Revista Brasileira de Alternative Dispute Resolution - Brazilian Journal of Alternative Dispute Resolution - RBADR

Expediente

2026-07-03T15:15:11-03:00

Double Trouble in Digital Twin Healthcare Systems - Dispute Resolution Beyond Liability

2026-07-03T15:47:45-03:00

The paper examines dispute resolution in healthcare digital twin (HDT) systems, focusing on the transformation from traditional liability models toward integrated risk governance frameworks. The study employs doctrinal, comparative, and socio-technical analysis to explore how emerging regulatory regimes (EU, US, UK), standards, and case law interact with the architecture of HDT systems. It is argued that disputes in this domain are inherently multi-layered, involving data governance, model performance, human-system interaction, and lifecycle management. The research identifies key failure modes and stakeholder responsibilities, demonstrating that classical liability doctrines are insufficient to address the complexity of HDT ecosystems. Particular attention is given to the role of standards (ISO, IEC, NIST) and regulatory compliance as sources of evidentiary value in disputes. The paper proposes an integrated model (ILRG-HDT) that aligns the technical architecture, legal accountability, and dispute-resolution mechanisms, including ADR pathways. It is concluded that dispute resolution in HDT systems should be understood as the legal dimension of risk governance, where traceability, documentation, and institutional design determine both liability allocation and the possibility of fair adjudication.

Balancing Reform and Reality

2026-01-28T11:33:19-03:00

The draft Arbitration and Conciliation (Amendment) Bill, 2024 (hereinafter “Draft Bill”) is a significant step in India’s ongoing campaign to enact legislation on modern lines and in harmony with contemporary international practices. The Draft Bill is considered a major legislative reform aimed at expediting procedures, minimising delays, and curbing undue judicial interference, thereby complementing India’s efforts to become an arbitration-friendly destination. Despite these objectives, significant doctrinal, procedural and institutional uncertainties arise from the proposed amendments, raising questions about whether the reforms will achieve their stated goals. This article seeks to map the changes proposed by the Draft Bill and place them in the broader context of India’s arbitration law reform. It analyses the transformative potential of the proposed changes for India’s dispute-resolution landscape vis-à-vis international benchmarks. The study adopts a doctrinal and analytical methodology, drawing on statutory analysis, judicial precedents and comparative international arbitration practices. The analysis finds that the Draft Bill strengthens efficiency and institutionalisation in several respects. However, specific proposals risk generating fresh ambiguities and procedural fragmentation if not carefully implemented. It also attempts to present focused suggestions for refining the implementation of the rescue provisions, maintaining procedural autonomy, popularising institutional arbitration, and aligning arbitration practice with related dispute-resolution mechanisms. It demonstrates that the success of the reforms will hinge upon the effective execution of policy and the translation of legal intent into actual arbitral practice. In this manner, the reforms may help India achieve its ambition to become a global arbitration hub.

Incumprimento, danos punitivos e ordem pública – Sobre os limites ao reconhecimento da sentença arbitral em Portugal e no Brasil

2026-07-03T16:21:18-03:00

This study examines the constraints on the recognition and enforcement of foreign arbitral awards imposing punitive damages within the jurisdictions of Portugal and Brazil. Despite the lingering dogmatic resistance prevalent in Civil Law traditions, the pragmatism of the common law, alongside established legal institutes that already permit a clear dissociation between actual loss and final indemnity, has permitted a necessary opening of the recognition and enforcement system. Considering this and based on settled jurisprudence, this study proposes that the international public policy clause does not constitute an absolute barrier to the recognition of punitive damages, provided that the award remains proportional.

