Under Brazilian Law, interim measures1 in arbitration are governed

principally by two federal laws, which are applicable within Brazil.

 

First, general provisions governing provisional measures in civil

procedure are set forth in the 1973 Code of Civil Procedure (Federal Law

5,869/73—the “Code of Civil Procedure”). Therefore, regardless of other

laws that provide specific rules for injunctions or provisional measures,2

Brazilian courts must apply the Code of Civil Procedure to such

measures prior to or during a civil lawsuit.

 

Second, arbitration is regulated by the 1996 Brazilian Arbitration

Act (Federal Law 9,307/96—the “Brazilian Arbitration Act”), which has

mandatory application to any arbitration seated in Brazil. Considered by

its drafters as being inspired by the UNCITRAL Model Law, the

Brazilian Arbitration Act is not a direct copy of the Model Law, but does

embody its most important principles such as competence-competence

and separability of the arbitration agreement.

 

Since the enactment of the Brazilian Arbitration Act in 1996 and the

2001 Federal Supreme Court decision recognizing its constitutionality,

arbitration has experienced rapid development as a dispute settlement

mechanism in Brazil. Over the past fifteen years, Brazil has gone from

being considered a “black sheep” for arbitration to a truly arbitrationfriendly

jurisdiction with many international arbitrations now occurring

in Brazil.

 

Due to this rapid growth, many practical issues regarding the use of

arbitration have arisen and have begun to be debated in the courts. The

use and application of provisional measures in relation to arbitration

proceedings is certainly one of them. After an initial misapplication of