Arbitration Rules

Arbitration Rules

I INTRODUCTION  

1.1 The purpose of CAMARB – BUSINESS ARBITRATION CHAMBER – BRAZIL,

hereafter “CAMARB”, is to manage arbitral proceedings and other alternative dispute resolution methods. Its institutional work does not involve any jurisdictional decisions, which are solely under the power of the arbitrator(s) appointed under these Rules.

1.2 The Arbitration Rules of CAMARB, hereafter “Rules”, shall apply every time the arbitration agreement stipulates the adoption of the arbitration rules of CAMARB or of the Arbitration Chamber of Minas Gerais, which is the former name of CAMARB.

1.3 Except as otherwise provided, the applicable Rules are those in force on the date of the Request for Arbitration.

1.4 For the purposes of these Rules:

  1. the term Arbitral Tribunal  shall be applied to indicate both sole arbitrator or multiple arbitrators;
  2. the terms claimant and respondent both apply to one or more claimants or respondents.


II NOTICES, WRITTEN COMMUNICATIONS AND TIME PERIODS

2.1 All pleadings and documents submitted by the parties shall be delivered to the Secretary General of CAMARB in a number of copies sufficient to be forwarded to the arbitrators and to the other parties, being the original documents kept in the records of the arbitral proceeding.

2.2 The Secretary General of CAMARB shall send to the parties, by serving notice, the communications issued by it, the copies of the parties’ statements and the decisions rendered by the Arbitral Tribunal.

2.3 The deadlines estipulated by the Rules and by the Arbitral Tribunal shall begin to run on the business day following the date the Secretary General’s notice is delivered. The deadlines are continuous and shall not be suspended on the days on which CAMARB does not open. If CAMARB does not open on the day the time period ends, the deadline shall be extended until the first subsequent business day.

2.4 All notices shall be deemed to have been made if they are delivered at the address indicated in the Terms of Arbitration or at the last address provided by the respective party. If the Terms of Arbitration is not signed, the party shall be deemed notified by delivery of the communication of the Secretary General of CAMARB at the address where the first notice was delivered.

2.5 The parties, with the consent of the Arbitral Tribunal, may modify the terms fixed by these Rules.

III REQUEST FOR ARBITRATION

3.1 The party intending to resolve a dispute related to arbitrable rights, under the management of CAMARB, shall inform its intention to the Secretary General, informing:

  1. name, address and complete description of the parties involved and of their respective attorneys, if any;
  2. complete copy of the document containing the arbitration agreement;
  3. brief summary of the object of the dispute;
  4. summary of the relief sought;
  5. estimated amount in dispute.

3.2 Upon requesting the commencement of the arbitral proceeding, the claimant shall deposit the non-refundable amount of the Registration Fee, which covers the initial expenses until the execution of the Terms of Arbitration.

3.3 If the requirements from Articles 2.1, 3.1, and 3.2 are not met, the Secretary General shall establish a deadline for their fulfillment. In the event the requirements are not met within the period established, the arbitration shall be dismissed, with no prejudice to the submition of a new request.

3.4 The Secretary General of CAMARB shall send to the respondent, at the address informed by the claimant, a copy of the Request for Arbitration and its attachments, as well as a copy of these Rules and of CAMARB’s List of Arbitrators, notifying the respondent to, within 15 (fifteen) days from its receipt, answer the Request for Arbitration, including its intent to present any counterclaim.

3.5 If the respondent is not found, the claimant shall provide a new address to the Secretary General of CAMARB or proceed to the judicial notice of the respondent in respect of the arbitral proceeding.

3.6 In case the respondent intends to present a counterclaim, its statement shall also include:

  1. brief summary of the facts which gave rise to the counterclaim;
  2. statement of the relief sought;
  3. estimated amount of the counterclaim.