The Normative Assessment of Soft Law in International Commercial Arbitration

2026-07-03T17:40:23-03:00

The proliferation of privately crafted soft-law instruments in international commercial arbitration presents a normative paradox: despite lacking formal state enactment, these guidelines increasingly shape transnational dispute resolution. This study addresses a critical gap in the literature by proposing a systematic normative framework to evaluate the legitimacy of soft law and trace its evolution from legal pluralism to transnational codification. Employing an inductive, multi-pronged methodology, the research combines doctrinal analysis of key instruments (UNCITRAL Model Law, IBA Guidelines, UNIDROIT Principles) with empirical review of arbitral practice. The study applies a four-criteria framework–voluntariness, predictability, fairness, and efficiency–explicitly anchored in jurisprudential theory (Hart, Schultz, Zumbansen, Cotterrell), to analyze Finazzi Agrò’s baseline dataset of 230 awards, contemporary Queen Mary and ICC/SICC survey trends, and comparative jurisprudence from Singapore, Germany, and Brazil. Analysis demonstrates that soft law overcomes its non-binding character through a circularity paradox, wherein repeated arbitral application, institutional standardization, and sustained commercial reliance function as a functional substitute for traditional state practice. The four-criteria framework reveals how tribunals operationalize soft law to enhance award legitimacy and mitigate enforcement risks under Article V(2)(b) of the New York Convention. Empirical and comparative data confirm a sustained upward trajectory in soft-law citation, with instruments like the UNIDROIT Principles evolving into a de facto global contract code that national courts increasingly recognize and apply. Soft law operates as a dynamic normative engine driving transnational codification rather than a marginal advisory tool. The proposed legitimacy-driven framework bridges theoretical and practical divides, offering a structured approach to arbitral reasoning that aligns private ordering with domestic judicial review. These findings underscore a structural shift toward a hybrid, pluralistic legal order where arbitration serves as the primary laboratory for the gradual harmonization of global commercial law.

Designing an Alternative Dispute Resolution Model for Local Anthropogenic Environmental Damage

2026-07-06T13:08:13-03:00

The author of this article examines the design of an alternative dispute resolution (ADR) model adapted to the specific features of disputes over local anthropogenic environmental damage. The research employs a range of methods, including comparative legal analysis, structural-functional analysis, doctrinal analysis, and case study, to identify procedural, institutional and competence-based elements that determine the effectiveness of environmental mediation and conciliation. The author argues that environmental disputes possess distinctive characteristics – a multiplicity of stakeholders, a public-interest component, technical and scientific complexity, and long-term consequences – that require specialized ADR design rather than the mechanical transposition of commercial mediation models. Drawing on the experience of the United States, New Zealand, international conciliation practice and BRICS countries, the article develops criteria for the mediability of environmental disputes, identifies competence requirements for environmental mediators and addresses the enforcement gap between mediated settlement and actual compliance. The article concludes with recommendations for modernizing Russian environmental and procedural legislation, with particular attention to the constitutional foundations of access to environmental justice under articles 42, 45 and 55 of the Constitution of the Russian Federation.

Alternative Dispute Resolution in Russia

2026-07-06T14:44:10-03:00

This article is devoted to the study of the institution of alternative dispute resolution (hereinafter – ADR) in Russia. The objective is to analyze the current state of the ADR system in Russia, to identify the key problems of its functioning, and to determine promising directions for its development. The following methods were employed in the course of the study: the dialectical method – making it possible to consider ADR as an evolving phenomenon and to identify internal contradictions in its legal regulation and practical application; analysis and synthesis – employed for the comprehensive examination of ADR, from the initial analysis of legislation, judicial practice, and statistics to the synthesis of the data obtained for the formation of a holistic conception of the effectiveness of ADR and the development of recommendations; induction and deduction – which made it possible to move from general theoretical propositions to particular cases of their application (deduction) and, conversely, on the basis of the analysis of individual provisions and problematic situations, to draw generalizing conclusions about the state of the entire system (induction); the systemic method – by virtue of which ADR is regarded as a complex, multi-level system encompassing mediation, negotiation, arbitral proceedings, and others, making it possible to establish connections between its elements and the external environment (state courts, society, the economy). The study also employed: the formal-legal method (to identify gaps in the legislation and to formulate proposals for its improvement); the comparative-legal method (analysis of successful models of mediation and arbitration in other countries has made it possible to propose optimal pathways for the development of the Russian system); and the historical-legal method, which was employed to examine the genesis of ADR and which has made it possible to understand the deep-seated socio-cultural causes of contemporary distrust of ADR and to substantiate the need to form a national model that takes account of historical traditions. Results: systematization of the existing methods of alternative dispute resolution within the Russian legal system; analysis of the regulatory framework governing the application of ADR procedures; identification of the advantages and disadvantages of various forms of alternative dispute resolution; assessment of the effectiveness of the practice of applying the law in this area; identification of institutional barriers to the development of alternative dispute resolution methods in Russia; and formulation of proposals for the improvement of legislation. The authors conclude that, in the context of the rapid development of digitalisation and the emergence of the information society, one of the most promising directions for the modernization of the aforementioned procedures should be the resolution of disputes through the application of internet technologies.

