Brazil / 07 March 2007 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Oleaginosa Moreno Hermanos Sociedad Anónima Comercial Industrial Financeira Imobiliaria y Agropecuaria v Moinho Paulista Ltda. / Motion for Clarification on SEC 866
| Country | Brazil |
| Court | Brazil, Superior Tribunal de Justiça (Superior Court of Justice) |
| Date | 07 March 2007 |
| Parties | Oleaginosa Moreno Hermanos Sociedad Anónima Comercial Industrial Financeira Imobiliaria y Agropecuaria v Moinho Paulista Ltda. |
| Case number | Motion for Clarification on SEC 866 |
| Applicable NYC Provisions | II | II(2) |
| Source |
http://www.stj.jus.br (Official website of the Superior Tribunal de Justiça) |
| Languages | Portuguese |
| Summary | Oleaginosa Moreno Hermanos Sociedad Anónima Comercial Industrial Financeira Imobiliaria y Agropecuaria (Oleaginosa) filed a motion for clarification, claiming that the decision rendered following proceedings for recognition and enforcement (SEC No. 866) was obscure and contradictory. Since the objections raised by Oleaginosa, if successful, could result in modifications to the judgment, the Superior Tribunal de Justiça (Superior Court of Justice) also allowed the Respondent in the enforcement and recognition proceedings, Moinho Paulista Ltda. (Moinho Paulista), to present its arguments on the objections raised. Oleaginosa argued that certain parts of the Brazilian Arbitration Act (the Arbitration Act) had ceased to be in force after the entry into force of the NYC. It stated that an exchange of telexes containing an arbitration agreement between the parties would lead to a presumption that Moinho Paulista had agreed to the arbitration agreement. Moreover, Moinho Paulista had never objected to the existence of the arbitration agreement but to the contracts containing the agreement. Oleaginosa further argued that the decision had failed to analyze evidence and arguments relating to the validity of the arbitration agreement, which had been presented before the arbitral tribunal. In addition, it stated the decision was unclear concerning the interpretation that the non-compliance with Article 37(II) of the Arbitration Act would lead to a violation of Brazilian public policy. Finally, Oleaginosa argued that Article 4 and other procedural rules of the Arbitration Act were applicable only to proceedings which took place in Brazilian territory. The Superior Tribunal de Justiça affirmed the judgment, dismissing all the allegations concerning obscurity or contradiction in the judgment. The Superior Tribunal de Justiça noted that the question of whether the Arbitration Act remained in force after the ratification of the NYC was moot since the NYC was incorporated into Brazilian Law on 23 July 2002, after the execution of the contract, and even after the request for recognition and enforcement. Even if the NYC was considered to be in force, Article II(2) NYC required evidence of the consent to arbitrate when such consent was given through a letter or telegram. The Superior Tribunal de Justiça held that this requirement had not been satisfied in the present case. The Court concluded the issue by considering that the objection was unfounded because it was clear that there was no evidence on record unequivocally showing that Moinho Paulista had agreed to the arbitration agreement. Regarding the argument that Moinho Paulista had not raised objections to the validity of the arbitration agreement but only to the existence of the contract, it found that it was a matter of course that if there was no contract, there could not be an arbitration agreement in the contract. Therefore, there was no obscurity or contradiction on this point. The Superior Tribunal de Justiça dismissed the other arguments as irrelevant stating that it amounted to Oleaginosa seeking a review of the decision, which, in most cases, was not possible under a motion for clarification proceedings. |
| affirms : | |
| see also : |
Attachment (1)
 Original Language Adobe Acrobat PDF |
