The Constitution of the Federative Republic of Brazil of 1988 (CFRB/98) provides as follow:

Article 5 (XXXV) provides that:

The Brazilian Arbitration Act 1996 (BAA) provides as follow:

Article 21(2) provides that:

Article 32 (VIII) provides that:

A dispute between Liebherr Brasil Guindastes e Máquinas Operatrizes Ltda (Liebherr) and Chaval Navegação Ltda (Chaval) arose from the installation of ship cranes produced by Liebherr. The cranes, installed in a Chaval ship did not work and arbitration proceeding were commenced. During those proceedings, a marine engineer report identified that the cranes were broken even before their installation on the ship, and therefore the arbitral tribunal ruled that Liebherr was to indemnify Chaval for the loss of profit due to breach of contract. During the proceedings, Liebherr requested a second expert examination to verify the loss of profit alleged by Chaval. The arbitral tribunal, however, decided that no further evidence or expert report was needed for defining the loss of profit.

As a result, Liebherr filed an action seeking annulment of the arbitral award based on the argument that the dispute required an additional accounting expert report to confirm the value of the loss of profit, as the marine engineer report was not prepared for that purpose.

On 27 March 2012, the lower court judge rendered a decision in favour of Liebherr and vacated the arbitral award under Articles 21(2) and 32 (VIII) of the BAA. The judge ruled that an accounting expert report was necessary, because the loss of profit resulting from the crane defects as referred to in the proceedings was not absolute.

By a majority , the TJRJ upheld the lower court's decision. The court defended its jurisdiction to analyse the possibility of annulment of the arbitral award under Article 5 (XXXV) of the CFRB/98. It found that the arbitral tribunal had violated Liebherr's right to be heard in accordance with Articles 21(2) and 32 (VIII) BAA, as the arbitral tribunal had ordered Liebherr to pay a significant amount as indemnification without an expert report to verify the loss of profit.

Chaval filed a motion for clarification against the TJRJ decision, which was dismissed by a judgment of 6 February 2013.

The BAA grants arbitrators the power to determine what evidence is deemed necessary to resolve the dispute, that is, the arbitrators are not bound by the parties' request for presenting evidence and are not obliged to allow all evidence sought by the parties. Arbitrators are free to reach their own conclusions based on the facts of the case. Therefore, the dismissal of an expert report by an arbitral tribunal for the purposes of calculating liquidated damages, such as in this case, cannot be considered, per se, a violation of the right to be heard. The TJRJ decision is an isolated case and if a special appeal is filed by Chaval, it could be overturned by the Superior Court of Justice (STJ).