The Brazilian Justice Counsel published on September 29, 2021 decision regulating arbitral letters, which are the instruments foreseen in Brazilian Arbitration Act and in the Brazilian Code of Civil Procedure for communications between arbitral tribunals and judicial courts. Although arbitrators are equivalent to judges, they do not have powers to issue certain coercitive orders, such as to freeze bank accounts, seize assets or compel a witness to appear in a hearing. For such coercitive measures, the arbitrator will have to request judicial court assistance, which is effected through the arbitral letter.
According to such resolution, the arbitral letter shall contain: (i) identification of the arbitrator or tribunal and the body of the Judiciary to which the decision is addressed; (ii) indication of the order to be effected; (iii) the arbitrators’ signature; (iv) reference number of the arbitration and, in case of institutional proceeding, the name of the arbitral institution; and (v) name of the parties.
The arbitrators shall attach to the arbitral letter (i) the agreement to arbitrate, (ii) proof that the arbitrators were vested in the office and have powers to issue the decision, (iii) full copy of the party’s pleading and the decision whose enforcement is requested, (iv) power of attorney; and (v) in case confidentiality is requested, proof of the confidentiality covenant.
In case the arbitration is confidential, the files of the arbitral letter shall be conducted “in camara”, without being available to the public. This is relevant as certain judges of the State Court of São Paulo sometimes allow the files of lawsuits involving confidential arbitrations to be available to the public, which will not take place as to arbitral letters subject to this resolution.
The administrative bodies of the Judiciary can determine that cases related to arbitration should go to certain specific judicial courts, so that they become more specialized.
Although this resolution did not implement any radical change on the regulation of the arbitral letter, it is important to provide further legal certainty and to foster its use. The arbitral letter is a very valuable tool to give efficiency to the arbitration, as the tribunal is able to quickly obtain court assistance to enforce its decision, thereby making Brazil an even more friendly seat for arbitral proceedings.