ABSTRACT: In 2012, Brazilian and English courts examined the validity of an arbitration agreement executed in Brazil. The decisions rendered demonstrate different approaches as to the law that governs the arbitration agreement. In Brazil, this law was associated with the law governing the main contract, which was Brazilian law. In England, the decisions were based on the doctrine of the separability of the arbitration agreement differentiating it from the underlying contract and determined that the law most closely connected to the arbitration agreement was that of the arbitration seat, which was English law. Injunctions were sought in both jurisdictions in view of the lawsuits filed before the Brazilian and English courts. While Brazilian courts ordered the discontinuation of the arbitration in London, English courts enjoined the parties to abstain from pursuing court litigation in Brazil, reminding the difficulties that such orders create to the conduct of international arbitration, both from the standpoint of the arbitrators' prerrogatives and as regards to international law.
Revista Brasileira de Arbitragem