1. ARBITRABILITY: A NEOLOGISM

1. The term “arbitrability” translates as the possibility of a given controversy being submitted to arbitral solution. The term is new in many jurisdictions1and only by the end of the last century was it incorporated into many local cultures. In Brazil, for instance, there is no mention of the term in classic dictionaries,2 let alone in the legal dictionaries edited in the 1970s and 80s.3Only by the end of the 20th century did the doctrine begin to use the term “arbitrability” in a more frequent and reliable manner.4

2. It is worth mentioning that the Brazilian Arbitration Law was edited in 1996(Law No. 9307 of September 1996). It is after this landmark, therefore, that Brazilians began to pay greater attention to the issues linked to this manner of dispute resolution, which ended up having success to the point of making the Brazilian case noteworthy in the context of emerging nations.

3. Arbitrability requires the verification of two relevant strands: the first relates to the litigating parties, that is, the capacity of the litigating parties to engage in a transaction and to enter into a settlement; the second refers to the scope of the controversy, i.e., if the controversy involves pecuniary rights(or for example, in certain jurisdictions, if the controversy does not involve matters of economic or social sensitiveness, concurrence law, or state controlled or regulated sectors). In both cases, should the party fail to contract, be prohibited (due to public law issues) to enter into the arbitration agreement or if the subject matter of the arbitration refers to freely transferable property rights (or to sectors expressly excluded), the controversy shall not be submitted to arbitration. The first questions(capacity and capability to execute the arbitral convention) are usually identified as subjective arbitrability; the latter (subject matter of the controversy) refers to the objective arbitrability.

4. These notes will focus on the debates related to the subjective arbitrability, providing a quick overview of the Brazilian perspective on the matter and of the issued faced by both the doctrine and the case law.

2. SUBJECTIVE ARBITRABILITY

5. Certain arbitration laws contain an express provision prohibiting the arbitral solution of controversies when the State is involved in the dispute (or, in the case of federative States, any entity composing the federation) or any government entity. This seems to be the case of France, which Civil Code establishes that controversies regarding public entities cannot be subject to arbitral convention (although certain entities may be authorized by decree to enter into an arbitral convention).5

6. Other legal systems do not contain an express prohibition on the participation of the State (or of government entities) in an arbitration, but request legal or government authorization so that the convention can be executed. This seems to be the case of Saudi Arabia.6

7. Brazil does not suffer from any of the above restrictions: there is no prohibition on the participation of the State in arbitration, nor is there a requirement of express authorization (legal or government-issued) so that an arbitration agreement is executed.

8. On the contrary, from issuance of Law 11079/2004, which regulates public private partnerships (that is ventures in which the State and private capital participate), it remains clear in the Brazilian legal system that it is possible to submit to arbitration a controversy directly involving the State (or any of its entities) and a private party. The law in question, however, provides for certain restrictions that have been subject to severe criticism: arbitration shall be carried out in Brazil and in the Portuguese language (article 11, III).7

3. THE STATE IN ARBITRATION

9. In Brazil, as in several other Latin American countries, the presence of the State in economic activities is constant. The intervention (or the participation) of the State does not happen in a direct manner, but almost always indirectly, by means of entities having a greater or lesser state participation. These companies, agents, agencies, foundations and institutions are frequently involved in legal deals of the most diverse nature(corporate, industrial, commercial, service rendering), jointly with other players and formally in the same grounds as the private companies. This promiscuity causes a certain perplexity when identifying the possibility of these state entities participating in arbitration disputes.

10. Therefore, a few concepts arose in Brazilian law that may cause confusion on the (subjective) arbitrability of a controversy to the extent that the State will be (directly or indirectly) involved in the controversy. I see four cases demanding reflection: the direct involvement of any unit of the Federation(a State, a Municipality or the Union itself); an autarchy; a public company; and a mixed-economy company. These concepts of national law will lead to interesting consequences with respect to the choice of the applicable law to detect the (subject) arbitrability of a controversy.

11. I begin with the legal entities of domestic public policy (the Union, States and Municipalities). Considering that the Brazilian arbitration culture has truly developed after issuance of the arbitration law, one had the impression that the presence of any entity of the Federation in the litigation could prevent the development of the arbitration. It was imagined — especially in more conservative circles — that the arbitration could tear the supposed guarantee assurance that surrounded court litigation (with its endless procession of appeals and revisions) and that it would disfavor the protection of the interests of the State (in its most varied forms).

