Brazil, Superior Tribunal de Justiça (Superior Court of Justice)
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Brazil / 19 November 2014 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Cassio Computer Co., Ltd. v. Eletrônicos Prince Representação Ind. Com. e Exp. Prod. em Geral Ltda. and other / Challenged Foreign Award 10.643
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 19 November 2014 Parties Cassio Computer Co., Ltd. v. Eletrônicos Prince Representação Ind. Com. e Exp. Prod. em Geral Ltda. and other Case number Challenged Foreign Award 10.643 Applicable NYC Provisions IV | V Source http://www.stj.jus.br (official website of the Superior Tribunal de Justiça)
Languages Portuguese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4757&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 19 November 2014 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Weil Brothers Contton Inc. v. Agropecuária Basso Ltda. / Challenged Foreign Award 3.892
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 19 November 2014 Parties Weil Brothers Contton Inc. v. Agropecuária Basso Ltda. Case number Challenged Foreign Award 3.892 Applicable NYC Provisions IV | V Source http://www.stj.jus.br (official website of the Superior Tribunal de Justiça)
Languages Portuguese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4755&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 01 October 2014 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Helsingborgs IF v. Otto Cracco & Behling Ltda. – Empresa de Pequeno Porte / Challenged Foreign Award 10.658
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 01 October 2014 Parties Helsingborgs IF v. Otto Cracco & Behling Ltda. – Empresa de Pequeno Porte Case number Challenged Foreign Award 10.658 Applicable NYC Provisions IV | V Source http://www.stj.jus.br (official website of the Superior Tribunal de Justiça)
Languages Portuguese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4751&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 20 August 2014 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Newedge USA LLC v. Manoel Fernando Garcia / Challenged Foreign Award 5.692
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 20 August 2014 Parties Newedge USA LLC v. Manoel Fernando Garcia Case number Challenged Foreign Award 5.692 Applicable NYC Provisions V Source http://www.stj.jus.br (official website of the Superior Tribunal de Justiça)
Languages Portuguese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4750&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 01 July 2014 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Russkaya Kohza – Companhia Acionária Fechada v. Courama Comércio e Representações Ltda. – Microempresa / Challenged Foreign Award 9.502
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 01 July 2014 Parties Russkaya Kohza – Companhia Acionária Fechada v. Courama Comércio e Representações Ltda. – Microempresa Case number Challenged Foreign Award 9.502 Applicable NYC Provisions V | V(1) | V(1)(b) Source http://www.stj.jus.br (official website of the Superior Tribunal de Justiça)
Languages Portuguese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4749&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 21 May 2014 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / CIMC Raffles Offshore Limited and Yantai CIMC Raffles Ofshore Limited v. Schahin Holding S.A. and others / Challenged Foreign Award 9.880
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 21 May 2014 Parties CIMC Raffles Offshore Limited and Yantai CIMC Raffles Ofshore Limited v. Schahin Holding S.A. and others Case number Challenged Foreign Award 9.880 Applicable NYC Provisions V Source http://www.stj.jus.br (official website of the Superior Tribunal de Justiça)
Languages Portuguese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4748&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 21 May 2014 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Tristao Trading (Panama) S.A. v. Naumann Gepp Comercial e Exportadora Ltda / Challenged Foreign Award 9.714
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 21 May 2014 Parties Tristao Trading (Panama) S.A. v. Naumann Gepp Comercial e Exportadora Ltda Case number Challenged Foreign Award 9.714 Applicable NYC Provisions V Source http://www.stj.jus.br (official website of the Superior Tribunal de Justiça)
Languages Portuguese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4747&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 18 December 2013 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Construcciones y Auxiliar de Ferrocarriles S.A. and CAF Brasil Indústria e Comércio S.A. v. Supervia Concessionária de Transporte Ferroviário S.A. / Challenged Foreign Award 2.410
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 18 December 2013 Parties Construcciones y Auxiliar de Ferrocarriles S.A. and CAF Brasil Indústria e Comércio S.A. v. Supervia Concessionária de Transporte Ferroviário S.A. Case number Challenged Foreign Award 2.410 Applicable NYC Provisions V Source http://www.stj.jus.br (official website of the Superior Tribunal de Justiça)
Languages Portuguese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4745&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 20 November 2013 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Paladin PM Holmes Brazil Investors LLC v. Molnar Construtora e Incorporadora Ltda. / Challenged Foreign Award 8.847
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 20 November 2013 Parties Paladin PM Holmes Brazil Investors LLC v. Molnar Construtora e Incorporadora Ltda. Case number Challenged Foreign Award 8.847 Source http://www.stj.jus.br (official website of the Superior Court of Justice)
