The plea of state immunity, the impact of national law elements and a comparative analysis of the law and practice of international commercial arbitration in Brazil.

摘要

International commercial arbitration is the preferred method of dispute resolution for international disputes. However, unexpected problems could arise when the dispute in question involves a State party due to the sovereign status of State parties. A State party could plea sovereign immunity and such plea could have a disturbing impact on international commercial arbitration. In addition, even if there is no sovereign party involved, parties to international commercial arbitration could face further problems due to the impact of national law elements in this international method of dispute resolution. In fact, unforeseen national laws and the unwanted interference of national courts could disrupt the arbitration process.;In this context, this dissertation revisits those problematic areas to provide some clarity on the subject and make some recommendations to improve the existing scenario. Chapter One offers a comparative study of the plea of state immunity in international commercial arbitration and shows that sovereign immunity rules might significantly impair the effectiveness of international commercial arbitration involving a State party. Chapter Two, analyzes the current level of harmonization achieved in international commercial arbitration, evaluates the impact of national law elements in international commercial arbitration and examines the feasibility of the delocalization theory. Finally, Chapter Three focuses on the law and practice of international commercial arbitration in Brazil with the purpose of finding out whether the legal framework for arbitration Brazil is in conformity with the internationally accepted standards.