Brazil / 06 March 2006 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Bouvery International S/A v Irmãos Pereira - Comercial e Exportadora Ltda. / SEC 887
Country | Brazil |
Court | Brazil, Superior Tribunal de Justiça (Superior Court of Justice) |
Date | 06 March 2006 |
Parties | Bouvery International S/A v Irmãos Pereira - Comercial e Exportadora Ltda. |
Case number | SEC 887 |
Source |
http://www.stj.jus.br (Official Website of the Superior Tribunal de Justiça) |
Languages | Portuguese |
Summary | The parties entered into a contract for the sale of 3,300 sacks of coffee. Bouvery International S/A (Bouvery) claiming that Irmãos Pereira Comercial e Exportadora Ltda. (Irmãos Pereira) had failed to comply with the contract, initiated arbitration proceedings before the Coffee and Pepper Arbitration Centre in Le Havre (France). An award was rendered in 1996 in favour of Bouvery, who then filed a request for recognition and enforcement (“homologação”) of the award before the Superior Tribunal de Justiça (Superior Court of Justice). Irmãos Pereira opposed recognition of the award on the grounds that (i) the French arbitral award was not confirmed by a French judicial court; (ii) the constitutionality of some provisions of the Brazilian Arbitration Act (the Arbitration Act) was still in question; (iii) it had not participated in the arbitral proceedings or presented its case; and (iv) there was no submission agreement (“compromisso”) prior to the constitution of the Tribunal. The Superior Tribunal de Justiça granted recognition and enforcement to the award applying the Brazilian Arbitration Act. It initially considered that, based on the record, there was no doubt regarding the pre-existence of the arbitration agreement. The Superior Tribunal de Justiça further considered that the Irmãos Pereira voluntarily decided not to participate in the arbitration despite being notified of the proceedings. It also asserted that the constitutionality of the Arbitration Act was not in doubt since the Supremo Tribunal Federal (Federal Supreme Court) had upheld the constitutionality of the law. Concerning the argument related to Article 38(III) of the Arbitration Act (which mirrors Article V(1)(b) NYC), the Superior Tribunal de Justiça held that according to Article 38(III) the burden lay on the Respondent to prove a lack of notification and it had failed to do so. |
Attachment (2)
Original Language Adobe Acrobat PDF |
Unofficial Translation Adobe Acrobat PDF |