The quest for consent in BIMCO standard form contracts: a Brazilian perspective

Abstract

The present article aims at analysing consent in the field of maritime arbitration, focusing on a precedent of the Brazilian Superior Court of Justice (STJ) in 2015, related to vessel “Happy Dynamic”. On the occasion, the STJ denied the recognition and enforcement of a foreign arbitrai award because the court understood that there was no proof of the charterer’s consent to arbitrate eventual disputes arising out of a BIMCO standard form contract. This article intends to present the possibility that the precedent be overruled through two approaches: (i) recognizing that the consent to arbitrate can occur by presumption, implicitly or tacitly in BIMCO contracts and (ii) by applying the New York Convention, which allows proving of the existence and the validity of the arbitration agreement without an specific signing of such clause in the underlying contract.