3.7 When a party submits a Request for Arbitration regarding a legal relationship in respect of which arbitration proceedings between the same parties are already pending under these Rules, or where the object or the cause of action of the proceedings is the same, the Arbitral Tribunal of the pending arbitration shall decide on the possible connection between the proceedings.

3.8 Before the formation of the Arbitral Tribunal, the Board of Directors shall decide on the issues related to the existence, validity, effectiveness and scope of the arbitration agreement, as well as on the connection of proceedings, and the Arbitral Tribunal, after its formation, shall decide on its jurisdiction, confirming or modifying the decision of the Executive Board.

3.9 If, after the conclusion of a valid arbitration agreement, one of the parties refuses to participate or abstains from taking part in the proceeding, the arbitration shall proceed and the Arbitral Tribunal shall render the award, with the absent party informed, by mail, of all acts of the proceeding and allowed to intervene at any time. If the party changes its address without communicating this fact to the Secretary General of CAMARB, this will suspend the sending of communication until the party informs its new address.

IV ARBITRATORS

4.1 Persons included or not in the List of Arbitrators of CAMARB may be appointed as arbitrators, provided that they are qualified persons whom the parties trust. The chairperson of the Arbitral Tribunal shall preferably be chosen out of the names included in the List of Arbitrators.

4.2 The person(s) appointed to act as arbitrator(s) shall sign a statement declaring, under the penalty of the law, that they are independent and impartial. In such statement, he/she shall disclose any circumstance which may cause a reasonable doubt regarding their impartiality or independence in relation to the parties or to the case submitted to their consideration, as well as declare, in writing, that they have the technical expertise and the availability necessary to conduct the arbitration within the stipulated time.

4.3 Any of the parties may challenge the arbitrator who:  

  1. a) is a party to the case;
  2. b) has acted in the case as an attorney, consultant, or counsel to any of the parties, mediator, witness, or expert;
  3. c) is married to or relative within the third degree of any of the parties or of their attorney;
  4. d) participates in the management of a legal entity which is a party to the case or has an interest in its capital;
  5. e) is a close friend or enemy of any of the parties or their attorney;
  6. f) is, for any other reason, interested, directly or indirectly, in the decision of the dispute in favor of any of the parties;
  7. g) has no independence or impartiality to conduct the arbitration or decide on the case.

4.4 Should any of the events referred to in the previous item occur, the arbitrator shall immediately inform this fact to the Secretary General of CAMARB, to the parties and to the other arbitrators. The arbitrator may, for one of the reasons referred to in the previous item, refuse the appointment or resign, even when appointed by mutual consent of the parties.

V APPOINTMENT OF ARBITRATORS

5.1 The Secretary General of CAMARB shall request the parties to appoint, within 10 (ten) days, the arbitrators to act in the arbitral proceeding.

5.2 When the parties choose to appoint a sole arbitrator, he or she shall be appointed by mutual consensus. In case there is no mutual consensus within the time period established in item 5.1, the provision of item 5.10 shall apply.

5.3 Except if otherwise established by agreement, in case the parties choose to establish an Arbitral Tribunal with 3 (three) arbitrators, each one of the parties shall appoint one arbitrator within the time established in item 5.1. Within 10 (ten) days after the statement of availability, impartiality and independence of the arbitrators appointed, they shall jointly choose the third arbitrator, who shall have the role of chairperson of the Arbitral Tribunal. If there is no consensus between the arbitrators appointed by the parties, the chairperson shall be appointed by CAMARB’s Board of Directeors.

5.4 Where the parties have not defined in the arbitration agreement the number of arbitrators to settle the dispute, or where there is no consensus in this regard, CAMARB Board of Directors shall define whether to appoint a sole arbitrator or three arbitrators, taking into consideration the nature of the litigation, and the appointment shall comply with these Rules.

5.5 Once the arbitrator(s) is(are) appointed, the Secretary General of CAMARB shall request that she/he/they make a statement in accordance with item 4.2 within 10 (ten) days.