12. In fact, in court litigation the State has several prerogatives (which, often redound in undisguised privilege) such as the necessary review of the first-instance decisions by courts,8 quadruplicate deadlines for the filing of statements of defense and duplicate deadlines for the filing of appeals9 and waiver of payment of court costs.10 The argument that impressed a few(and which would prevent the participation of the State in arbitration)started precisely from the rupture of a paradigm of safety and comfort, given that in the arbitral procedure the parties are treated with full equality.

13. On the other hand, a doubt was raised on the possibility of freely choosing an arbitration entity to administer the procedure: according to the Brazilian administrative law criteria, the hiring of services and supplies by the State shall be preceded by a bid mechanism given that the bid is a necessary condition for all agreements with the Public Administration.11

14. The issues above, as may be noted, are largely peripheral and reflect an unmeasured and disproportionate cult of the State, accompanied by a high degree of unfair mistrust regarding the attorneys in charge of defending the State.

15. The prerogatives held by the State when litigating in court arise from the need to balance the parity of arms among the litigating parties. Being that the State is a highly bureaucratic entity, the granting of enlarged deadlines aims solely at avoiding the complexity of State organization, something that could provoke an unjust procedural disadvantage and damage the public interest. Likewise, the system of necessary review of first-instance decisions— when unfavorable to the State — aim at protecting the Administration against the negligence of public agents which may (due to incompetence or shady interests) fail to file an appropriate appeal against the decision (or may file such appeal on faulty, superficial or partial grounds). Lastly, the waiver of court costs naturally avoids the shifting of funds from one account to the other (from the Executive Branch to the Judiciary Branch) with no benefit to the country.

16. It is plain to see that all the above mechanisms of parity, which may be of some use in state procedures, are useless in arbitration: with regard to deadlines, the parties may establish the procedure they deem most convenient, able to permit in an ample manner the defense of all interests of the litigating parties; with regard to appeals, it is certain that in arbitration there are few procedures allowing for a review of decisions, in most cases a decision being issued to produce immediate effects, so that the State —aware of this peculiarity — will surely take the necessary caution to be represented in an adequate manner, knowing that it will not benefit from the system of mandatory review; lastly, with regards to arbitration cost, the State will trade the gratuity of the court procedure for the celerity of an agile and more qualified procedure. All this, one can see, forms an interesting nucleus of choices available to the State, which will opt(contractually) for the arbitration by pondering the convenience and opportunity: it will trade the prerogatives it has in state procedures by the advantages of a quicker and more adequate procedure.

17. Regarding the choice of the arbitral chamber, there is no possibility to submit this selection to an objective bid criteria, considering that the comparison among the arbitration chambers would not take into consideration only objective elements (such as the cost of the services),but also others that may be considered imponderable (such as the existence or not of a list of arbitrators, the reputation of the entity, specialty, availability of the premises, functionality of the internal rulings).The requirement of a bid, in this particular case, may be waived as the very Brazilian Bid Law allows.12

18. Slowly, the impression that the problems leading to the — incorrect —perception that the State could not participate in arbitration were not (and are not) reasonable becomes stronger. The relevant issue is that counsel to the Union, States and certain large Municipalities (the attorneys’ offices) are now convinced of the need to be able to act in arbitrations, especially in international arbitrations, considering that these internal public law entities are directly participating in large contracts (especially in the field of construction and infrastructure). In the State of São Paulo, for instance, there is already a group of State attorneys specializing in arbitration to act in matters involving the State.

4. AUTARCHIES AND PUBLIC COMPANIES

19. As I have said before, the presence of the State in the most diverse fields of the economy is still very high in Latin American countries in general(particularly in Brazil). Despite the consistent privatization programs Brazil has been through over the last 20 years, still there is a lot to be done to remove the State — or at least diminish its presence — in activities that maybe better performed by the private sector. In any case, the public-private partnerships and the impulse given by the government for the privatization of infrastructure services will certainly cause a growing substitution of the Public Administration by the private production sectors. As long as this does not fully happen, the autarchies and public companies continue to act, the latter in activities that have little (or nothing) to do with the country’s administration.

