REGULATION OF THE CENTER FOR MEDIATION AND ARBITRATION OF
THE PORTUGUESE CHAMBER OF COMMERCE IN BRAZIL – SÃO PAULO
The Arbitration Center
1.1. The Center for Mediation and Arbitration of the Portuguese Chamber of Commerce in Brazil – São Paulo (“Arbitration Center”) will manage the submitted arbitrations and mediations according to the terms in this regulation (the “Regulation”).
1.2. Once the parties have agreed to resort to arbitration managed by the Arbitration Center, they will be automatically subjected to the Regulation in effect on the date the request for initiation of arbitration proceedings is filed, unless otherwise agreed.
1.3. In case there are no previous arbitration clauses and there is interest by both parties to solve the litigation by arbitration, an arbitration commitment will be signed according to the provisions in article 10, Law no. 9.307 of September 23, 1996.
1.4. The Arbitration Center will be managed by a board comprised of three (03) members appointed by the Council of the Portuguese Chamber of Commerce in Brazil - São Paulo, each with a two (02) year term and possibility for reelection (“Board of Directors”). The Board of Directors is composed by the Chairman, Vice-Chairman and General-Secretary.
1.5. The Board of Director will meet whenever a deliberation is necessary to settle any issues related to the administration of arbitrations.
1.6. The Chairman is responsible for:
(a) representing the Arbitration Center;
(b) calling for and presiding over Board meetings;
(c) applying and enforcing the norms in this Regulation;
(d) issuing complimentary administrative and procedural norms to settle doubts, guide the application of this Regulation and define the rules for casus omissus; and,
(e) execute any other task attributed unto him by the other clauses in this Regulation.
1.7. The Vice-Chairman is responsible for:
(a) replacing the Chairman whenever he is absent or impeded;
(b) assisting the Chairman in the performance of his duties; and,
(c) performing tasks designated by the Chairman.
1.8. The General-Secretary is responsible for:
(a) keeping the Arbitration Center registries under his guardianship and responsibility; and,
(b) coordinating working hours and employees at the Arbitration Center.
1.9, The following are the responsibilities of the Arbitration Center Secretary:
(a) receive and issue notifications and communications in the instances under the Regulations;
(b) perform all the acts that are necessary for the establishment of the Arbitration Court and the course of the procedures, assuring the proper conduction of the steps up to their closure;
(c) assure the confidentiality of the documents and of the information in the procedure.
2.1 All the requests, the petitions, the notifications, and any other documents related to the procedure, must be physically and mandatorily filed at the Secretary from 9:00 AM to 17:00 PM.
2.2. The Counsels, Parties, and Abitrators must maintain their enrollment data updated at the Secretary throughout the course of the arbitration procedure.
2.3. The Arbitrators and other professionals eventually acting in the procedure must present their papers, formally, bearing: (i) number of the procedure; (ii) hours spent; (iii) gross and net receivable amounts; (iv) personal and banking data.
2.4. The records of the procedure filed at the Secretary (official counterpart) will not leave the Secretary’s facilities. The copies of the procedure might be requested at and retrieved from the Secretary upon the payment of the corresponding costs.
The Arbitration Body
3.1. The Arbitration Body will be composed of professionals to be nominated by the Board of Directors for unspecified duration.
3.2. The members will be chosen among professionals with irreproachable conduct and acknowledged technical competence.
3.3. At any moment, the board may replace any of the members of the Arbitration Body at its discretion or upon request by the member.
The Location of the Center
4.1. The Arbitration Center will be located at the headquarters of the Portuguese Chamber of Commerce in Brazil – São Paulo.
4.2. Arbitrations may be conducted in any other place or city of choice by both parties, or as determined by the Arbitration Court.
The Opening of Arbitration
5.1. The party wishing to resort to arbitration in accordance with this regulation must present its petition (“Arbitration Petition”) to the General Secretary of the Arbitration Center. The Arbitration Petition must be presented in a sufficient number of copies so that each party receives a copy, plus additional copies for each Arbitration Body member and one for the Arbitration Center.
5.2. The Arbitration Petition must contain:
(i) name, qualification, address of the parties, including the e-mail to receive communications related to the arbitration;
(ii) summarized exposition of the nature and circumstances of the litigation originating the Arbitration Petition;
(iii) indication of the purpose, the petitions and if possible, the amount involved in the arbitration;
(iv) any relevant documentation and the arbitration convention;
(v) indication or, according to the case, suggestion for the place of arbitration, applicable laws and languages; and,
(vi) proposal regarding the number of arbitrators, in case the parties did not foresee such in the arbitration convention, or indication of an arbitrator whenever both parties have agreed to an Arbitration Court composed of three arbitrators.
