Interdependência entre os procedimentos de anulação e de execução: estudo comparativo com foco na legislação Brasileira e Alemã [Interdependency between setting aside and enforcement procedures: a comparative study focusing on Brazilian and German law]

This comparative case study unveils a serious technical flaw of the UNCITRAL Model Law on International Commercial Arbitration regarding the time limit for invoking defects of an international arbitral award: due to an inconsistent equation of foreign awards and awards made inland, the rules on enforcement cancel the limitation period of three months for requesting setting aside, thus allowing the party that lost arbitration to just await enforcement procedures before reacting. This structural defect is reproduced in jurisdictions that have been influenced by the Model Law, such as the Brazilian arbitration law of 1996 and the Paraguayan law of 2002. The comparison with the adoption of the Model Law by the German legislator shows how this defect can be avoided. Finally, the practical consequences of the question are evaluated.