From Walter Stuber, 10 Traps to avoid in drafting arbitration agreements: 

Trap 1- Is The Issue Arbitrable?

The first trap is to avoid the inclusion of a matter that cannot be arbitrated in the arbitration agreement. Some types of disputes are deemed to be non-arbitrable in Brazil.

The Brazilian Arbitration Act expressly provides that parties must have full legal capacity in order to arbitrate a dispute and the subject matter must be pecuniary patrimonial and negotiable rights (direitos disponíveis), i.e. rights over which the parties may negotiate.

Most commercial matters may be arbitrated, including many when the government or government-controlled entity is one of the parties.

Certain matters, however, may not be arbitrated even if the parties with full legal capacity were agree to arbitrate them, such as family matters, certain public law matters, and possibly individual employment-related matters, according to a recent precedent of the Brazilian Superior Labor Court.

Furthermore, an arbitration clause is only valid and effective in a consumer contract or an adhesion contract, in the following cases: (i) when the consumer of the adhering party initiates the arbitration; (ii) if the provision is in boldface; or (iii) when the arbitration clause is established in a separate signed document. In essence, in all these cases, the arbitration agreement is only deemed valid and enforceable if the weakest party (the consumer of the adhering party) wishes to resolve the dispute through arbitration.

If, during the course of the arbitral proceedings, a dispute arises concerning rights over which a party may not dispose, and once convinced that the final decision may depend thereon, the arbitrator(s) may refer the parties to the State Court having jurisdiction, ordering a stay of the arbitral proceedings. Then, the arbitral proceedings shall recommence after the preliminary question is settled and evidence has been entered in the file of the final non-appealable judgment thereon.

Trap 2- Inadequate Choice of the Applicable Rules

Trap 3- Non-fullfillment of the Mandatory Requirements

Trap 4 – The Arbitration Clause is Distinct from the Main Agreement.

Trap 5 – Choice of Arbitrators.

Trap 6 – Multi-party Agreements.

Trap 7 – Payment of Fees to the Arbitrator(s).

Trap 8 – Confidentiality.

Trap 9 – Definition of the Limits of the Arbitration.

Trap 10 – State Immunity.

Read more about each [here].