5.6 The parties shall be notified of the statement of availability and the statement of impartiality and independence by the Secretary General of CAMARB. Upon receipt of this notice, the parties shall have the opportunity to challenge the appointment of the arbitrators by presenting a reasoned petition within 5 (five) days.

5.7 In the event the arbitrators are challenged, they shall be notified by the Secretary General of CAMARB to answer in writing within 5 (five) days, and the parties shall have access to such answer for the same period of time.

5.8 CAMARB’s Board of Directors shall decide on the challenge of the arbitrator, suspending the proceeding until the decision is issued.

5.9 In the event one of the appointed arbitrators dies, is declared dependent or partial, or is barred from exercising the function, the substitute shall be appointed in the manner and within the time applicable to the appointment of the arbitrator to be replaced.

5.10 If any of the parties – after having executed the arbitration agreement electing the Arbitration Rules of CAMARB or after agreeing with the commencement of the arbitration – fails to appoint an arbitrator within the periods prescribed in the Rules, the CAMARB’s Board of Directors shall appoint the arbitrator who was not appointed by one of the parties or the sole arbitrator for resolving the dispute from the names included in the List of Arbitrators.

5.11 When more than one party is claimant or respondent and the dispute is submitted to three arbitrators, the claimant or co-claimants shall appoint one arbitrator, while the respondent or co-respondents shall appoint the other arbitrator.

5.12 In the absence of consensus for the appointment of arbitrator by the co-claimants or by the co-respondents, within the term established in these Rules, CAMARB’s Board of Directos shall appoint the three members of the Arbitral Tribunal, appointing who shall act as chairperson.

VI TERMS OF ARBITRATION

6.1 After the appointment of the arbitrators, the Secretary General of CAMARB shall prepare the draft of the Terms of Arbitration, which shall contain:

  1. a) name, profession, marital status, and domicile of the parties and their attorneys, if any;
  2. b) name, profession, and domicile of the arbitrators appointed by the parties;
  1. the issue which shall be the object of the arbitration and the statement of the relief sought;
  2. d) place where the arbitration award shall be issued;
  3. e) the authorization for the arbitrator to decide based on equity, if agreed by the parties;
  4. f) the time limit for the issuance of the arbitration award;
  5. g) the language in which the arbitral proceeding shall be conducted;
  6. h) the determination of the form of payment of the Arbitrators fees and of the Administrative fee, as well as the statement of liability for the respective payment and for the arbitration expenses;
  7. i) the signature of 2 (two) witnesses.

6.2 The parties and the Arbitral Tribunal shall sign the Terms of Arbitration in a hearing specifically scheduled for such purpose, when the payment of the Administrative fee and the deposit of the Arbitral Tribunal’s fee shall be made, in the terms of these Rules.

6.3 The arbitration shall be considered initiated and the arbitration jurisdiction shall begin with the acceptance of the arbitrators, by execution of the Terms of Arbitration.

6.4 The effects of the commencement of arbitration shall be retroactive to the date of the filing at CAMARB of the Request for Arbitration.

VII ATTORNEYS

7.1 The parties may be represented by attorneys with powers to act on their behalf in all acts related to the arbitral proceeding.

7.2 All communications, notices or summons related to the acts of the proceeding shall be delivered to the party, or, in case there is an appointed attorney, exclusively to him/her, by mail, facsimile, telegram, electronic mail, or any other form of written communication delivered at the address provided by the party to the Secretary General.

VIII PROCEEDING

8.1 At the hearing for the execution of the Terms of Arbitration, the Arbitral Tribunal shall initially make an attempt to settle the dispute by the parties.

8.2 In case a settlement is not reached, each of the claimant and the respondent, should the latter have stated the intention to present a counterclaim, shall file its initial allegations and declare the evidence it intends to produce within 15 (fifteen) days from the date of signature of the Terms of Arbitration.