(vii) Power of attorney for the counselors of the Parties in the procedure.
5.3. The Arbitration Center will send a copy of the Arbitration Petition to the required parties so that within 15 days, they can manifest themselves about the proposal presented in the Arbitration Petition regarding the number of arbitrators, as per agreement under the cmpromising clause, or indicate an arbitrator whenever the Arbitration Court is composed by three arbitrators, and present a preliminary response and eventual objections to the opening of the arbitration (“Response to the Petition”).
5.4. Along with the manifestation related to the aforementioned clause 5.3, the requested parties may also present a counter-suit indicating the subject matter, the petitions and, if possible, the amount of its intentions.
5.5. The decisions regarding objections to opening the arbitration will be taken up by the Arbitration Court, which will be qualified to definitively settle such objections.
The Arbitration Court
6.1. The arbitration subject to the present Regulation must be necessarily conducted by a single arbitrator or by three arbitrators (in both situations denominated “Arbitration Court”).
6.2. Whenever both parties have agreed that the arbitration will be performed by a single ator, he/she will be nominated by mutual agreement within 20 days from receiving the Arbitration Petition by the requested party. In case both parties do not reach an agreement in relation to the nomination of a single arbitrator, he/she will be designated by the President of the Arbitration Center.
6.3. Whenever the parties agree that three arbiters will conduct the Arbitration, both parties must indicate one arbitrator in the Arbitration Petition and in the Petition Response. In case one of the parties does not designate an arbitrator as previously mentioned, the Chairman of the Arbitration Center will indicate one.
6.3.1. Within twenty (20) days from receiving notification by the Arbitration Center, the arbitrators indicated in accordance with clause 6.3 will choose the third arbitrator among members of the Arbitration Body, who will be the Chairman of the Arbitration Court. In case the arbitrators are not able to reach a consensus regarding the nomination of the Chairman of the Arbitration Court within the aforementioned deadline, he/she will be nominated by the Arbitration Center.
6.4. Whenever both parties do not agree in relation to the number of arbitrators, the Chairman of the Arbitration Center will decide whether the arbitration will be conducted by one or three arbitrators and he/she will nominate the arbitrator(s) from among the members of the Arbitration Body.
6.5. Arbitrator from the Arbitration Body and others indicated by the parties may be nominated. The sole arbitrator and the third arbitrator, who will be the Chairman of the Arbitration Court, must necessarily be jurists and members of the Arbitration Body.
6.6. The nominated arbitrators who are not members of the Arbitration Body must be previously confirmed by the Board.
6.7. The nominated arbitrators must manifest their acceptance, sign the Term of Independence and reveal the necessary facts regarding the evaluation of their independence and distance from the parties.
6.8. Both parties may challenge the indicated arbitrators within five days after receiving the Term of Independence signed by the challenged arbitrator, or, in relation to facts posterior to signing of the Term of Independence, within five days from awareness of the fact causing the challenge. The challenged arbitrator(s) and other parties may present their comments about the challenge within five days from receiving it. The challenges will be decided by the Board.
Codefendants and Multiple Defendants
7.1 Whenever there is more than one party as Petitioner or as Defendant, and whenever the arbitration is performed by three arbitrators, according to the deadline set by clause 5.3, the codefendants must indicate an arbitrator.
7.2. In the event there is no joint designation, the Chairman of the Arbitration Center will indicate the arbitrator for such codefendants.
7.3. If the different parties of arbitration present opposite intentions among themselves, thus characterizing arbitration with multiple defendants, the Chairman of the Arbitration Center will indicate all the members from the Arbitration Court, at his discretion, to indicate which arbitrator will be Chairman of the Arbitration Court.
Notifications and Deadlines
8.1. The notifications or communications will preferably be made by e-mail and the parties must acknowledge receipt within 24 hours, and the Arbitration Center will keep the original document. In case there is no confirmation of receipt by the receiver, the Arbitration Center will contact the party in any other possible way that enables verification of receipt.
8.2. The correspondences of the Parties and of the Arbitration Court, the notifications and the communications from the Secretary might be issued via e-mail, as long as, within a maximum of two (02) days, they are confirmed via their respective original documents, in accordance with the foregoing agreed distribution criterion, and upon the confirmation of receipt from all the addresses within twenty-four (24) hours.
8.3. The Arbitration Court will, always, establish the deadlines for the fulfillment of any measure during the course of the procedure, via notification within the Arbitration Court’s competence, or under the Arbitration instrument or, still, via their procedural agenda.
8.4. Electronic correspondences from the parties will meet the deadlines established by the Arbitration Court, as long as the original documents, as per the article 8.1, are forwarded.
