Litigation and Alternative Dispute Resolution


Authors: Luciano de Souza Godoy and Marcela Machado Martiniano

Since the enactment of the Brazilian Arbitration Act (Law No. 9,307/1996), the Brazilian legal framework has undergone remarkable changes that helped improve and strengthen arbitration as an alternative method of dispute resolution.

In 2002, the 1958 New York Convention came into force in Brazil, notably contributing to the development of arbitration in the country, particularly in respect to the recognition and enforcement of foreign arbitral awards.

More recently, the new Brazilian Civil Procedure Code (Law No. 13,105/2015) accommodated the kompetenz-kompetenz principle, under which it is up to the arbitrator to determine his or her own competence by examining the validity of the arbitration clause and the agreement in which it is inserted.

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Author: Sean Barrett

A property developer who relied on an estate agent's sales brochure has had his award of €350,000 in damages for negligent misstatement overturned by the Supreme Court by a 3:2 majority.

Background

In 2007, the High Court awarded €350,000 in damages to Mr David Walsh for negligent misstatement arising from information contained in a sales brochure produced by Jones Lang LaSalle (JLL) on behalf of the seller of a property.

JLL appealed the finding to the Supreme Court.

Read more: Estate Agent Not Liable for Inaccuracies in a Brochure: A Landmark Supreme Court Decision


In the case of X (as Trustee of the A Trust) v Y (as Beneficiary of the A Trust) (unreported) 15 March 2017, the Grand Court of the Cayman Islands granted Beddoe relief to a trustee where the trustee faced a claim that risked wiping out the Trust’s assets.

Z claimed damages against the Trustee of the A Trust under the terms of a sale and purchase agreement for breach of contract and the tort of deceit. The value of the claim outweighed the value of the Trust’s assets. Accordingly, the Trustee sought directions from the Court to defend the proceedings and an indemnity out of the Trust assets for the costs and expenses of doing so. In the absence of such Beddoe relief, the Trustee risked being personally liable in the event the defence was unsuccessful.

Read more: Trustees: Limit your liability and obtain your costs


The enforcement of arbitral awards is a very important last step that follows the arbitration proceedings. The arbitral awards, which are not complied with through the free will of the parties, would eventually be subject to recognition and enforcement proceedings. Accordingly, the failure to enforce the award may render the arbitration proceedings entirely useless and ineffective. At this point, the grounds for refusal of enforcement should be reviewed carefully, in order to avoid unpleasantries at the end of an enforcement proceeding.

The question as to whether an arbitral award set aside at the seat of arbitration may be enforced or not is quite important, and is analyzed in this article.

Read more: Enforcement of Arbitral Awards Set Aside at the Seat of Arbitration


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The Expedited Procedure, which provides a more expeditious dispute resolution with regard to certain disputes, has been adopted with the amendments to the ICC Arbitration Rules (“Rules”), effective as of March, 2017. Provisions pertaining to the Expedited Procedure are laid down under Article 30 of the Rules, as well as Appendix VI to the Rules (collectively referred to as “Provisions”).

Additionally, very useful information pertaining to the application of the Provisions, and to the Expedited Procedure, in general, may be found under the ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration (“Notes”), which shall be analyzed in this Newsletter article.

Read more: ICC Expedited Procedure Rules in accordance with the ICC Note on the Conduct of Arbitration