8.3 The initial allegations shall include the claims and its specifications. After the initial allegations are filed, none of the parties shall be allowed to present new claims, amend, or modify the existing claims, or waive any of the claims without the consent of the other party(ies) and of the Arbitral Tribunal.

8.4 Following that, the claimant and the respondent, in the event of a counterclaim, shall have 15 (fifteen) days to present the answer to the initial allegations of the other party, and to indicate the evidence it intends to produce.

8.5 After expiration of the term for presenting the answer, the Arbitral Tribunal shall decide on the taking of evidence. If it is concluded that no new evidence needs to be taken, the Arbitral Tribunal shall declare the closing of the production of evidence, and grant each of the parties 15 (fifteen) days to submit the final allegations.

8.6 Should the Arbitral Tribunal deem necessary, for the sake of its own convincing, to inspect evidence outside the place of arbitration, the chairperson of the Aribtral Tribunal shall set a date, time and place for carrying out such measures and inform the parties so that they can accompany the Arbitral Tribunal, if they so desire.

8.7 The Arbitral Tribunal shall decide on the need for expert evidence for the arbitration. In this event, the Arbitral Tribunal shall decide on the questions to be asked by the parties, the appointment of the expert, the payment of the expert fees, the admission of technical assistants, the presentation of the expert’s report and its clarifications.

8.8 The provisions of items 4.2, 4.3 and 4.4 of these Rules shall apply to the expert, and the Arbitral Tribunal shall be entitled to decide on possible challenges to the expert.

8.9 In the event the Arbitral Tribunal understands that an evidentiary hearing is necessary, it shall define the date, time, and venue.

8.10 The hearing shall be opened by the chairperson of the Arbitral Tribunal, in the presence of the other arbitrators and of the secretary of the proceeding.

8.11 Once the hearing is opened, oral evidence shall be taken, starting with the explanations of the expert, if it is the case, followed by the personal testimony of the parties, and then by the examination of the listed witnesses.

8.12 In the event any witness refuses to attend the hearing or refuses to testify with no legal reason, the chairperson of the Arbitral Tribunal, at the request of any of the parties or on his/her own initiative, may request the judicial authority to take the proper measures for the examination of the absent witness.

8.13 The case manager shall provide, at the request of any of the parties, copy of the testimonies taken in the hearing, as well as of services of translation. The party requesting such services shall bear the respective costs, which shall be paid in advance to CAMARB.

8.14 The hearings shall take place even if any of the parties, duly notified, does not attend them.

8.15 The postponement of a hearing shall only be granted for relevant reasons, at the discretion of the chairperson of the Arbitral Tribunal, who shall immediately schedule a new date for it.

8.16 After the taking of evidence, each party shall have 15 (fifteen) days to file their final allegations, if another time period is not set by the Arbitral Tribunal.

8.17 A request of nullity of an act carried out in the course of the arbitral proceeding shall be made at the first opportunity granted to the party to present a submission or to be heard.

IX URGENT REMEDIES

9.1 The Arbitral Tribunal, at the request of any of the parties or when it considers appropriate, by means of decision duly reasoned, may determine urgent measures, provisional remedies or interlocutory relief.

9.2 Until the Arbitral Tribunal is formed , the parties may file for provisional remedies or interlocutory relief at the competent judicial authority. In this case, the party shall immediately communicate such filing to CAMARB. The Arbitral Tribunal, as soon as it is formed, may reconsider the claim of the party, ratifying or modifying, partially or totally, the remedy granted by the judicial authority.

9.3 In the event any order from the Arbitral Tribunal is not complied with and if a coercive remedy is necessary, the interested party or the Arbitral Tribunal shall request its enforcement before the competent authority of the Judiciary.

9.4 The request made by any of the parties to a judicial authority in order to be granted provisional remedies or interlocutory relief before the formation of the Arbitral Tribunal shall not be considered a waiver of the arbitration agreement, and it shall not exclude the jurisdiction of the Arbitral Tribunal to reconsider it.