Languages Portuguese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4952&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 20 November 2013 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Paladin PM Holmes Brazil Investors LLC v. Molnar Construtora e Incorporadora Ltda / SEC 8.847
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 20 November 2013 Parties Paladin PM Holmes Brazil Investors LLC v. Molnar Construtora e Incorporadora Ltda Case number SEC 8.847 Source http://www.stj.jus.br (official website of the Superior Tribunal de Justiça)
Languages Portuguese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3835&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 12 November 2013 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Inepar S.A. Indústria e Construções v. Itiquira Energética S.A. / Special Appeal 1.389.763
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 12 November 2013 Parties Inepar S.A. Indústria e Construções v. Itiquira Energética S.A. Case number Special Appeal 1.389.763 Source http://www.stj.jus.br (official website of the Superior Tribunal de Justiça)
Languages Portuguese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4956&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 02 October 2013 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Olam International Ltd. v. Sedeni Lucas Locks / Challenged Foreign Award 6.761
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 02 October 2013 Parties Olam International Ltd. v. Sedeni Lucas Locks Case number Challenged Foreign Award 6.761 Applicable NYC Provisions V Source http://www.stj.jus.br (official website of the Superior Tribunal de Justiça)
Languages Portuguese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4742&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 07 August 2013 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Keytrade AG v Ferticitrus Indústria e Comércio de Fertilizantes Ltda. / SEC 4.024
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 07 August 2013 Parties Keytrade AG v Ferticitrus Indústria e Comércio de Fertilizantes Ltda. Case number SEC 4.024 Source http://www.stj.jus.br (Official website of the Superior Tribunal de Justiça)
Languages Portuguese Summary Summary in preparation Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1604&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 19 June 2013 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Emanuele Marchetti v Marcos dos Santos Assunção / SEC 5.828
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 19 June 2013 Parties Emanuele Marchetti v Marcos dos Santos Assunção Case number SEC 5.828 Source http://www.stj.jus.br (Official website of the Superior Tribunal de Justiça)
Languages Portuguese Summary Summary in preparation Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1603&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 19 June 2013 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Weil Brothers Cotton Inc v Pedro Ivo de Freitas (Estate) / SEC 4.213
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 19 June 2013 Parties Weil Brothers Cotton Inc v Pedro Ivo de Freitas (Estate) Case number SEC 4.213 Source http://www.stj.jus.br (Official website of the Superior Tribunal de Justiça)
Languages Portuguese Summary Summary in preparation Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1602&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 06 February 2013 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Mandate Holdings LLC v Consórcio Europa / SEC 6.365
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 06 February 2013 Parties Mandate Holdings LLC v Consórcio Europa Case number SEC 6.365 Source http://www.stj.jus.br (Official website of the Superior Tribunal de Justiça)
Languages Portuguese Summary Summary in preparation Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1601&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 20 September 2012 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Oito Grãos Exportação e Importação de Cereais Defensivos Agrícolas Ltda. v Galaxy Grain Itália SPA / Special Appeal 1.203.430
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 20 September 2012 Parties Oito Grãos Exportação e Importação de Cereais Defensivos Agrícolas Ltda. v Galaxy Grain Itália SPA Case number Special Appeal 1.203.430 Applicable NYC Provisions V | III | V(1)(e) Source http://www.stj.jus.br (Official website of the Superior Tribunal de Justiça)
Languages Portuguese Summary Oito Grãos Exportação e Importação de Cereais Defensivos Agrícolas Ltda (Oito Grãos) and Galaxy Grain Itália SPA (Galaxy Grain) had an ongoing contractual relationship for the supply of soy which provided for arbitration under the aegis of the Federation of Oils, Seeds and Fats Association Ltd. (FOSFA). A dispute arose and was submitted to arbitration resulting in an award rendered in England. However, at the same time that the arbitration proceedings were ongoing, Oito Grãos sought to argue those issues already raised before the arbitral tribunal in the Brazilian courts. The Court of First Instance found in favour of Oito Grãos. The decision was overturned by the Tribunal de Justiça do Paraná (Paraná Court of Appeals). The Tribunal de Justiça do Paraná initially decided to stay the proceedings until the Superior Tribunal de Justiça (Superior Court of Justice) decided on the recognition and enforcement (“homologação”) of the arbitral award. After the Superior Tribunal de Justiça had granted recognition and enforcement (Challenged Foreign Award 507 – SEC 507), the Tribunal de Justiça do Paraná dismissed the claims without prejudice. Oito Grãos filed a special appeal before the Superior Tribunal de Justiça arguing that the dismissal violated Article 4(2) of the Brazilian Arbitration Act (the Arbitration Act) and several provisions of the Brazilian Code of Civil Procedure because the court had not reviewed the question of the validity of the arbitration agreement and arbitral proceedings. The