The Carta Arbitral
Posted on March 19, 2019
I was at a talk last week at which I heard about a new procedural mechanism in Brazil that I hadn’t heard of before: the carta arbitral (the “arbitral letter”). The purpose of the arbitral letter is to give the tribunal a means of requesting assistance from a court in carrying out its orders (for example, orders for preliminary relief, or discovery orders). The device is innovative insofar as it provides only very limited grounds for refusing to comply with the letter.
The existence of the arbitral letter also points to a difference in the conception of the arbitration process between legal cultures. In our system the burden of obtaining judicial enforcement of a tribunal’s awards rests entirely with the parties, and the tribunal typically does not ask the court to do anything. On the other hand, our law provides courts with very limited grounds on which to refuse a party’s petition for confirmation of an award, so the difference in form may not lead to a very significant difference in substance or in outcomes.
Brazilian lawyers, I would be interested to hear your experiences with the new device!