ARBITRATION
RULES
1. Subjection to these Rules
1.1 - The parties that agree, through a convention of arbitration
clause, to submit any pending issue that has arisen to the
Mediation and Arbitration Chamber of São Paulo, hereinafter
referred to as the Chamber, be it through a clause-type or another
manner, accept and remain bound to these Rules and the Internal
Rules of the Chamber.
1.2 - Any alteration to these Rules that has been agreed to by the
parties will only be applicable to the specific case.
1.3 - The Chamber itself does not resolve the controversies
submitted to it. It administers and insures the correct development
of the arbitration proceedings, indicating and appointing
arbitrator(s), when not provided for in another manner by the
parties.
2. Preliminary Provisions
2.1 - In a separate document that contains the arbitration clause,
establishing the authority of the Chamber to settle contractual
controversies that may be solved by arbitration, the interested
party should notify the Chamber of its intent to install
arbitration, hence indicating the question that will be the subject
of arbitration, its value, the name and complete qualification of
the other party(s), attaching a copy of the agreement and other
documents relevant to the litigation.
2.2 - The Chamber will send a copy of the notification received to
the other party(s), inviting them to, within fifteen (15) days,
indicate the arbitrator and the respective substitute, as set forth
in the arbitration clause, forwarding a list of names that compose
the body of arbitrators that may be indicated, as well as a copy of
these Rules. The litigant that installed the arbitration
proceedings will have an identical deadline to indicate an
arbitrator and a substitute.
2.3 - The Chamber, within two (2) days from the termination of the
deadline set forth in article 2.2, will inform the parties with
regards to the indication of the arbitrators by the opposing
party.
2.4 - The chairman of the Arbitral Tribunal will be chosen by
mutual accord by the parties, preferably from the Chamber
arbitrators body, within ten (10) days, after what is set forth in
article 2.3. All of the names indicated will be submitted for the
approval of the president of the Chamber. The approved arbitrators
will state their acceptance, signing the Statement of Independence,
installing and beginning the arbitration, summoning the parties to
prepare the Term of Arbitration within ten (10) days time.
2.5 - If any of the parties fail to indicate its arbitrator and
the respective substitute by the deadline established above, the
President of the Chamber will make the appointment. It equally
falls to the President of the Chamber to indicate, preferably from
among the member of the body of arbitrators of Chamber who will
serve as Chairman of the Arbitral Tribunal, in the absence of said
indication, as established in article 2.4.
2.6 - The Arbitral Tribunal will be comprised of three (3)
arbitrators, the parties may agree that the litigation may be
settled by a single arbitrator, indicated mutually by the parties,
indicating a substitute, within fifteen (15) days time. Once that
deadline has expired, if the parties have not indicated a single
arbitrator, he or she will be appointed by the President of the
Chamber, preferably from the members of the Body of
Arbitrators.
2.7 - The institution of arbitration by a single arbitrator will
obey the same procedure as set forth in these Arbitration Rules
with three arbitrators (Arbitral Tribunal).
2.8 - When there are various plaintiffs and defendants (arbitration
for multiple parties), each side will mutually indicate an
arbitrator and a substitute, observing what is set forth in
articles 2.1 through 2.4. In the absence of an agreement with
regards to the indication, it will be the responsibility of the
President of the Chamber to do so, as set forth in article 2.5,
including for the indication of the Chairman of the Arbitral
Tribunal.
3. Term of Arbitration
3.1 - The parties and the arbitrators will prepare a Term of
Arbitration, which may have the assistance of the Chamber. The Term
of Arbitration will contain the names and qualifications of the
parties and the arbitrators indicated by them, as well as their
substitutes, the name and qualification of the arbitrator who will
function as the Chairman of the Arbitral Tribunal, at which time
the award will be proffered, authorizing the arbitrators or not to
judge ex aequo et bono, the purpose of the litigation, the
approximate value and the responsibility for the payment of the
procedural costs, expert examination and arbitrator fees, as well
as the statement that the Arbitral Tribunal will obey the deadlines
and procedures set forth in these Rules.
3.2 - The parties will sign the Term of Arbitration along with the
arbitrators indicated and their substitutes, as well as two
witnesses. The Term of Arbitration will remain filed at the
Chamber. The absence of the signature of any of the parties will
not impede the regular processing of the arbitration.
