Brazilian Superior Court of Justice (STJ): 90-day time limit to challenge an arbitral award applies both to annulment actions and to the enforcement stage

Under the Brazilian Arbitration Act (Law No. 9,307/1996, article 33, §1), an arbitral award may be challenged before the courts through an annulment action within 90 days, counted from the notification of the award (whether partial or final) or from the decision on requests for clarification.

The statute also allows the nullity of the award to be raised at the enforcement stage, by means of an objection to the enforcement of the arbitral award (article 33, §3).

When ruling on Special Appeal No. 2,212,083/SP, the Third Panel of the STJ reaffirmed that the 90-day statutory time limit also applies when nullity is raised at the enforcement stage. Therefore, an objection to enforcement does not reopen the possibility of challenging defects in the arbitral proceedings after this period has elapsed.

Once this deadline has expired, the enforcement stage may still address the matters set out in article 525, §1 of the Brazilian Code of Civil Procedure. However, the possibility of revisiting the validity of the arbitral proceedings is time-barred.

In the case at hand, the appellant argued that nullity could be raised at any time during enforcement and that public policy matters would not be subject to the 90-day time limit. The Justice rapporteur, Ricardo Villas Bôas Cueva, rejected this argument and held that, although the objection to enforcement is the appropriate procedural avenue to challenge the arbitral proceedings, it must comply with the 90-day time limit.

The STJ’s decision reinforces the need for strict compliance with the statutory deadline and requires parties to promptly assess any potential grounds to set aside the arbitral award. It also enhances predictability, legal certainty, and stability in the arbitration system.