Algorithmic Decision-Making and the Legitimacy of Arbitral Justice

2026-02-14T19:31:24-03:00

The integration of artificial intelligence into international commercial arbitration has engendered a structural fracture between legal rationality, grounded in normative justification, and the statistical logic of algorithms, based on opaque correlations. This epistemic tension compromises the arbitrator’s agency and erodes the legitimacy of the arbitral award, particularly in the absence of regulatory frameworks capable of translating algorithmic outputs into legal reasons. The objective of this research is to design a multilevel normative model that enables such epistemic translation by articulating protocols for counterfactual explainability, substantive audits of normative biases, and interoperability standards to safeguard legal diversity against algorithmic homogenization. The findings enable the reconstruction of arbitral deliberation as an autonomous rational practice, even within AI-assisted contexts. It is concluded that human oversight is legally effective only when integrating normative mechanisms that guarantee the rational controllability of the award, thus configuring a pluralistic technological governance compliant with transnational procedural public policy.

Procedural Safeguards in European Community Law and their Harmonization as a Condition of Legitimacy for Negotiated Justice

2026-03-06T11:24:45-03:00

Negotiated justice has established itself today as the predominant Alternative Dispute Resolution (ADR) mechanism in the criminal sphere, shifting traditional litigation toward consensus-based models between parties. Under this premise, the objective of this article is to analyze the indirect impact that European Union Directives on procedural safeguards have on the legitimation of these mechanisms within Member States. Through a qualitative documentary research methodology, utilizing a hermeneutic and systematic approach, European regulations, CJEU case law, and legal doctrine are interpreted to unravel the meaning and practical effects of said directives. The main result of the analysis is the identification of a "balancing effect": by standardizing fundamental rights such as access to information and the case file (Directive 2012/13/EU), effective legal assistance (Directive 2013/48/EU), and the presumption of innocence (Directive 2016/343/EU), the EU establishes a "minimum floor" of safeguards that rebalances the procedural relationship. This regulatory framework transforms negotiation, allowing the accused's consent to be a strategic and informed decision rather than the result of coercion or information asymmetry. It is concluded that the harmonization of these procedural safeguards is an indispensable condition for the legitimacy of a "European negotiated justice," constituting the minimum standard upon which any future regulation on the matter must be built to strengthen the Area of Freedom, Security and Justice.

Consumer Acceptance of AI-Assisted Online Dispute Resolution in Brazil

2026-07-07T15:55:38-03:00

The integration of artificial intelligence into online dispute resolution (ODR) reconfigures the psychological foundations on which consumer redress rests, yet empirical evidence on the antecedents of its acceptance remains scarce. This study develops and tests an integrative model that extends the Technology Acceptance Model by incorporating trust in artificial intelligence, perceived risk, hope as a motivational resource, and algorithmic literacy as cognitive competence. The model is examined through covariance-based structural equation modeling on a sample of 4,496 Brazilian adult consumers aged 26 to 65. Measurement properties are strong, and the structural model explains 60.0% of the variance in perceived usefulness and 41.8% of the variance in behavioral intention. Bootstrapped mediation analyses reveal two important findings: algorithmic literacy exerts a substantial total indirect effect on intention via trust and perceived ease of use, and hope exerts its effect on intention primarily via perceived ease of use. The results offer a richer acceptance framework for AI-assisted ODR, with implications for platform design and for the Brazilian Artificial Intelligence Strategy and consumer protection infrastructure.

The place of characteristic performance as the primary connecting factor

2026-07-07T17:15:11-03:00

When parties fail to designate the applicable substantive law in international commercial contracts, arbitrators must decide which law governs the dispute. This paper employs doctrinal analysis, combined with evaluative reasoning, to systematically review the scholarly literature, arbitration laws, and institutional rules to identify the key connecting factors relied upon in making this determination. It examines the extent to which these factors support predictability and legal certainty in international commerce. The paper critically evaluates key connecting factors commonly employed in international arbitration, including the place of contracting (locus contractus), the habitual residence of the parties, and the place of performance (locus solutionis) The analysis identifies significant limitations with these connecting factors The place of contracting, for instance, may be fortuitous and hold little relevance for commercial transactions, while habitual residence can unfairly favour one party The paper argues that the locus solutionis – specifically, the principal place of characteristic performance – emerges as the most suitable connecting factor for international commercial arbitration It anchors the applicable law in the location that decisively determines the performance of the defining contractual obligation This approach best reflects the parties’ legitimate expectations while offering arbitrators principled guidance in exercising their discretion The paper recommends that arbitration laws expressly incorporate connecting factors, particularly the principal place of characteristic performance, to improve predictability and consistency in determining the applicable substantive law in international commercial disputes.