4. Arbitration Agreement
4.1 - Should there be no arbitration clause, and the parties are
interested in solving the litigation through arbitration, an
arbitration agreement will be prepared, signed by the parties and
by two witnesses, containing what is set forth in article
3.1.
5. The Arbitrators
5.1 - Both arbitrators that are members of the Body of the
Arbitrators of the Chamber as well as others that are not may be
appointed as arbitrators, provided that they are not impeded,
pursuant to article 5.2.
5.2 - A person may not be appointed an arbitrator that:
a) is party to the litigation;
b) has intervened in the litigation as an attorney, witness or
expert for any of the parties;
c) is the spouse or relative through the third degree of any of the
parties, attorney in fact or attorney;
d) participates on the board or administration of the legal entity
that is party to the litigation, or holds interest in its
capital;
e) is intimate friend or enemy of any of the parties or its
attorney;
f) in any other manner holds direct or indirect interest in the
judgment in the case in favor of any of the parties or has made
statements previously, opining on the litigation or has counseled
some of the parties;
g) has acted as a mediator before the arbitration, save an
agreement to the contrary by the parties.
5.3 - In the occurrence of any of the hypotheses referred to in the
previous article, it will be the responsibility of the arbitrator
to state, at any time, his or her own impediment or suspension and
to refuse the appointment, or present renunciation, even when he or
she has been indicated by both parties, being held personally
responsible for the damages that he or she may cause by not
observing this duty.
5.4 - If, throughout the course of the arbitration proceedings,
some of the causes of impediment or suspension should occur, or
there is a death or incapacitation of any of the arbitrators, he or
she will be substituted by the arbitrator designated in the
Convention of Arbitration or Term of Arbitration.
5.5 - In the event that the substitute cannot assume his or her
duties for any reason and for any period of time, it will be the
responsibility of the Chamber President to indicate an arbitrator,
preferably from the members of the Body of Arbitrator.
5.6 - The arbitrator, in the performance of his or her function,
should be independent, impartial, discreet, diligent and competent,
observing the Ethical Code prepared by the Chamber.
6. The Parties and the Attorneys in Fact
6.1 - The parties may be represented by an attorney in fact, as
well as by a constituted attorne
6.2 - Save an express provision to the contrary, all communication,
notifications and summons for the procedural acts will be made to
the attorney in fact appointed by the party.
6.3. - The constituted attorneys will enjoy all of the faculties
and prerogatives assured to them by the legislation and by the
Advocacy Statute and the Bar Association, and they should execute
their mandate in strict observance to said rules and with high
ethical conduct.
7. Notifications, Deadlines and Delivery of
Documents
7.1 - For all purposes set forth in these Rules, the notifications
will be made through registered letter or notary office. They may
also, whenever possible, be made through fax, telex, e-mail or
through the equivalent mean, with confirmation by the original
documents or copies through registered main or courier
service.
7.2 - The notification will determine the deadline for the
fulfillment of the requested measure, this being counted by
consecutive days. The date of the actual delivery of the
notification will be considered for the countdown to the
deadline.
7.3 - Any and all documents addressed to the Arbitration Tribunal
will be delivered and filed at the Office of the Chamber, in the
number of counterparts equal to the number of arbitrators, parties
and a copy to be filed at the Chamber.
7.4 - The deadlines set forth in this regulation may be extended,
strictly if necessary, at the discretion of the Chairman of the
Arbitral Tribunal, or the President of the Chamber, with regards to
article 2.
7.5 - In the absence of a deadline stipulated to perform a
specific task, the deadline of five (5) days will be set, without
limitation to what is set forth in article 7.4.
7.6 - Documents in a foreign language will be translated into
Portuguese through an open translation, when necessary.
8. The Procedure
8.1 - At the start of the arbitration, the Chairman of the Arbitral
Tribunal may summon the parties and other arbitrators to a
preliminary hearing, wherein a secretary will be appointed, if
necessary. Clarifications regarding the proceedings will be made
for the parties, taking the necessary steps for the regular
progress of the arbitration.