Superior Tribunal de Justiça dismissed the appeal. At the outset, it held that it would be absolutely unworkable to raise objections to the validity of the arbitration agreement and the arbitral proceedings through the type of legal action sought by Oito Grãos. It held that, in accordance with Article V NYC and Articles 38 and 39 of the Arbitration Act, all the aforementioned issues should have been addressed in the recognition and enforcement proceedings. The Superior Tribunal de Justiça held that the Tribunal de Justiça do Paraná had validly dismissed the claims without prejudice. It initially took notice of the fact that pursuant to Article V(1)(e) NYC the recognition and enforcement could only be granted after the award had become final as between the parties. However, the award was only considered final by Brazilian authorities after it had been granted recognition and enforcement, which gave rise to the obligation to recognize a foreign arbitral award as binding pursuant to Article III of the NYC. Lastly, the Superior Tribunal de Justiça held that once the award had been granted recognition and enforcement, it had the same force and it would be executed as any other national judgment. Thus, any claims before national courts dealing with the same issues already settled in the award would be inadmissible. It concluded by asserting that allowing the proceedings to continue before Brazilian courts might amount to an internationally illicit act since Brazil had the obligation to recognize a foreign award as binding based on the NYC. affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1361&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 15 August 2012 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / YPFB Andina S.A. v Univen Petroquímica Ltda. / SEC 4.837
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 15 August 2012 Parties YPFB Andina S.A. v Univen Petroquímica Ltda. Case number SEC 4.837 Source http://www.stj.jus.br (Official website of the Superior Tribunal de Justiça)
Languages Portuguese Summary Summary in preparation Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1600&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 14 June 2012 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Comverse Inc. v. American Telecommunications do Brasil Ltda. / SEC 3.709
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 14 June 2012 Parties Comverse Inc. v. American Telecommunications do Brasil Ltda. Case number SEC 3.709 Applicable NYC Provisions V | V(1)(a) Source http://www.stj.jus.br (Official website of the Superior Tribunal de Justiça)
Languages Portuguese Summary A Chilean company, American Telecommunications Inc. Chile (ATI), entered into a value added reseller agreement with an American company, Comverse Inc. (Comverse). The contract contained an arbitration agreement providing for arbitration according to the rules of the American Arbitration Association (AAA). After arbitration proceedings commenced, some subsidiaries of the Chilean company joined the arbitration including the Brazilian subsidiary, American Telecommunication do Brasil Ltda. (ATI do Brasil). The award was rendered in New York ordering the Brazilian company to pay damages to Comverse. Comverse sought recognition and enforcement (“homologação”) before the Superior Tribunal de Justiça (Superior Court of Justice). ATI do Brasil raised numerous objections to the recognition and enforcement of the foreign award. It argued that it was not bound by the arbitration clause because it was not a party to the contract which contained the arbitration clause. In addition, the request for arbitration was made only against ATI, an affiliated company of ATI do Brasil. The Respondent also argued that because it joined the arbitration proceedings late, it had not received proper notification of the commencement of the proceedings. Lastly, it argued that counsel had not represented it properly in the proceedings and therefore it had been unable to present its defence. The Superior Tribunal de Justiça granted the recognition and enforcement request based on the Brazilian Arbitration Act (the Arbitration Act) and the NYC. It considered that the parties had not only agreed to the inclusion of the Chilean company’s subsidiaries in the proceedings, but such inclusion also resulted in the pursuit of a counterclaim on their behalf. Therefore, ATI do Brasil could not argue that it was not a proper party to the arbitration. In addition, the same counsel represented ATI Chile and its subsidiaries in the arbitration. The Superior Tribunal de Justiça interpreted Article 38(II) of the Arbitration Act and Article V(1)(a) NYC to determine that the law applicable to the determination of proper legal representation is the one selected by the parties or, absent such choice, the law of the country where the award was rendered. In this case, the Respondent did not show how there was any breach of the procedural rules which governed the arbitration proceedings. Finally, the Superior Tribunal de Justiça rejected the argument that Respondent could not present its case. It noted that Respondent’s counsel was notified of every step of the proceedings, and Respondent never raised any objections before the Tribunal regarding lack of notifications. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1360&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 18 April 2012 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Kanematsu USA Inc. v. ATS - Advanced Telecommunications Systems do Brasil Ltda. / SEC 885
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 18 April 2012 Parties Kanematsu USA Inc. v. ATS - Advanced Telecommunications Systems do Brasil Ltda. Case number SEC 885 Source http://www.stj.jus.br (Official website of the Superior Tribunal de Justiça)