8.5. The deadlines specified or determined as per the present regulation will be counted as calendar days and they will exclude the receiving day and will include the final deadline. Whenever the day following the receipt is not a business day at the place the notification or communication is received, the deadline will count as of the following business day. Whenever the final deadline is not a business day at the place the notification or communication is received, the deadline will be the first following business day.
8.6. The deadlines stipulated in this Regulation may be extended if absolutely necessary, at the criteria of the Chairman of the Arbitration Center and before Constitution of the Arbitration Court, or if the Arbitration Court has been constituted, by its Chairman or its single arbitrator.
9.1. After choosing the arbitrators, the Arbitration Court will draw up the Arbitration Term with the assistance of both parties, and it must contain:
(i) the names and qualifications of the parties and the arbitrators, in addition to the electronic address to receive communication related to the Arbitration:
(ii) the place where the arbitration sentence will be passed;
(iii) authorization or denial for the arbitrators to judge per equity;
(iv) the language in which the arbitration will be conducted;
(v) the purpose of the litigation, the requests drawn up by both parties, the amount and if such is the case, the liability for payment of procedural costs, experts, arbitrators and attorney fees; and
(vi) the rules applicable to the merits and proceedings.
9.2. Both parties will sign the Arbitration Term with the arbitrators. Non-signature by any of the parties will not stop normal arbitration proceedings.
9.3. Whenever the Arbitration Term is signed, by means of procedural order and after consulting both parties, the Arbitration Court must define the timetable for deadlines and procedures for arbitration proceedings so both parties may present their allegations and produce evidence.
9.4. All evidence will be produced before the arbitration court, which will present the evidence to the other party for manifestation. The Arbitration Court will only accept evidence that is useful, necessary and relevant to solution of the litigation.
9.5. Arbitration proceedings are rigorously classified and only people with legitimate interests in the matter have access to them. The members of the Arbitration Center, the arbitrators and parties do not have authorization to display any information to which they have had previous access as a result of official order or participation in the arbitration proceedings, except by agreement between both parties, legal duty or judicial order.
9.6. In case the parties do not attend any acts described in this Regulation, such absence will not stop the opening or continuance of the arbitration. The arbitration sentence cannot be based on the assumption of veracity of facts by default judgment of any of the parties.
9.7. If the Arbitration Court deems it necessary to execute proceedings outside the arbitration forum, the Chairman of the Arbitration Court will inform both parties the date, time and place of the proceedings so they may attend if they wish to do so.
9.8. Once proceedings are concluded, the Arbitration Court will define the deadline for presenting final allegations by both parties.
9.9. After its constitution, the arbitration court will adopt all necessary and convenient measures for the correct development of procedures and if it deems it necessary, it will send both parties to the qualified legal authority for the adoption of preliminary injunctions and coercive measures. An appeal to a legal authority prior to Constitution of the Arbitration Court will not characterize a violation of the arbitration convention.
9.10. In the event the witness refuses to attend the trial, or if attending refuses to testify for legal reasons, at its discretion the arbitration court may request the qualified court to adopt proper legal measures for the witnesses testimony.
The Arbitration Judgment
10.1. The Arbitration Court will issue the final arbitration judgment within sixty (60) days, from the end of the deadline for presenting final allegations. This deadline may be extended for another thirty (30) days at the discretion of the Chairman of the Arbitration Court.
10.2. The final arbitration judgment, as well as other decisions, will be decided by majority of votes and each arbitrator will have the right to vote. In the event of a tie, the casting vote will be given by the Chairman of the Arbitration Court.
10.3. The final arbitration judgment must present:
(a) report with the name of the parties and a summary of the litigation;
(b) the basis for the decision, which will present the factual and legal considerations, with express statement in case of equity decision;
(c) the order of the court with all its specifications and deadlines for complying with the decision, if that is the case; and
(d) the day, month, year and place it was pronounced.
10.4. The final arbitration decision will also present the determination of charges and procedural expenses with the respective division in accordance with the agreement signed by both parties at the arbitration convention or in the Arbitration Term.
10.5. Once the final arbitration decision is issued, the Chairman of the Arbitration Court must send a copy of the decision to both parties. All petitions for clarification or correction will be accepted within five days from receiving the final arbitration decision, in case of error, misinterpretation, contradictions or omission of text present in the final arbitration decision. The other party will have five days from receipt of the request for clarification or correction to manifest about it. The Arbitration Court will decide on any eventual request for clarification or correction within 10 days from receiving the other party’s manifestation.
10.6. During arbitration proceeding, if both parties reach an agreement and end litigation, the arbitration court may approve the agreement by a final arbitration decision observing what is stipulated in this Section.