20. Autarchies are autonomous administrative entities created by law, with legal existence of an internal public law nature, own equity and specific state attributions. Such entities have their own public law legal regulations, objective liability and basically everything applicable to the direct Administration (Union, State and Municipalities) is also applicable to such entities. Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis (Brazilian Environment and Renewable Natural Resources Institute — IBAMA), Instituto Nacional do Seguro Social (Social Security Institute — INSS), Instituto Nacional de Colonização e Reforma Agrária (Colonization and Land Reform Institute — INCRA), several federal universities and regulatory agencies (Agência Nacional de Energia Elétrica— National Agency of Electric Energy, Agência Nacional de Telecomunicações — Telecommunications National Agency) are good examples of important federal autarchies in Brazil. These organs, however, have seldom participated in arbitrations especially because they operate, in the majority of cases, as regulatory (or supervisory) agencies and not as contracting parties even though this situation is slowly changing.

21. Public companies are private legal entities authorized by law to be formed with capital entirely state-owned, in order to perform activities of the interest of the administration, much like the private sector. Several banks are created in Brazil with this structure (Caixa Economica Federal — Federal Savings Bank — is a good example), as well as companies managing warehouses (Companhia Docas do Rio de Janeiro — Rio de Janeiro Dock Company) or those fostering tourism (BBTur Viagens e Turismo Ltda.).Unlike autarchies, which perform the role of regulators of certain economic, financial or service sectors, the public companies participate directly in economic activities getting involved in activities that could just as well be rendered by the private sector. The participation of public companies in arbitrations, as is intuitive, is frequent and has been increasing to the extent that this method of resolution of controversies develops in Brazil, so that it is not uncommon to see the Caixa Economica Federal involved in arbitrations concerning disputes related to the acquisition of corporate interests or shareholders’ disputes. Likewise, several companies administering ports and warehouses adhere to arbitral solution to resolve controversies arising from the commercial contracts entered into by them.

22. The participation ever more frequent of public companies — entities of the (indirect) public administration owned by the State — in commercial arbitrations is an important symptom that the country believes in the decrease of the transaction costs occurring in the arbitral solution of conflicts.

5. MIXED-ECONOMY COMPANIES

23. Besides such entities which are entirely State-owned (autarchies and public companies), other entities operate in an internal private law legal status, created by law for the exploitation of economic activities (organized as corporations), where voting shares are held in majority by the State: these are the mixed-economy companies, which have participation of the Public Power and of private parties in their capital and management and which are governed by the rules of commercial companies. These companies — which act heavily for the undertaking of economic activities or for the collective interest attributed to it by the State — use arbitration systematically as if any other Brazilian company.

24. The example of Petrobras S.A. is eloquent: this company, dedicated to the exploitation of oil and gas, has been systematically directing its most important contracts to arbitration, enabling teams of counsel to act in this manner of resolution of disputes.

6. WHAT THE BRAZILIAN COURTS HAVE SAID

25. The participation of the State in arbitration has naturally generated the manifestation of Brazilian courts, given that the entry into force of the Arbitration Law, in 1996, has provoked changes in our cultural pattern, and at that time there was a strong impression that arbitration should not be used by the Public Administration.

26. A first-instance decision (of great repercussion) caused extreme discomfort for all those betting on the development of arbitration in the country (which included the expansion of the arbitral solution also to the State domains):the widely known COPEL (Companhia Paranaense de Energia) case.13

27. COPEL is a mixed economy company, controlled by the State of Paraná and dedicated to the trade and distribution of energy. This company has entered into an agreement with UEG Araucária Ltda. When a contract dispute arose, an arbitration agreement establishing the ICC as competent to settle the arbitration was established, and the proceeding was so initiated in Paris, France.14 In an attempt to avoid the effects of the arbitral clause, COPEL filed an anti-injunction in Curitiba, capital of the State of Paraná, to declare the arbitral clause null based on the fact that COPEL, as a public entity, could not insert in a contract an arbitration agreement. The first-instance judge agreed with this thesis and, recognizing that COPEL engaged in an economic activity of the State interest (rendering of public service), has suspended the effects of the arbitration agreement. This decision was appealed and the Court of Justice of the State of Paraná overruled it, restoring the effects of the arbitration agreement.

28. There was a second negative precedent: the suit filed by CEEE (Companhia Estadual de Energia Elétrica) — a mixed-economy company with head office in the State of Rio Grande do Sul) against AES Uruguaiana Empreendimentos Ltda. The companies entered into a power supply agreement. Under the allegation that AES Uruguaiana would have unduly breached the agreement, CEEE initiated a condemnation demand requesting the losses arising from the alleged contractual breach. In its statement of defense, AES Uruguaiana alleged the existence of an arbitration agreement that, by consequence, would lead to extinction of the suit without decision on the merits, as per article 267, VII of the Brazilian Civil Procedure Code.

