Brazil / 03 October 2007 / Brazil, Superior Tribunal de Justiça (Superior Court of Justice) / Spie Enertrans S/A v Inepar S/A Indústria e Construções / SEC 831
| Country | Brazil |
| Court | Brazil, Superior Tribunal de Justiça (Superior Court of Justice) |
| Date | 03 October 2007 |
| Parties | Spie Enertrans S/A v Inepar S/A Indústria e Construções |
| Case number | SEC 831 |
| Applicable NYC Provisions | V |
| Source |
http://www.stj.jus.br (Official Website of the Superior Tribunal de Justiça) |
| Languages | Portuguese |
| Summary | Sade Vigesa S/A (Sade) entered into a consortium agreement with Spie Enertrans S/A (SET) to supply and construct energy transmission lines in Ethiopia. Sade Vigesa Industrial e Serviços S/A (Sade Industrial), a subsidiary of Inepar S/A Indústria e Contruções (Inepar), was assigned all of Sade’s rights and obligations under the consortium agreement, which included an arbitration agreement providing for arbitration in accordance with the Rules of the International Chamber of Commerce (ICC). A dispute arose and an award was rendered in Paris under the auspices of the ICC. During the proceedings, Inepar acquired complete ownership of Sade Industrial and became a party to the arbitration. SET sought recognition and enforcement (“homologação”) before the Superior Tribunal de Justiça (Superior Court of Justice). Inepar opposed recognition and enforcement arguing that (i) the service of process had not been made properly; (ii) the arbitration agreement was invalid due to the fact that it was signed prior to the enactment of the Brazilian Arbitration Act (the Arbitration Act) and that the Claimant had failed to comply with the requirements then applicable. The requirements included the obligation to seek recognition and enforcement in the country where the award had been rendered before making the same request to the Brazilian courts; and (iii) there had been a violation of national sovereignty and public policy because, in particular, a specific declaration was required in order to assign consent to arbitration and there had been no declaration in this case. The Superior Tribunal de Justiça granted recognition and enforcement to the foreign award based on the Arbitration Act. It quoted from the opinion given by the Public Prosecutor’s Office (“Subprocurador-Geral da República”), which stated that the Arbitration Act revoked the necessity of double recognition and enforcement proceedings. Further, the fact that the arbitration agreement was signed prior to the Arbitration Act was not detrimental because procedural laws, like the Arbitration Act, had immediate effect under Brazilian law. The opinion also stated that the party raising objections had the burden of showing that the exceptions in Article V NYC were applicable. The Superior Tribunal de Justiça reiterated the findings made by the Public Prosecutor’s Office and held that Inepar had validly assumed all of Sade’s rights and obligations under the Consortium agreement. Lastly, the Superior Tribunal de Justiça dismissed the arguments that an invalid service of process had occurred which would have amounted to a violation of public policy and due process. |
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Attachment (1)
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