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Arbitration rules (1998)

  • 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.