29. The first-instance judge, upon analyzing the motion to dismiss, considered that CEEE would be a company rendering an essential public service and therefore could not, lacking proper legal authorization, waive the right to due process of law to settle conflicts arising from public services rendered by it. AES Uruguaiana, in an attempt to revert the first instance decision, filed an appeal at the Court of Justice of the State of Rio Grande do Sul but such Court of Justice maintained the first instance decision affirming the free access to the Judiciary Power, as per article 5th XXXV of the Federal Constitution.

30. The two precedents cited, despite having caused discomfort in view of the first-instance decisions, served to settle a jurisprudence understanding which was later reaffirmed by the Superior Court of Justice, in the sense of determining that there is no impediment for mixed-economy companies to engage in arbitration.

31. The CEEE versus AES Uruguaiana case, by means of a special appeal, has reached the Superior Court of Justice, the judiciary body in charge of uniformity of federal law in Brazil. The decision, rendered in 2007,15recognized that when agreements entered into by a public company deal with the production or trade of goods capable of generating income and profits (despite being public services), the respective rights and obligations will be subject to settlement and subject to waiver, which allows their submission to arbitration.

32. The same decision (leading case), however, recognized — opter dictum— that the if activities rendered by a state company arise from the ‘imperial power’ of the Public Administration (so that their performance is directly related to the primary public interest), the respective rights and obligations will not be subject to waiver and, therefore, not subject to arbitration.

33. I note that the decision of the Superior Court of Justice did not make a distinction between mixed-economy companies dedicated to private-like activities and those dedicated to eminently public activities, a distinction the arbitrators in the COPEL case have correctly refused. The Court decision only made clear that there are matters which are connected to the economic activity (and are subject to arbitration) and there are matters which respect the very organization of the State or are part of activities which may be considered sensitive for social purposes (and are not subject to arbitration). The issue, therefore, pertains to objective, and not subjective, arbitrability.

34. This leading case ended the discussion about subjective arbitrability concerns mixed-economy companies. It is clear for Brazilians that such companies may submit to arbitration (subjective arbitrability). The route paved by the Court provides insight that there will also be arbitration support for autarchies and public companies: the tendency seems to be that recognizing Brazilian legislation does not create generic impediments for the entities in which the State participates or enters into arbitration agreements with. The limitation to arbitration, therefore, may only be brought if the matter in dispute is connected to sensitive issues that may render the dispute not subject to arbitration from an objective perspective.

7. INTERNATIONAL ARBITRATION AND LAWS APPLICABLE TO SUBJECTIVE ARBITRABILITY

35. The COPEL case cited above merits further examination to establish an initial parameter regarding the law applicable in defining subjective arbitrability.

36. The arbitral panel appointed to decide the controversy between COPEL and UEG Araucária was composed by Karl-Heinz Böckstiegel (President),Martin Hunter and Jorge Fontoura Nogueira. During arbitration, COPEL argued the matter was not subject to arbitration based on it being a mixed-economy company, involved in the development of an economic activity of public interest, such that its legal representative could not have inserted an arbitration agreement in the agreement executed. By a majority vote (arbitrator Jorge Fontoura Nogueira, the only Brazilian in the panel, was defeated) the arbitral tribunal decided that the controversy was subject to arbitration.

37. The rationale of the Arbitral Tribunal to solve the issue of subjective arbitrability arose from the examination of the issue from the perspective of the law applicable to the case at hand. The parties were in agreement that the subjective arbitrability should be governed by Brazilian law: the rules under which the two litigating companies were formed. On the other hand, the subjective arbitrability is a matter affecting the domestic public order. Therefore, the adequate method to deal with the theme would be, initially, to verify if the law applicable to the state-owned company would allow its participation in the arbitration; if the conclusion was negative, thus concluding for a violation of the domestic public order, it would be necessary to resort to international public order criteria. But this confrontation (domestic public order versus international public order)would only be faced if it were characterized that the arbitration agreement had violated local laws.

38. In the actual case, therefore, the Arbitral Tribunal examined if COPEL could have entered into an arbitration agreement according to Brazilian law; and would only proceed to examine the confrontation between domestic and international public order if the validity test according to local laws was negative.

39. The analysis that the Arbitral Tribunal made was perfect, demonstrating that a mixed economy company is not prevented by the Federal Constitution or by local laws from submitting disputes to arbitration. Furthermore, the Federal Constitution determines that such companies are submitted to legal regime of the private companies, which resorts to the Corporations Law where there is no restriction for the companies to submit their disputes to arbitration.