Languages Portuguese Summary An American company, Kanematsu Usa Inc. (Kanematsu), entered into a contract with a Brazilian company, Advanced Telecommunications Systems do Brasil Ltda. (ATS), for the purchase and sale of telecommunications equipment. The contract included an arbitration clause providing for arbitration under the auspices of the American Arbitration Association (AAA). An award was rendered and the Claimant sought recognition and enforcement (“homologação”) before the Superior Tribunal de Justiça (Superior Court of Justice). ATS raised objections to the recognition and enforcement on two different grounds. It argued that the arbitral tribunal did not have jurisdiction over the claim because the contract containing the arbitration clause was unsigned, which demonstrated a lack of consent to arbitration. Granting recognition and enforcement would constitute a violation of the principle of the parties’ autonomy (“autonomia da vontade”) and consequently, a breach of Article 39(II) of the Brazilian Arbitration Act (this article mirrors Article V(2)(b) NYC). The Respondent also argued that the award should not be granted recognition and enforcement because it failed to state reasons, which constitutes a violation of a Brazilian constitutional provision. Superior Tribunal de Justiça refused to grant recognition and enforcement based, for the most part, on the Brazilian Arbitration Act. The Superior Tribunal de Justiça considered that the contract was not signed and that the Respondent had repeatedly objected to the tribunal’s jurisdiction. Thus, it was not possible to establish that the parties had agreed to arbitration in writing. It did not review the objection based on the failure to state reasons. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1359&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 21 March 2012 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Louis Dreyfus Commodities Brasil S/A v. Leandro Volter Laurindo de Castilhos / SEC 6.335
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 21 March 2012 Parties Louis Dreyfus Commodities Brasil S/A v. Leandro Volter Laurindo de Castilhos Case number SEC 6.335 Source http://www.stj.jus.br (Official website of the Superior Tribunal de Justiça)
Languages Portuguese Summary The parties entered into a future contract, for the purchase and sale of cotton. The contract included an arbitration clause providing for arbitration under the auspices of the International Cotton Association (ICA). A dispute arose and an arbitral tribunal issued an award ordering the Respondent to pay damages. The Claimant requested recognition and enforcement (“homologação”) before the Superior Tribunal de Justiça (Superior Court of Justice). The Respondent raised several objections. It argued that the arbitration agreement was not valid because it was contained in a contract of adhesion and the formal requirements, under Brazilian law, for this type of contract, had not been followed. The Respondent also alleged that it had not been formally notified of the proceedings and that recognition and enforcement of the award would violate national sovereignty. It further argued that only Brazilian courts had jurisdiction to hear the claim because a bond related to the contract, which gave rise to the award, subjected all the contractual obligations to Brazilian law in accordance with the Brazilian conflict of laws rules. Lastly, the Respondent argued that the award could not be granted recognition and enforcement because there was an ongoing dispute before the Brazilian courts discussing the validity of the arbitration agreement. The Superior Tribunal de Justiça granted the recognition and enforcement of the foreign award based on the Brazilian Arbitration Act (the Arbitration Act). It stated that the only grounds on which recognition and enforcement could be refused were outlined in Articles 38 and 39 of the Arbitration Act (which mirror Article V(1) and V(2) NYC). The Superior Tribunal de Justiça asserted that if the arbitration agreement was valid under the law chosen by the parties pursuant to Art 38 (II) of the Arbitration Act (which mirrors Article V(1)(a) NYC), it is not possible to question specific aspects of the contract in recognition and enforcement proceedings. Therefore, the party could not call into question the nature of the contract because it would require an analysis of the merits to determine if it was a contract of adhesion. Regarding the lack of proper notification, the Superior Tribunal de Justiça referred to case law interpreting Article 39 of the Arbitration Act, which held that it is not necessary to notify the party through a letter rogatory and that notification through regular mail service would suffice. It also held that the conflict of laws rules could not be raised to deprive the tribunal of jurisdiction when there was a valid arbitration agreement between the parties. Finally, the Superior Tribunal de Justiça held that the ongoing dispute before Brazilian courts discussing the validity of the arbitration agreement was not a bar to granting recognition and enforcement of the foreign award. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1358&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 19 October 2011 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Kia Motors Corporation v. Washington Armênio Lopes; Chong Jin Jeon; Roberto Uchôa Neto; Ásia Motors do Brasil S/A; Set Participações e Empreendimentos S/A; Set Trading S/A; JBP do Brasil; American Samoa Corporation / SEC 1
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 19 October 2011 Parties Kia Motors Corporation v. Washington Armênio Lopes; Chong Jin Jeon; Roberto Uchôa Neto; Ásia Motors do Brasil S/A; Set Participações e Empreendimentos S/A; Set Trading S/A; JBP do Brasil; American Samoa Corporation Case number SEC 1 Source http://www.stj.jus.br (Official website of the Superior Tribunal de Justiça)
