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BRAZIL 63
Superior Tribunal de Justiça, 27 October 2022, HDE No. 4174 - EX
(Sucden Middle East v. Usina Santa Fé S.A.)
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Superior Tribunal de Justiça, 27 October 2022, HDE No. 4174 - EX
(Sucden Middle East v. Usina Santa Fé S.A.)
BRAZIL 63
The Superior Court granted recognition of a partial award on the costs of the arbitration issued in the United Kingdom. The arbitral tribunal had declined its power to assess these costs and had referred their assessment to the Senior Court of London. The Court found that recognition of partial awards is allowed under Brazilian law, and that the defendant’s argument that the Senior Court lacked jurisdiction should be addressed by the arbitrators. Although the defendant referred to the provisions of the New York Convention, the Court applied the corresponding provisions of Brazilian law.
The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.
The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.
The court discusses the general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.
The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.
Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.
Public policy: The court discusses the consequences of the apparent or actual bias of an arbitrator on the recognition and enforcement of an arbitral award.