sexta-feira, 31 de maio de 2013


Just the other day I was posting about the attacks and criticism against arbitration in Brazil.

I mentioned that I was even considering forbidding my clients to arbitrate in Brazil.

Yesterday, I got new reasons to be concerned. A respected legal publication in Brazil has published two articles with severe criticism against arbitration in the capital markets.

I'm not sure if this means that the publication is only creating a buzz around the topic, or if this is a real legal trend developing in the Brazilian academia.

But I don't like to direction it is taking. I'm cautious.

You can check the stories here (in Portuguese):

Especialista critica arbitragem em mercado de capitais

Sigilo é obstáculo à formação jurisprudência arbitral

What do you think about it?

You may check part and part 1

4 comentários:

  1. Different opinions respected, the post does not address a serious concern and lacks solid basis for criticism (specially on such general terms as "forbidding clients to litigate in Brazil" or speaking vaguely of arbitration becoming "less safe"). From a comparative perspective, it is well know that publicly held companies in the USA are traditionally not allowed - by the SEC - to include arbitration agreements in their by-laws. This is not the case in Brazil, where specific statutory provisions allow for such agreements and the Commission (CVM) has set up a well-functioning arbitral institution. In short: Brazil is more receptive to arbitration in capital markets that the USA. This may not be necessarily a wise choice, but, if anything, it goes in the exact opposite direction of the post. As Brazilian lawyers, we owe a duty not to distort the country's legal system...

  2. Adler,

    It doesn't seem like the so-called specialist quotes in the Conjur article knows what she is talking about. I found this passage specially intriguing:

    "Uma das alterações que ela defende refere-se à lei que impede a pessoa de produzir provas contra si mesma. “Isso não existe nos EUA. O cara senta para depor e é obrigado, em juramento, a dizer a verdade. Se ele cometeu alguma coisa ilícita, vai produzir prova contra ele.” "

    Someone needs to tell her about the 5th amendment. Pleading the 5th in criminal cases, I might add, has stronger protections than in Brazil as no adverse inferences may be drawn from such a refusal.

  3. First, what's to prevent an arbitrator from drawing logical conclusions? (we don't do crime - ni private law prisons!).

    Adler, I didn't understand what " . . . forbidding my clients to litigate in Brazil." had to do with arbitration.

  4. Thanks for all the comments.

    third, I made a mistake. The correct sentence would be "forbidding my clients to arbitrate in Brazil". I have already corrected the post. Thanks.

    second, the topic you stressed is very important. Since the "mensalão" case, there has been many discussions in Brazil regarding the extent of the professional secrecy, and also the so called "abuse" by the defendants of their rights to keep silent. The paragraph you quoted has been repeated many times, by many other people.
    It seems to me that there is a widespread misunderstanding, and even a confusion, regarding the concepts of no self incrimination, contempt of course and perjury. For example:


    and 2) )

    first, I'd urge you to read the first part of the post, and also the post in Portuguese ( ). They are more detailed and well structured.

    After reading them, you will notice that my worries come from the fact that the Brazilian Revenue Service seems to be in a campaign to eradicate confidentiality and Attorney–client privilege from arbitration procedures. This series of "raids" by Brazilian Revenue service and of declarations against arbitration (or in the sense of limiting arbitration) seem to be an attempt to pressuring the committee responsible for drafting the new arbitration law, towards limiting the use of confidentiality in arbitration, or even eliminating the possibility altogether.

    I understand that the tone of the post has been dramatic. But I'm trying to draw attention to the matter. After the first "raid" against the FGV arbitration chamber, I expected an immediate response from other Brazilian arbitration chambers or even from the Bar Association. But the reaction has been very discrete and, to some extent, secretive.

    My intention is not to distort the Brazilian legal system, but to point out that arbitration is being opposed by the government (at least regarding its confidentiality), and that its use, in capital markets or otherwise, is now less safe (again, regarding secrecy) than it was in the past.


Do you have any doubts or suggestions? Leave your message (the comments shall not be considered as legal advice)