Languages Portuguese Summary The Korean Asia Motors Company (AMC), later succeeded by Kia Motors Corporation (KMC), entered into a joint venture agreement, with multiple Brazilian parties, through which it sought to expand its business in Brazil and Mercosur. The joint venture agreement included an arbitration agreement providing for arbitration under the auspices of the International Chamber of Commerce (ICC), with the seat of arbitration in New York. The parties had agreed to create a Brazilian company to be the basis of operation of the joint venture, called Asia Motors do Brasil S/A (AM do Brasil). AM do Brasil pursued a capital stock increase as previously agreed by the parties, however, KMC found that the manner through which the capital increase took place was contrary to the terms of the agreement. Thus, KMC sought a provisional measure before Brazilian courts to suspend the effects of the general meeting in which the capital increase was approved. Subsequently, KMC also sought and obtained a Brazilian judgment declaring the said general meeting a nullity. The parties referred the dispute to arbitration, which resulted in an award rendered in New York. KMC requested recognition and enforcement (“homologação”) of the foreign award before the Superior Tribunal de Justiça (Superior Court of Justice). One of the Respondents, Washington Armênio Lopes (WAL), presented objections to its recognition and enforcement arguing that the arbitration agreement contained in the joint venture contract was no longer binding as the parties had demonstrated their intention to no longer be bound by arbitration by entering into a shareholders agreement and agreeing to the bylaws of the company without including an arbitration clause therein. WAL also argued that the dispute was beyond the scope of the arbitration clause and that both parties had waived arbitration when they argued the merits of the dispute before Brazilian courts. Finally, it argued that the other Respondents had not been properly notified of the arbitration proceedings. The Superior Tribunal de Justiça partially granted recognition and enforcement to the foreign award. It initially relied on Article 38(IV) and 38(V) of the Brazilian Arbitration Act (which mirrors Articles V(1)(c) and V(1)(d) NYC) to assert its jurisdiction to review the scope and existence of the arbitration agreement. In addition, The Superior Tribunal de Justiça analyzed inter alia Article 4 of the Brazilian Arbitration Act (which has similar but not identical language to Article II(1) NYC, it provides: “Article 4: An arbitration clause is an agreement by which the parties to a contract undertake to submit to arbitration the disputes which may arise with respect to that contract”). It considered that the joint venture was a significant investment characterized by the mutual cooperation of the parties and it functioned as an umbrella agreement. Thus, it was not reasonable to conclude that the parties would have waived the broad arbitration agreement included in the joint venture contract by simply omitting an explicit reference to arbitration in the other contracts, particularly because these contracts were a continuation of the joint venture. The Superior Tribunal de Justiça would only find that arbitration had been waived if the parties had performed a new formal act unequivocally demonstrating the parties’ intention to invalidate the arbitration agreement. Regarding the claim that the other Respondents had not been properly notified, it reached the conclusion that the Respondents had not appeared despite being properly notified. Finally, the Court determined that the request for recognition and enforcement could only be granted partially because the claim before Brazilian courts commenced by KMC led to a decision which had become res judicata under Brazilian law. Therefore, the arbitral tribunal’s findings concerning the nullity of the general assembly could not be granted recognition and enforcement because there was a final Brazilian judgment on this same issue. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1357&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 01 June 2011 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Paramount Têxteis Indústria e Comércio S/A v Lacoste do Brasil Indústria e Comércio Ltda. / SE 4980
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 01 June 2011 Parties Paramount Têxteis Indústria e Comércio S/A v Lacoste do Brasil Indústria e Comércio Ltda. Case number SE 4980 Source http://www.stj.jus.br (Official Website of the Superior Tribunal de Justiça)
Languages Portuguese Summary An award was rendered in London under the auspices of the International Chamber of Commerce (ICC) in a dispute between Paramount Têxteis Indústria e Comércio S/A (Paramount) and Lacoste do Brasil Indústria e Comércio Ltda. (Lacoste). Paramount sought recognition and enforcement (“homologação”) before the Superior Tribunal de Justiça (Superior Court of Justice). Lacoste did not present a formal reply but raised the objection that the award could not be granted recognition and enforcement because it had already fully complied with the award. The Superior Tribunal de Justiça granted recognition and enforcement to the foreign award based on the Brazilian Arbitration Act (the Arbitration Act). The Court considered that the judicial review in recognition and enforcement proceedings is limited to Articles 38 and 39 of the Arbitration Act (which mirror Article V(1) and V(2) NYC), in addition to the general requirements of compliance with national sovereignty, public policy and common decency. Thus, the claim of full payment of the debt by Lacoste did not bar recognition and enforcement of the award. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=843&opac_view=6 Attachment (2)
Original LanguageAdobe Acrobat PDF