X ARBITRAL AWARD

10.1 The Arbitral Tribunal shall render an award within 60 (sixty) days from the end of the deadline for the submission of final allegations by the parties, except if another time period has been set in the Terms of Arbitration.

10.2 The award and the other decisions shall be given by a majority decision, where each arbitrator has one vote, including the chairperson of the Arbitral Tribunal. If there is no majority decision, the vote of the chairperson of the Arbitral Tribunal shall prevail.

10.3 The Arbitral Tribunal may deliberate in any place it considers appropriate, but the award shall be rendered in the headquarters of CAMARB, except if otherwise prescribed by the parties.

10.4 The award shall be reduced to writing by the Arbitral Tribunal and shall be signed by all arbitrators. It shall, however, be sufficient for its effectiveness if the majority of the arbitrators sign it, in case one of them refuses to sign it or cannot sign it.

10.5 The arbitration award shall include:

  1. a) the summary, with the name of the parties and the brief description of the case;
  2. b) the grounds for the decision, in which the issues of fact and of law are analyzed, with express reference that it was reached by equity, if applicable;
  3. c) the decision, in which the arbitrators resolve all the issues submitted to them, and determine the time for its fulfillment, if applicable;
  4. d) the date and the place in which it was rendered.

10.6 The award shall determine the costs and expenses of the arbitration, in conformity with CAMARB’s Fees Schedule, including the Administrative fee and the Arbitrators fees, as well as the liability of each party in the payment of these amounts, subject to the limits established in the arbitration agreement or in the Terms of Arbitration, according to each case.

10.7 Once the award is rendered by the Arbitral Tribunal and sent to the Secretary General of CAMARB within the time limit set forth in item 10.1, the Secretary General shall send to each of the parties, within 5 (five) days, one original counterpart with proof of receipt. The Secretary General shall keep in its archives a complete copy of the award, along with a copy of the case records, duly authenticated by the chairperson of the Arbitral Tribunal.

10.8 In the event of material mistake, omission, obscurity, doubt or contradiction of the arbitration award, the parties shall have five days from the date the award is received to file a motion for clarification.

10.9 The Arbitral Tribunal may issue a partial award before the final award of the arbitration.

XI ADMINISTRATIVE FEE, ARBITRATORS’ FEES, AND OTHER EXPENSES

11.1 The CAMARB’s Board of Directors shall draw up the Table of the Administrative Fee and Arbitrators’ Fees applicable to the arbitral proceedings that it manages.

11.2 The expenses related to mailing, photocopies, long distance calls, lease of equipment and place for conduct of hearings, if they do not occur at the headquarters of CAMARB, as well as the expenses regarding fees and transit of experts, translators and arbitrators, are not included in the Administrative fee. The Secretary General of CAMARB may request that the parties make a deposit in escrow for such expenses.

11.3 The Arbitrators’ fees shall be determined in each case by the Executive Board, immediately after the appointment of the members of the Arbitral Tribunal, in accordance with the parameters set in the referred Schedule. However, the Executive Board, based on exceptional circumstances, may suggest fees out of the limits set out in the Schedule, subject to the acceptance of the arbitrators.

11.4 In case a counterclaim is presented, new Administrative fee and Arbitrators’ fees shall be due, to be calculated in accordance with the amount in dispute in the counterclaim.

11.5 The fees of the chairperson of the Arbitral Tribunal shall be 15% (fifteen per cent) higher than the fees established by the Executive Board for each of the other arbitrators. Should the arbitration be conducted by one arbitrator, the fees established on the Table shall be 30% (thirty per cent) higher.

11.6 At the execution of the Terms of Arbitration, the claimant shall pay half of the total amount of Administrative fee and of the Arbitrators’ fees, while the respondent shall pay the other half, according to the criteria defined in these Rules, except if otherwise decided by the Arbitral Tribunal.