8.2 - The parties will have ten (10) days from the date of the
hearing or from the notification is sent to them for that purpose
to present their written allegations, indicating the proof that
they intend to produce, when there is any.
8.3 - Within the five (5) subsequent days from receiving the
parties' allegations, the Chamber will send the respective copies
to the arbitrators and the parties, and they shall have ten (10)
days to present their respective statements.
8.4 - Within five (5) days of receiving the statements the Arbitral
Tribunal will evaluate the state of the process, determining, if
such is the case, the production of expert proof. The parties may
appoint technical assistants within five (5) days of notification
of the deferment of said proof.
8.5 - The parties may present all of the proof that they judge
useful for the instruction of the proceedings and for the
clarification of the arbitrators. The parties should further
present all other proof necessary that any member of the Arbitral
Tribunal judges necessary for the understanding and solution of the
controversy. It will be the responsibility of the Arbitral Tribunal
to defer the useful, necessary and pertinent proof.
8.6 - All of the proof will be produced before the Arbitral
Tribunal, which will make the other party aware of it so that they
may opine on it.
8.7 - The Chamber will make, at the request of one or more of the
parties, stenographic copies of the depositions, as well as
contract the service of interpreters or translators. The party or
parties that have requested said measures should pay the amount of
its estimated cost in advance to the Chamber, as set forth in
article 16.
8.7 - The Chamber will make, at the request of one or more of the
parties, stenographic copies of the depositions, as well as
contract the service of interpreters or translators. The party or
parties that have requested said measures should pay the amount of
its estimated cost in advance to the Chamber, as set forth in
article 16.
8.9 - The proceedings will move forward without the knowledge of
any of the parties, provided that they, duly notified, do not
appear or do not obtain a continuance for the hearing. The award
under no circumstances may be based on the absence of one of the
parties.
9. Diligences Outside of the Arbitration
Headquarters
9.1 - Provided that the Arbitral Tribunal considers it necessary,
for its convenience, to perform diligences outside of the
arbitration headquarters, the Chairman of the Arbitral Tribunal
will communicate the date, time and location for the execution of
the diligence to the parties, should they wish to accompany
it.
9.2 - Upon executing the diligence, the Chairman of the Arbitral
Tribunal will draw up a report, within three (3) days time,
containing an account of the occurrences and conclusions of the
Arbitral Tribunal, communicating this to the parties, that may
opine on it.
10. The Instruction Hearing
10.1 - There being need to produce oral proof, the Chairman of the
Arbitral Tribunal will summon the parties and the other arbitrators
to an instruction hearing on the date, at the time and in the
location previously designated.
10.2 - The parties will be summoned at least ten (10) days in
advance.
10.3 - Expert proof having been produced, the instruction hearing
should be summoned no more than thirty (30) days following the
delivery of the expert examination report. Should there be no
production of expert proof, the instruction hearing, if necessary
will be held within thirty (30) days time from the deadline dealt
with in article 8.3.
10.4 - Upon termination of the instruction, the Arbitral Tribunal
will defer a deadline of up to ten (10) days for the parties to
offer their written statements.
11. Continuance or Suspension of the Hearing
11.1 - The Arbitral Tribunal, if the circumstance justify it, may
order a suspension or continuance of the hearing. The suspension or
continuance will be obligatory if requested by all parties
involved, a date for its execution or continuation should hence be
designated.
12. Provisional or Coercitive Remedies
12.1 - The Arbitral Tribunal will adopt the necessary and possible
measures for the correct development of the arbitration
proceedings, and when suitable, it will request that the competent
judicial authority adopts provisional or coercitive remedies.
12.2 - In the event that a witness refuses to appear in an
instructional hearing, or if upon appearing refuses, with no legal
motive, to be deposed, the Arbitral Tribunal may request that the
competent Court adopt the appropriate legal measures to take the
deposition of the absent witness.
13. The Award
13.1 - The Arbitral Tribunal will proffer the award within twenty
(20) days.
13.2 - The deadline set forth in article 13.1 will be
counted:
a) if there is no need for a hearing, once the deadline dealt with
in article 8.3 has lapsed;
b) if there is a need for an instructional hearing, upon the
termination of the deadline for the delivery of written
statements.