From mediator to chatbot

2026-07-07T17:50:33-03:00

This article investigates the prospects and limitations of deploying intelligent chatbots on digital platforms for conflict resolution, considering current legal frameworks and technical constraints. The central research problem lies in the discrepancy between the increasing practical use of intelligent chatbots in digital alternative dispute resolution (ADR) procedures and the persistently low level of judicial confidence in them, a gap that stems from the absence of clear criteria for assessing the accuracy and justifiability of decisions reached through artificial intelligence technologies. The research combines a doctrinal-legal analysis of relevant Russian regulatory acts and Russian arbitral and judicial practice with a case study of the chatbot functionality available on leading digital platforms with developed online dispute resolution systems (eBay, Alibaba, Modria, Yurrobot), and a comparative review of international experience in the United States, the United Kingdom, China, and Colombia. The analysis identifies a clear “trend of mistrust” in Russian judicial practice towards information and data generated by AI based digital assistants, evidenced by recent rulings of the Sixth Court of Cassation, the Supreme Court of the Republic of Crimea, the Eleventh Arbitration Court of Appeal, the Intellectual Property Court, and several arbitration courts. On this basis, the article proposes a five-stage model of digital support for the ADR process by intelligent chatbots, encompassing issue identification, data and background analysis, maintenance of focus on the dispute, optimisation of information resources for decision-making, and expanded access to digital forms of conflict resolution, and formulates six normative recommendations for the integration of intelligent chatbots into ADR procedures, including the development of evaluation methodologies for AI-generated information, certification of AI algorithms, and the establishment of standards for resolving disputes through chatbot functionality. The findings underscore that automating ADR does not eliminate the need for human oversight: chatbots are tools, not replacements for lawyers and mediators, and fairness and accountability remain the guiding principles for deploying artificial intelligence in dispute resolution.

The improper delegation of the arbitrator’s personal function to artificial intelligence as grounds for annulment of the arbitral award

2026-04-11T14:39:45-03:00

The primary aim of this article is to determine whether delegating the decision-making function of arbitrators to a generative artificial intelligence system constitutes grounds for the annulment of an arbitral award. To achieve this purpose, a dogmatic and analytical methodology is employed, focusing on the analysis of the Peruvian Arbitration Law (in accordance with the UNCITRAL Model Law). This is complemented by a review of recent international case law, with particular emphasis on Canadian jurisprudence in Association des ressources intermédiaires d’hébergement du Québec v. Santé Québec. The findings of this analysis demonstrate that, while the use of AI is entirely valid as an organizational support tool during the proceedings, delegating decision-making completely violates the intuitu personae nature of the arbitral function. Furthermore, it severely infringes upon the right to due process, particularly the fundamental guarantee of a reasoned decision. Consequently, it is concluded that surrendering this strictly personal duty to a machine represents an unacceptable departure from the parties’ original agreement, thus unquestionably justifying the annulment of the award.

Mediation and Evidence

2025-10-13T19:46:33-03:00

This article explores the legal and ethical boundaries of confidentiality in mediation, particularly concerning the admissibility of information in subsequent litigation. Mediation is widely valued for its confidential nature, which fosters open dialogue and facilitates dispute resolution. However, this confidentiality may come into conflict with the need for transparency and fairness in court proceedings. The article examines how various jurisdictions regulate the use of information shared during mediation, focusing on legal frameworks, statutory exceptions, and key judicial decisions. It concentrates on the regulation of mediation confidentiality primarily in Turkish and Australian legal systems, while also referencing relevant international instruments. To better understand judicial treatment of mediation-related evidence, the article distinguishes three key legal bases of confidentiality: contractual agreements, statutory privileges, and general evidentiary rules, each of which carries distinct procedural consequences and exceptions. It also addresses the ethical dilemmas that arise when balancing the right to a fair trial with the principle of mediator confidentiality. By analysing these tensions, the article highlights inconsistencies in national and international approaches and calls for a more coherent and harmonised legal framework to preserve both the integrity of mediation and the interests of justice in litigation.

Editorial

2026-07-03T15:24:42-03:00

Editorial

2026-07-03T15:38:03-03:00