Arbitragem e corrupção: um estudo sob a perspectiva do direito brasileiro

Abstract

Throughout the twenty years of the Brazilian Arbitration Act (Law no. 9,307/96), arbitration has had significant development. However, a larger sample necessarily implies the increase of different and unusual possibilities that various professionals and academics will have to learn to deal with. One of these possibilities is corruption practices within contracts subject to arbitration. This dissertation intends to approach how the arbitrator should behave and deal with allegations of corrupt practices in the contracts submitted for his or her decision. The fundamentals that allow the arbitrator to remain in the exercise of his or her jurisdictional function will be analyzed, as well as procedural issues pertinent to the particularities of this context, which include the analysis of the burden and standard of proof. The so-called adverse inferences and red flags are also taken into consideration. In terms of substantive law, the civil consequences of corruption in contracts and the possibility of civil reparation in some scenarios will be analyzed. Finally, it is studied whether, once the acts of corruption have been identified and proven, there is the duty of the arbitrator to report the party's conduct to the competent authorities. At the end, conclusions are offered about how and to what extent the fight against corruption in arbitration should take place.