitragem","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115188119","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Arbitragem de investimentos e meio ambiente Autora: Naíma Perrella Milani","authors":"Lucas de Medeiros Diniz","doi":"10.54648/rba2021053","DOIUrl":"https://doi.org/10.54648/rba2021053","url":null,"abstract":"","PeriodicalId":422222,"journal":{"name":"Revista Brasileira de Arbitragem","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128940628","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The legal norms that govern the applicable law to disputes submitted to the International Centre for the Settlement of Investment Disputes (ICSID) can be considered a system in progress. Although the rule contained in Article 42(1) of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, signed in Washington in 1969, seems simple, case law and scholarship on the subject has been through recent transformation, including the role of international law and the power of the Tribunal to determine the applicable law. This article will address the most relevant aspects on the issues pertaining to conflict of laws in the ICSID environment, including the role of party autonomy and its limitations, and the interaction between municipal and international law in the determination of the law applicable to an Investor-State arbitration under the auspices of ICSID. Investor-State arbitration; private international law; party autonomy.
{"title":"System in progress: applicable law and the icsid Convention","authors":"Bruno Barreto De Azevedo Teixeira","doi":"10.54648/rba2021046","DOIUrl":"https://doi.org/10.54648/rba2021046","url":null,"abstract":"The legal norms that govern the applicable law to disputes submitted to the International Centre for the Settlement of Investment Disputes (ICSID) can be considered a system in progress. Although the rule contained in Article 42(1) of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, signed in Washington in 1969, seems simple, case law and scholarship on the subject has been through recent transformation, including the role of international law and the power of the Tribunal to determine the applicable law. This article will address the most relevant aspects on the issues pertaining to conflict of laws in the ICSID environment, including the role of party autonomy and its limitations, and the interaction between municipal and international law in the determination of the law applicable to an Investor-State arbitration under the auspices of ICSID.\u0000Investor-State arbitration; private international law; party autonomy.","PeriodicalId":422222,"journal":{"name":"Revista Brasileira de Arbitragem","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129591399","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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