13.3 - The deadline set forth in article 13.1. may be extended by
up to sixty (60) days, at the discretion of the Chairman of the
Arbitration Court.
13.4 - The award will be proffered by majority vote, each
arbitrator being responsible, including the Chairman of the
Arbitral Tribunal, for one vote. If there is no majority agreement,
the vote of the Chairman of the Arbitral Tribunal will prevail. The
award will be summarized in writing by the Chairman of the Arbitral
Tribunal and signed by all of the arbitrators. It will be the
responsibility of the Chairman of the Arbitral Tribunal to certify
the absence or divergence with regards to the signing of the award
by the arbitrators.
The arbitrator that offers a contrary vote must explain it, which
will be included in the award.
13.6 - The award will necessarily contain:
a) a report, with the name of the parties and a summary of the
litigation;
b) the basis for the decision, which will be founded in questions
of fact and law, with express clarification, when such is the case,
for having been offered by ex aequo et bono
c) the provision, with all of the specifications and deadline for
the fulfillment of the decision, if such is the case; and
d) the date, month, year and place that it was handed down.
13.7 - The award will also include the establishment of fees and
procedural expenses, as well as the respective division, also
observing what has been agreed upon by the parties in the
convention of arbitration or term of arbitration.
13.8 - Once the award has been proffered, that is the end of
arbitration, the Chairman of the Arbitral Tribunal should, through
the Chamber, send a copy of the decision to the parties, through
the mail or another means of communication, through proof of
receipt, or further directly delivering it to the parties, through
receipt.
13.9 - Within five (5) days from receiving the notification or
being personally aware of the award, the interested party, through
communication to the other party, may request that the Arbitral
Tribunal clarify some obscure point, omission or contradiction in
the award.
13.10 - The Arbitral Tribunal will decide within ten (10) days,
editing the award, notifying the parties in accordance with what is
set forth in article 13.8.
14 - Amicable Agreement
14.1 - If during the arbitration proceedings, the parties agree on
a settlement of the dispute, the Arbitral Tribunal may, by request
of the parties, declare such fact by means an award, observing,
when suitable, the provision in article 13.6 above.
15 - Fulfillment of the Award
15.1 - The award proffered is final, the parties being bound to
fulfill it in the consigned manner and terms.
16 - Arbitration Costs
16.1 - The Chamber will prepare a table for the costs and fees for
the arbitrators and other expenses, establishing the manner and
method of the deposits (ATTACHMENT I).
16.2 - The table cited in the previous item may be periodically
revised by the Chamber.
17 - Miscellaneous
17.1 - In international arbitration, it will be the responsibility
of the parties to choose the law that is applicable to the merit of
the controversy and the language of arbitration. There being not
establishment or consensus on that point, it will be the
responsibility of the arbitral tribunal to indicate the rules that
they judge appropriate, as well as the language, considering the
contractual stipulations, uses, customs and international rules of
trade. The arbitrators may only decide upon ex aequo et bono or act
as the amiable compositeur if thus authorized by the parties.
17.2 - It will be the responsibility of the arbitrators to
interpret and apply these Rules to the specific cases, including
existing gaps, in all things concerning their powers and
obligations.
17.3 - All controversies between the arbitrators concerning the
interpretation or application of these Rules will be settled by the
Chairman of the Arbitral Tribunal, whose decision will be
final.
17.4 - The arbitration proceedings are strictly confidential,
prohibiting the members of the Chamber, the arbitrators and the
parties themselves from releasing any information related to it,
that they have had access to as a result of their role or
participation in said proceedings.
17.5 - The Chamber may publish a Summary with excerpts of the
award, always protecting the identity of the parties.
17.6 - When interest is expressed by the parties and, through
express authorization, the Chamber may release the award.
17.7 - The Chamber shall supply through written request, certified
copies of the documents related to arbitration to any of the
parties, necessary for the judicial action linked to the
arbitration and/or the respective subject.
17.8 - These Rules approved as a statute on August 20, 1998, become
effective on this date, substituting the previous Rules, approved
on May 22, 1995.
17.9 - Save any provision to the contrary by the parties, these
Rules applies to the proceedings underway at the Chamber, as well
as those that enter starting on this date.