40. COPEL has unsuccessfully attempted to convince the Arbitral Tribunal that there would be two types of mixed economy companies, one would act exclusively in the private sector and the other would act in fields that could affect public interests of the State or its citizens: in the latter case, there could not be resolution of disputes by arbitration. This artificial distinction was rejected by the arbitrators, who concluded — invoking the precedent of ICC/11599/KGA16 that “[…] in view of all above considerations, in the present case, as well as in the above mentioned ICC case, the majority of the Tribunal concludes that COPEL has subjective arbitrability enabling it to enter into the arbitration agreement under which the present arbitration was commenced”.

41. The examination of this important precedent (particularly in view of the excellency of the decision) renders clear a satisfactory method of identification of the law applicable to analyze subjective arbitrability: the law that shall first be considered is the law of the place where the litigating party was organized. If such law allows for participation of the entity in arbitration, it seems that the issue is solved. If, however, the law of the place where the state-owned entity was formed points to a potential prohibition of arbitration under the dome of local public order, it will be necessary to resort to the international public order principles, which forbid the party to benefit from restrictions of its own domestic law to oppose arbitration. In summary, the principle of pacta sunt servanda prevails in international laws: if a State (or state entity) inserts in a contract an arbitration agreement, it cannot later on, upon surfacing of a controversy, argue domestic laws reasons (of a legal or an domestic public order nature) to excuse it from agreeing to solve the controversy in arbitration.

42. Nevertheless, this technically correct view faces a defiant pragmatic argument which is inserted into the New York Convention of 1958: in fact, article V(1)(a) of the Treaty shows that the recognition and enforcement of the award may be denied if it remains demonstrated any lack of capacity of the parties under the local laws applicable to them. The doctrine has kept this provision at bay in matters of subjective arbitrability, showing the difference between capacity and subjective arbitrability: the limitations on the capacity to submit to arbitration aim at protecting the litigating party, while the limitations on subjective arbitrability are connected to public law reasons.

43. Another sensitive issue on this matter is the importance of the law of the place of arbitration to detect subjective arbitrability because the same article VI(1)(a) allows to invoke in subsidiary manner, the law of the country in which the arbitral decision was rendered.

44. Even if such article concerns incapacity — which in itself demonstrates that it cannot be invoked in matters of subjective arbitrability — it is useful to clarify that the law of the place of the arbitration cannot in any way overcome the law chosen by the parties or the law of the place in which the state entity was formed. In other words, I consider certain decisions surprising (either from arbitrators or from state courts), which invoke the local legal system to discuss subjective arbitrability, violating the higher principle of pacta sunt servanda. The place of arbitration — in the absence of a manifestation otherwise — shall preserve its neutrality. If the law of the place of arbitration is invoked to qualify the arbitration clause, under the affirmation that the choice of place is an important factor of connection, it seems to me that we lose the great advantage of international arbitration, which is, neutrality.

8. ON THE ROAD TO UNIFORMITY?

45. There seems to be a reasonable consensus in the doctrine that concerns subjective arbitrability that the States may create limitations in the domestic scene, for the diverse state entities to participate in arbitrations. Such limitations, nevertheless, shall not be accepted in international arbitration then prevailling the general principle of pacta sunt servanda over the national public interests.

46. The international public order criteria, therefore, surpass those of domestic public order so that companies with state participation will not escape the obligation to resolve disputes in arbitration, on the excuse that they have inserted arbitration agreements that are lacking legal authorization or are in breach of the prevailing legislation.

47. I therefore reject the possibility of arbitrators or state judges resorting to the law of the place of arbitration to verify whether there is subjective arbitrability. The place of arbitration shall preserve its neutrality unless the parties expressly decide otherwise, it being unreasonable to disregard the law governing the arbitral convention (be it the domestic law of the party or the law chosen by the litigating parties) in favor of the law of the place of the arbitration.

48. I stress, in concluding these notes, that Brazilian law does not create obstacles for its government entities to engage in arbitration: Brazilian law is frankly favorable to arbitration and there is even — I dare to affirm — a strong incentive for more complex contracts to opt for more adequate dispute-solving mechanisms (in the present case, arbitration). By the way, it is now currently pending before Congress a bill to reform the Arbitration Law,17 which intends to insert a paragraph expressly foreseeing that disputes involving the Public Administration may be subject to arbitration.

1
Eduardo J. Couture, in his classical work “Vocabulario Jurídico” (Ed. De Palma, Buenos Aires, 1988) is not concerned with defining the word. Other legal dictionaries edited in Hispanic America on the same occasion also ignore the term.