Unofficial TranslationAdobe Acrobat PDFBrazil / 24 May 2011 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Nuovo Pignone SPA and others v Petromec Inc. and Marítima Petróleo e Engenharia Ltda. / Special Appeal 1.231.554
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 24 May 2011 Parties Nuovo Pignone SPA and others v Petromec Inc. and Marítima Petróleo e Engenharia Ltda. Case number Special Appeal 1.231.554 Applicable NYC Provisions I Source http://www.stj.jus.br (Official Website of the Superior Tribunal de Justiça)
Languages Portuguese Summary Petromec Inc (Petromec) and Nuovo Pignone SPA (Nuovo Pignone) were involved in a legal dispute before an arbitral tribunal operating under the Rules of Arbitration of the International Chamber of Commerce (ICC). An award was rendered in Rio de Janeiro. The Court of First Instance held that the Brazilian courts had jurisdiction to enforce the award (a power the courts had vis-à-vis domestic arbitration awards). Petromec appealed and the Tribunal de Justiça do Rio de Janeiro (Rio de Janeiro Court of Appeals) granted the request determining that the award was international, thus, it was subject to recognition and enforcement proceedings (“homologação”) before it could be enforced in Brazil. Nuovo Pignone appealed to the Superior Tribunal de Justiça (Superior Court of Justice) arguing the decision from the Tribunal de Justiça do Rio de Janeiro violated the Brazilian Arbitration Act and the Code of Civil Procedure. The Tribunal Superior de Justiça overturned the decision of the Tribunal de Justiça do Rio de Janeiro. At the outset it considered that pursuant to Article 31 of the Brazilian Arbitration Act (the Arbitration Act) arbitral awards have the same force as any other national judgment. However, foreign arbitral awards were only equivalent to a national judgment once they had been granted recognition and enforcement. The Superior Tribunal de Justiça considered that Article I NYC provides that the criteria for characterizing the nationality of an award were to be determined by reference to national legislation. It held that pursuant to Article 34 of the Arbitration Act the criterion was clearly the place where the award was rendered. Therefore, no other criteria should be taken into account except the geographical location where the award was rendered to determine the nationality of the award. The Superior Tribunal de Justiça concluded that the award was a domestic one and could be readily enforced without being subject to recognition and enforcement proceedings. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=44&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 29 June 2010 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Jess Smith & Sons Cotton LLC v Orlando Polato and Caetano Polato / SEC 4415
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 29 June 2010 Parties Jess Smith & Sons Cotton LLC v Orlando Polato and Caetano Polato Case number SEC 4415 Source http://www.stj.jus.br (Official Website of the Superior Tribunal de Justiça)
Languages Portuguese Summary Jess Smith & Sons Cotton LLC (Jess Smith) entered into a purchase and sale contract with Orlando Polato and Caetano Polato containing a clause providing for arbitration under the auspices of the International Cotton Association (ICA). Jess Smith sought recognition and enforcement (“homologação”) before the Superior Tribunal de Justiça (Superior Court of Justice). The Respondents opposed recognition and enforcement based on Article 38 of the Brazilian Arbitration Act (which mirrors Article V(1) NYC), arguing that the award violated public policy and that the consent to the arbitration agreement was vitiated by error. They also argued that the award could not be recognized because there was a claim before the Brazilian courts dealing with the same issue decided by the tribunal. The Superior Tribunal de Justiça (Superior Court of Justice) granted recognition and enforcement to the foreign award based on the Arbitration Act. At the outset it noted that none of Respondents’ allegations were supported by evidence. The Superior Tribunal de Justiça adopted the opinion of the Public Prosecutor’s Office (“Ministério Público Federal”). The Public Prosecutor stated that Respondents only listed the grounds for denying recognition and enforcement mentioned in Article 38 but failed to apply them to the case at hand. Regarding the issue of vitiation by error, the Public Prosecutor and the Superior Tribunal de Justiça considered the allegation to be groundless. Finally, the Public Prosecutor also considered that the existence of challenges to an arbitral award before Brazilian courts is not a bar to the recognition and enforcement of that award. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=842&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 19 August 2009 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Atecs Mannesmann GmbH v Rodrimar S/A Transportes Equipamentos Industriais e Armazéns Gerais / SEC 3.035
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 19 August 2009 Parties Atecs Mannesmann GmbH v Rodrimar S/A Transportes Equipamentos Industriais e Armazéns Gerais Case number SEC 3.035 Source http://www.stj.jus.br (Official website of the Superior Tribunal de Justiça)
