The following Arbitration guidance note Produced in partnership with Flávio Spaccaquerche Barbosa and Vanessa Winkler of Mattos Filho, Veiga Filho, Marrey Jr. E Quiroga Advogados provides comprehensive and up to date legal information covering:
Anti-suit injunctions are a mechanism used to restrain court and/or arbitral proceedings. In international arbitration, the term is usually employed to define an action to bar a party from pursuing court proceedings in breach of an arbitration agreement. For instance, when a recalcitrant party attempts to bring a dispute covered by an arbitration agreement before a domestic court, the other party may request that a court or an arbitral tribunal grants an anti-suit injunction to forbid the party from initiating or proceeding with that legal action, in order to protect the enforceability of the arbitration agreement.
Although the use of anti-suit injunctions is widespread in many jurisdictions, it is generally accepted that this specific form of relief is not available under Brazilian law. The Brazilian Constitution grants free access to justice as a fundamental right—according to Brazilian Federal Constitution (art 5, XXXV)—so that no one may be prevented from accessing domestic courts. Therefore, an anti-suit injunction issued in Brazil aiming to prohibit a party from presenting its dispute to a Brazilian court would be deemed unconstitutional. However, this does not mean that the party may not seek enforcement of the arbitration agreement through other means.
There are two principal processes under Brazilian law to
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