2
See, for instance, the prestigious “Dicionário Contemporâneo da Língua Portuguesa” (Caldas Aulete, Delta Ed., Rio de Janeiro, 1974), which does not contain such a word.

3
As an example, the “Vocabulário Jurídico” (De Plácido e Silva, Cia. Ed. Forense, Rio de Janeiro, 1978) which does not define the term “arbitrability” in any of its four volumes.

4
This does not mean that the term “arbitrability” has a unanimous use: North Americans frequently use the term to designate the limit or scope of the arbitral convention.

5
Article 2060 of the French Civil Code states that “[O]ne may not enter into arbitration agreements in matters of status and capacity of the persons, in those relating to divorce and judicial separation or on controversies concerning public bodies and institutions and more generally in all matters in which public policy is concerned”. Act 75-596, of July 1975, states that “[H]owever, categories of public institutions of an industrial or commercial character may be authorized by decree to enter into arbitration agreement”.

6
Law of Arbitration, Royal Decree M/46 (25 April 1983), art. 3: “Government bodies may not resort to arbitration for the settlement of their disputes with third parties except after approval of the President of the Council of Ministers. This provision may be amended by a Resolution of the Council of Ministers”.

7
More about the subject in: SELMA, Lemes, “Arbitragem na Administração Pública — Fundamentos Jurídicos e Eficiência Econômica”, Ed. Quartier Latin,2007, pages 116 to 137.

8
Article 475 of the Brazilian Civil Procedure Code submits to the mandatory revision the decisions rendered against the Union, States and Municipalities and their respective autarchies and public law foundations so that such condemnation decisions will not produce effects until confirmed by a higher Court.

9
Article 188 of the Brazilian Civil Procedure Code: “The deadlines to statement of defense shall be quadrupled and the deadlines to appeal shall be doubled when the interested party is the State or the Public Attorneys’ Office.”

10
Law 9028/95, article 24-A: “The Union, its autarchies and foundations are exempt from [paying] costs, expenses and other court fees and from making the prior deposit and fine in rescissory action, in any jurisdictions or instances.

11
Law 8666/1993 provides the general rules for bidding processes. The following entities are obliged to conduct bids: entities of the direct Public Administration(Union, States, Municipalities and the Federal District) and entities of the indirect Public Administration (autarchies, public companies, mixed capital companies and foundations, among others).

12
Article 25 of the Bid Law (Law No. 8666/93) states that the bid is not required when competition is not viable, particularly: (i) for purchase of materials, equipment or goods that can only by supplied by a manufacturer, company or exclusive commercial agent, regardless of the brand; the proof of exclusivity shall be made by a statement provided by the local commercial registry of the place where the bid, the work or the service would be performed, by the Union, Employer Federation or Confederation or, further, by equivalent entities; (ii) in order to hire the technical services listed in article 13 of this law, of a peculiar nature, from professionals or companies notoriously specialized; the bid waiver being forbidden in case of publicity and broadcasting services; (iii) for the hiring of professionals of any artistic sectors, either directly or by means of an exclusive agent, provided that [such persons] are recognized by the critics or the public opinion.

13
Re. the COPEL case, see comments in Brazilian Arbitration Review, vol. 3, pages170 to 187.

14
Case ICC12656/KGA/CCO. The partial award on jurisdiction is published in its entirety in the Arbitration and Mediation Review, vol. 11, pages 257 to 318.

15
See more comments to the Superior Court of Justice, Special Appeal No.612.439-RS in: “STJ Confirms validity of the arbitration agreement entered into by a mixed-economy company rendering public service” (Arbitration and Mediation Review, vol. 12, pages 59 to 68); in “Arbitragem e a Administração Pública — comentários ao acórdão do Superior Tribunal de Justiça no Recurso Especial nº 612.439/RS, Caso AES Uruguaiana (Brazilian Arbitration Review, vol.12, pages 98 to 120); and also in Arbitration and Mediation Review, vol. 11,pages 177 to 183.

16
This refers to a preliminary award dated 28 April 2002 in which a Brazilian subsidiary of a North American company signed a power purchase agreement with two Brazilian companies, public services concessionaires, for the generation and distribution of energy. When the dispute arose, the matter of subjective arbitrability was repealed on the grounds that article 1 of the Brazilian Arbitration Law grants a general permission for the resolution of disputes on freely transferable property rights by arbitration.

17
Legislation Bill No. 7108/2014.