10.7. The Arbitration Court might grant partial decisions.
Compliance with the Arbitration Sentence
11.1. Both parties must comply with the arbitration sentence in full, according to its contents and deadlines.
11.2. Upon written request by any of the parties or arbitrators, the Arbitration Center may provide certified copies of documentation related to arbitration proceedings or necessary for any lawsuits related to the arbitration based on the counterpart in the official files.
12.1. The table of administrative and arbitrator fees from the Arbitration Center (“Table”) may be periodically re-evaluated by the Arbitration Center. The table to be used in each specific case will be the one valid at the time arbitration is opened.
12.2. If the litigation value is unknown, the minimum administrative fees stipulated in the Table will be applied. The administrative fees must be paid by both parties within 30 days of signing the Arbitration Term, observing the possibility of review by the Board as per the Cost Regulations of the Arbitration Center.
12.3. At the time of opening arbitration, the petitioning parties will collect a fee (“Institutional Fee”) for the Arbitration Center according to the amount defined in the Table. The Institutional Fee is not refundable and it will be credited as a downpayment of arbitration fees by the petitioner.
12.4. Final liability for arbitration fees and their payment and any eventual fees borne by the loser will abide by the definitions at the arbitration convention or in the Arbitration Term. If there is no agreement, the Arbitration Court will decide on the allocation of costs in the Final Arbitration Judgment.
12.5. Each party will make a deposit to the Arbitration Center at the opening of arbitration and, whenever requested by the Arbitration Center, of a downpayment referring to arbitration fees, an amount that will be subtracted from the total fee owed by the respective party at the end. The Arbitration Center may also require additional downpayments during arbitration proceedings.
12.6. Besides the payments described in article 12.5, the Arbitration Center may also determine that both parties deposit any necessary amounts for covering arbitration expenses and eventual proceedings’ expenses. The Arbitration Center will account for the use of these amounts to both parties and will refund them accordingly without any kind of monetary correction or interest.
12.7. All expenses resulting from the arbitration will be paid by the petitioning party or by both parties equally if resulting from proceedings requested by the Arbitration Court.
12.8. In case of a countersuit, the Board, at its own discretion, may define provisions of distinct administrative and arbitrator fees, with each party responsible for the amount corresponding to its respective demands.
12.9. If any of the parties does not pay its administrative and arbitrator fees within the deadline set by the Arbitration Center, the arbitration proceeding or the petition by the party not paying its respective provisions may be revoked or suspended by decision of the Board, according to clause 12.8. The Arbitration Center may also suspend handing down the Final Arbitration Judgment until the fees are paid in full to the Arbitration Center. The other parties may pay the late fees in order to enable continuation of the arbitration or petition and they will be ensured the right to reimbursement by the non-paying party.
Nomination of Arbitrators in Ad Hoc Arbitrations
13.1. The Arbitration Center also has the powers to indicate arbitrators in ad hoc arbitrations by means of its Chairman, upon request by the interested parties.
13.2. The Arbitration Center will charge the amounts defined by the Institutional Fee for the services of indicating arbitrators, per indicated arbitrator and according to the table.
14.1. The party wishing to propose mediation proceedings must forward a Mediation Petition to the General Secretary with a summary of the litigation and the name, qualification, and address of the other party involved in the mediation.
14.2. The Arbitration Center will send an Invitation to Mediation to the party indicated in the above clause, within five days, so the invitation can be answered within two days.
14.3. If the Invitation to Mediation is accepted, the General Secretary will set a telephone conference to define the mediator who will be appointed to conduct the mediation.
14.4. The mediator appointed to conduct mediation will define the timetable and how the mediation is conducted.
14.5. Any of the parties may stop mediation at any moment upon communication to the other party, the Mediator and the Arbitration Center.
14.6. If mediation is successful, a Transaction Term will be drafted and signed by the Mediator, by both parties and according to the case, by two witnesses.
14.7. Mediation proceedings are strictly classified. No fact, allegation or circumstance presented in the mediation proceedings may be utilized by any party in future arbitration or law proceedings. Except as otherwise stipulated by both parties, the person acting as mediator may not perform as an arbitrator in any arbitration involving the issue that is submitted to mediation or related to it.
15.1 This Regulation, duly approved by the Extraordinary General Assembly of the Portuguese Chamber of Commerce in Brazil – São Paulo on April 28, 2009 will become valid on the same date and remain in effect for unspecified duration.
16.1. The Arbitration Center, as well as its members and employees shall not be held responsible before any person for any facts, acts or omissions related to arbitration.
Responsibility of the Arbitration Center