Languages Portuguese Summary Rodrimar S/A Transportes Equipamentos Industriais e Armazéns Gerais (Rodrimar) entered into a contract for the purchase and sale of a mobile harbour crane with Mannesman Dematic AG (Mannesmann). The contract provided for arbitration under International Chamber of Commerce (ICC) Rules of Arbitration. Mannesmann initiated arbitration proceedings and obtained a favourable award rendered in Zurich. Subsequently Mannesmann was acquired by Atecs Mannesmann GmbH (Atecs). Atecs sought recognition and enforcement (“homologação”) before the Superior Tribunal de Justiça (Superior Court of Justice). Rodrimar opposed recognition and enforcement on the grounds that (i) there was a previous decision in which the Superior Tribunal de Justiça had denied recognition and enforcement to the same award (Challenged Foreign Award No. 968 – SEC No. 968); (ii) Atecs did not have standing to seek recognition and enforcement of the award; (iii) the award was rendered outside the scope of the arbitration agreement pursuant to Articles 32 and 38(IV) and 38(V) of the Brazilian Arbitration Act (which mirror Article (v)(1)(c)(d) NYC); and (iv) it violated public policy because the tribunal did not respect the parties’ choice of law. The Superior Tribunal de Justiça granted recognition and enforcement based on the Brazilian Arbitration Act (the Arbitration Act). It first dismissed the argument that recognition and enforcement was barred due to res judicata. The previous decision dismissed the request for recognition and enforcement without prejudice due to the party’s lack of standing, thus, Atecs could still file a request for recognition and enforcement. It held that any interested party, including third-parties and successors, can request recognition and enforcement. Since Atecs had acquired Mannesmann it had standing to do so. Justice Andrighi expounded in a concurring opinion that Respondent’s argument that Atecs did not have standing because Mannesmann assigned its rights to another party before the acquisition could not be accepted. Justice Andrighi considered that recognition and enforcement had been denied in SEC 968 (the case seeking enforcement by the assignee) precisely because the Superior Tribunal de Justiça could not review the validity of the assignment contract. Thus, in the present matter, it could not review the validity of the assignment contract to determine if Atecs did not have standing to request recognition and enforcement. The Superior Tribunal de Justiça dismissed the argument that the award was outside the scope of the arbitration agreement and violated public policy. It stated that because the question of applicable law concerned the merits of the dispute it could not be reviewed. Finally, it observed that the award complied with all the mandatory requirements for granting recognition and enforcement described in Articles 38 and 39 of the Brazilian Arbitration Act (which mirror Articles V(1) and V(2) NYC). see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=41&opac_view=6 Attachment (2)
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Unofficial TranslationAdobe Acrobat PDFBrazil / 28 May 2009 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Devcot S/A v Ari Giongo / SEC 3.660
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 28 May 2009 Parties Devcot S/A v Ari Giongo Case number SEC 3.660 Source http://www.stj.jus.br (Official Website of the Superior Tribunal de Justiça)
Languages Portuguese Summary Devcot S/A (Devcot) entered into a contract for the purchase and sale of cotton with Ari Giongo. The contract provided for arbitration in accordance with the Rules of Arbitration of the International Cotton Association (ICA). A dispute arose and an award was rendered in Devcot’s favour, who subsequently requested recognition and enforcement (“homologação”) before the Superior Tribunal de Justiça (Superior Court of Justice). Ari Giongo opposed recognition and enforcement arguing that service of process had to have been done by letter rogatory but instead all correspondence had been sent by courier. Furthermore, the Respondent stated that he had not been aware of the arbitral proceedings until he was notified of the request for recognition and enforcement. The Superior Tribunal de Justiça granted recognition and enforcement to the foreign award based on the Brazilian Arbitration Act (the Arbitration Act). It observed that previously the Supremo Federal Tribunal (Federal Supreme Court) had required that service of process be made by letter rogatory. However, this was no longer the case after the enactment of the Arbitration Act, which allows notifications in arbitral proceedings by regular mail so long as the Brazilian party to an arbitration is granted sufficient time to exercise its right of defence. The Superior Tribunal de Justiça also found that the Respondent, in showing that he had not been notified of the arbitral proceedings, had not met the burden of proof in accordance with Article 38(III) of the Arbitration Act (which mirrors Article V(1)(b) NYC). It quoted from the opinion of a Brazilian scholar that the general rule was that the Respondent carried the burden of proving that it had not been given the opportunity to present its case. However, since it was usually unreasonable to place such a burden on the Respondent, where such an objection was raised the Claimant would have to demonstrate that the other party was notified, pursuant to Article V(1)(b) NYC and Article 38(III) of the Arbitration Act. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=40&opac_view=6 Attachment (2)
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Unofficial TranslationAdobe Acrobat PDFBrazil / 17 March 2009 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / General Electric do Brasil S/A v Tecnimed Paramedics Eletromedicina Comercial Ltda. / Special Appeal 1.015.194
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 17 March 2009 Parties General Electric do Brasil S/A v Tecnimed Paramedics Eletromedicina Comercial Ltda. Case number Special Appeal 1.015.194 Source http://www.stj.jus.br (Official website of the Superior Tribunal de Justiça)
