Brazil / 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. |
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Attachment (2)
Original Language Adobe Acrobat PDF |
Unofficial Translation Adobe Acrobat PDF |