11.7 In the event the parties reach a settlement, after the execution of the Terms of Arbitration and before the filing of the initial submissions, the arbitrators shall receive only 50% (fifty per cent) of the total amount of the fees, and the other half shall be returned to the parties.

11.8 In case any of the parties fails to pay the Administrative fee and/or the Arbitrators’ fees, at the time and in the amounts stipulated, the other party may advance the respective value in order to allow the arbitration to be carried on, in which case the arbitral award shall provide for a settlement of these costs at the end of the arbitral proceeding. In case the full advance payment of the Administrative fee and/or of the Arbitrators’ fees is not made within 15 (fifteen) days, the arbitration shall be suspended, and it may be resumed after such payment is made. In the event of a counterclaim, this item shall apply separately to the claims of the claimant and to those of the respondent.

11.9 If, during the arbitration, it is verified that the economic amount in dispute informed by the parties is lower than the real economic amount assessed according to the arguments produced during the proceeding, the Secretary General of CAMARB or the arbitrators shall proceed to the respective adjustment. If that occurs, the parties shall complete the amount of the Administrative fee and the Arbitrators’ fees initially paid, within 15 (fifteen) days from the date of receipt of such a notice.

11.10 In the event this balance is not paid, the arbitration shall be suspended, under the same terms as item 11.8.

11.11 The suspension for failure to pay shall not last for more than 90 (ninety) days, after which the arbitration shall be considered terminated for all purposes of law. The amounts related to the Administrative fee and to the Arbitrators’ fees paid until that moment shall be reverted in favor of CAMARB and of the arbitrators, respectively.

11.12 The expenses incurred for the practice of acts in the arbitral proceeding shall be paid by the party requesting the respective measure or by both parties if the measure is on the initiative of the Arbitral Tribunal or if it is determined by these Rules. The Secretary General of CAMARB may request the parties to advance payment sufficient to compensate the expenses determined for the proceeding, which amount shall be set according to the specific case, and shall be subject to rendering of accounts. The final liability for the expenses with the arbitration shall be determined in the arbitral award, in accordance with item 10.6 of these Rules.

11.13 The parties shall not be charged any additional amount, if the Arbitral Tribunal is requested to correct any material mistake of the arbitration award; clarify any obscurity, doubt or contradiction of such award; or, also, make a statement about an omission, in respect of which it should have made a statement in the award.

XII FINAL PROVISIONS

12.1 The arbitral proceeding shall be strictly confidential, and CAMARB, the arbitrators and the parties themselves are barred from disclosing any information to which they have had access due to their function or participation in the proceeding, without the consent of all parties, except for the cases in which there is a legal obligation of publicity.

12.2 In the absence of determination by the parties in the arbitration clause of the place of the arbitration, the place of arbitration shall be the headquarters of CAMARB.

12.3 If there is no agreement by the parties, the Arbitral Tribunal shall determine the language or the languages of the arbitral proceeding, taking into consideration all relevant circumstances, including the language of the contract.

12.4 The Arbitral Tribunal shall interpret and apply these Rules in all aspects related to its jurisdiction, its duties and its prerogatives.

12.5 Any controversy among the arbitrators related to the interpretation or application of these Rules shall be resolved by the chairperson of the Arbitral Tribunal, whose decision in respect of that matter shall be final.

12.6 Any omissions shall be resolved by Law n. 9.307, of September 23rd 1996, and by the treaties and conventions regarding arbitration that apply in the Brazilian territory. In the absence of any specification in such instruments, the omissions shall be resolved by resolution of the Arbitral Tribunal or by the Executive Board of CAMARB, in case the Arbitral Tribunal has not been formed.

12.7 These Rules, registered at the Office of the Notary Public of Belo Horizonte, Minas Gerais, may only be amended by resolution of the CAMARB’s Board of Directors.