Languages Portuguese Summary General Electric do Brasil S/A (GE) and Tecnimed Paramedics Eletromedicina Comercial Ltda. (Tecnimed) entered into representation, distribution and sale contracts for the years from 1999 to 2001. The contracts contained an arbitration agreement providing for arbitration under the auspices of the Inter-American Commercial Arbitration Commission. A dispute arose and the parties argued the validity of the arbitration agreement before the Brazilian and American courts stating that the contracts were no longer in force at the time the dispute arose. Meanwhile, an award was rendered in Miami, USA. Tecnimed filed a claim before a Brazilian court seeking damages and a declaration that it was not bound to pay the amount ordered by the award. The Court of First Instance dismissed the claims without prejudice due to the existence of an arbitration agreement. Tecnimed appealed to the Tribunal de Justiça do Rio Grande do Sul (Rio Grande do Sul Court of Appeals) who reversed the decision, characterizing the parties’ contract as an adhesion contract. It found that the formal requirements for a valid arbitration agreement in an adhesion contract had not been met, thus, the arbitration agreement was not valid. GE appealed to the Superior Tribunal de Justiça (Superior Court of Justice) arguing that the arbitration agreement was valid and binding and that the decision of the Tribunal de Justiça do Rio Grande do Sul violated the Brazilian Arbitration Act, the Civil Code, the Code of Civil Procedure, the 1975 Inter-American Convention on International Commercial Arbitration and Article II(1)(3) NYC. The Superior Tribunal de Justiça found the Special Appeal to be inadmissible on procedural grounds. It held that GE was precluded from raising arguments based on the NYC because it had previously not raised any of these objections before lower courts. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1354&opac_view=6 Attachment (1)
Original LanguageAdobe Acrobat PDFBrazil / 17 December 2008 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Indutech SpA v Algocentro Armazéns Gerais Ltda. / SEC 978
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 17 December 2008 Parties Indutech SpA v Algocentro Armazéns Gerais Ltda. Case number SEC 978 Source http://www.stj.jus.br (Official Website of the Superior Tribunal de Justiça)
Languages Portuguese Summary Indutech SPA (Indutech) and Algocentro Armazéns Gerais Ltda. (Algocentro) had an ongoing business relationship. The contract, which was not signed by the parties, provided for arbitration under the auspices of the Liverpool Cotton Association in the United Kingdom. A dispute arose between the parties and Indutech obtained a favourable award. It requested recognition and enforcement (“homologação”) before the Superior Tribunal de Justiça (Superior Court of Justice). Algocentro did not appear and the Superior Tribunal de Justiça appointed a public defender to act on Algocentro’s behalf. The public defender opposed recognition and enforcement on the grounds that there was no evidence that the award was final. Moreover, he argued that the contract had not been signed by the Respondent. The Superior Tribunal de Justiça denied recognition and enforcement to the foreign award based on the Brazilian Arbitration Act (the Arbitration Act). Relying on Article 4 of the Arbitration Act (which is comparable to Article II(2) NYC but not identical) it held that, under Brazilian law, an arbitration agreement, in order to be valid, required explicit consent in writing. Due to the lack of signatures or any other form of consent in writing to the contract there was no evidence that Algocentro had agreed to the arbitration agreement. Thus, the recognition and enforcement of the award would violate the Arbitration Act, the principle of party autonomy and Brazilian public policy. The Superior Tribunal de Justiça relied on its own precedents, including Challenged Foreign Award No. 866 (SEC No. 866). In that decision it had found that the lack of a signature or any other form of consent in writing was a bar to the recognition and enforcement of a foreign award, in accordance with Article II(2) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=37&opac_view=6 Attachment (2)
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Unofficial TranslationAdobe Acrobat PDFBrazil / 13 October 2008 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / BNP Paribas v Banco Fontecindam S/A and others / Interlocutory Appeal 1.046.883
Country Brazil Court Brazil, Superior Tribunal de Justiça (Superior Court of Justice) Date 13 October 2008 Parties BNP Paribas v Banco Fontecindam S/A and others Case number Interlocutory Appeal 1.046.883 Source http://www.stj.jus.br (Official website of the Superior Tribunal de Justiça)
Languages Portuguese Summary The parties signed a Memorandum of Understanding (MOU) establishing inter alia the sale of assets from Bank Fontecindam to Banque National de Paris (BNP). After the signature of the MOU, BNP decided to terminate the agreement. Bank Fontecindam sought damages for termination before the Brazilian courts. The Court of First Instance dismissed the claims without prejudice due to the existence of an arbitration agreement. The Claimant appealed to the Tribunal de Justiça de São Paulo (São Paulo Court of Appeals) asserting that there was no valid arbitration agreement because the MOU was not a final contract and only established the parties’ intention to sign an arbitration agreement in the future. The Tribunal de Justiça de São Paulo granted the Claimant’s request. The Respondent appealed to the Superior Tribunal de Justiça (Superior Court of Justice) claiming violations of the Brazilian Code of Civil Procedure, the Brazilian Arbitration Act, the 1923 Geneva Protocol on Arbitration Clauses and Article II NYC. The Superior Tribunal de Justiça dismissed the appeal on procedural grounds. It held that the appeal could not be heard because it was an attempt to review the interpretation of the contract, which was not allowed in this kind of recourse. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1353&opac_view=6 Attachment (1)
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