Administrative Resolution No. 06/20
REF.: EMERGENCY ARBITRATOR’S PROCEDURE
The President of CAMARB – Business Mediation and Arbitration Chamber – Brazil, vested on his duties set forth in the Bylaws, and whereas:
- the publication of the Arbitration Rules (2019), in force since August 12, 2019;
ii. the provisions of items 9.4, 9.5 and 9.6 of the CAMARB Arbitration Rules of 2019;
Resolves to regulate the specific procedure of the Emergency Arbitrator and the respective costs.
I GENERAL PROVISIONS
1.1. The party interested in requesting urgent relief, provisional remedy or interim relief, before the commencement of the jurisdiction of the Arbitral Tribunal, shall do so by electronic mail or registered letter, together with all documents necessary for the production of evidence.
1.2. The request shall be written in the arbitration language.
1.3. Unless otherwise provided, the Emergency Arbitrator’s procedure shall only apply to arbitrations arising from an arbitration agreement entered into after August 12, 2019, the date on which the CAMARB Arbitration Rules that provided for this procedure came into force.
1.4. All communications sent by the CAMARB´s Secretariat, when the Emergency Arbitrator procedure is adopted, shall be sent only by electronic mail, unless otherwise agreed. If the addressee does not expressly confirm receipt, the confirmation of delivery of the message to the addressee shall be deemed valid.
II REQUEST
2.1. The request for urgent relief shall contain:
(a) the full name and qualification, including physical and electronic address, of the claimant and his attorneys;
(a) the full name and qualification, including physical and, if any electronic address, of the respondent;
(c) the full copy of the instrument containing the arbitration agreement or a copy of an express agreement providing for the application of the rules relating to the Emergency Arbitrator procedure;
(d) the facts and grounds on which the claimant deems the relief necessary prior to the formation of the Arbitral Tribunal;
(e) a description of the main dispute submitted or to be submitted to CAMARB;
(f) all documents the claimant deems necessary to demonstrate the appropriateness of the urgent relief;
(g) proof of payment of the costs related to the Emergency Arbitrator procedure, pursuant to item 9.1 of this Resolution.
III PRELIMINARY ANALYSIS
3.1. The President of CAMARB or, in his absence or impossibility, the Vice President of Arbitration of CAMARB will consider the request and preliminarily reject it in any of the following hypotheses:
(a) when there is an Arbitral Tribunal established pursuant to item 6.3 of the CAMARB Arbitration Rules;
(b) when the parties involved, or their successors, are not the signatories to the arbitration agreement, as well as when they are not the parties to the express agreement providing for the application of the rules concerning the Emergency Arbitrator procedure;
(c) when the arbitration agreement referred to in item 2.1.(c) of this Resolution does not provide for the administration of the proceedings by CAMARB;
(d) unless otherwise provided, when the arbitration agreement is prior to August 12, 2019;
(e) when all parties have agreed to exclude the application of the Emergency Arbitrator procedure;
(f) when the parties have agreed that the court authority has exclusive jurisdiction to examine emergency measures at the pre-arbitral stage;
(g) when there is no proof of payment of the costs related to the Emergency Arbitrator procedure.
3.2. The President or, in his absence or impossibility, the Vice President of Arbitration of CAMARB may terminate the Emergency Arbitrator procedure if no arbitration related thereto is commenced within thirty (30) days of the date on which the parties are notified of the deliberation on the preliminary analysis provided for in item 3.1
IV EMERGENCY ARBITRATOR’S APPOINTMENT
4.1. Upon acceptance of the Request, the President of CAMARB, individually or, in his absence or incapacity, the Vice President of Arbitration of CAMARB, together with another Vice President, shall appoint an Emergency Arbitrator from among the members of the CAMARB List of Arbitrators, within two (2) days.
4.2. Subsequently, the Secretariat shall send a copy of the request and attached documents to the respondent and, at the same time, shall notify the appointed arbitrator so that, within two (2) days of the electronic receipt of his appointment, he may express his availability, non-impediment, independence and impartiality.
4.3. The Emergency Arbitrator may not act as an arbitrator in any arbitration related to the dispute that gave rise to the Request for Emergency Arbitrator, except with the express consent of the parties.
4.4. If there is a need to replace the Emergency Arbitrator, the appointment shall be made as provided in this Resolution for initial appointment and, additionally, in the Arbitration Rules of CAMARB.
V CHALLENGING OF THE EMERGENCY ARBITRATOR
5.1. Any challenge of the Emergency Arbitrator shall be presented within two (2) days as of the receipt of the statement of the appointed professional, pursuant to item 4.2 of this Resolution.
5.2. In the event of a challenge, the arbitrator shall be notified by the CAMARB´s Secretariat to make a statement thereon within two (2) days, which shall be submitted to the other party to speak thereon within the same time limit.
5.3. The challenge will be decided individually by the CAMARB President or the Vice President of Arbitration.
5.4. The party that challenges shall, at the time of the respective filing, pay the Emergency Arbitrator’s challenge fee, pursuant to item 9.3 of this Resolution. The final responsibility for such expense shall be declared in the decision of the Emergency Arbitrator or in the award rendered by the Arbitral Tribunal.
5.5. The decision shall be rendered within two (2) days of notification to the President or the Vice President of Arbitration of CAMARB, and such time limit may be extended by act of the President of CAMARB.
VI EMERGENCY ARBITRATOR’S PROCEDURE LOCATION
6.1. The emergency procedure shall be conducted at the venue of the arbitration. In the absence of an agreement as to the venue of the arbitration, the director considering the Request shall determine the venue of the Emergency Arbitrator’s procedure.
6.2. Any meetings of the Emergency Arbitrator with the parties may be conducted physically at any location deemed appropriate by the Emergency Arbitrator, or by videoconference, telephone, or other similar means of communication at the discretion of the Emergency Arbitrator.
VII EMERGENCY ARBITRATOR’S PROCEDURE
7.1. Immediately after the statement of the Emergency Arbitrator pursuant to item 4.2 of this Resolution, the Secretariat of CAMARB shall inform the parties thereof. If there is no challenge, all written communication from the parties, from then on, shall be addressed directly to the Emergency Arbitrator, with a copy to the other party(ies) and to the Secretariat of CAMARB.
7.2. Concurrently, the Secretariat of CAMARB shall send an electronic copy of the records to the Emergency Arbitrator who, as soon as possible, shall establish a schedule for the procedure.
7.3. The Emergency Arbitrator shall decide on the procedure to be adopted, being responsible for its expeditious and efficient conduct, taking into account the nature and urgency of the measure, as well as the principles of broad defense, adversary proceedings and equal treatment of the parties.
VIII EMERGENCY ARBITRATOR’S DECISION
8.1. The orders and decisions issued by the Emergency Arbitrator shall be reasoned in writing and shall comply with the requirements for award set forth in the Arbitration Rules of CAMARB applicable to the arbitration proceeding.
8.2. The decision of the Emergency Arbitrator shall be rendered within fifteen (15) days from the expiry of the term set forth in item 5.1 of this Resolution and, in the case of an objection, in accordance with item 5.5. The President or, in his absence or impossibility, the Vice President of Arbitration of CAMARB may extend such term ex officio or upon reasoned request from the Emergency Arbitrator.
8.3. In the decision, the Emergency Arbitrator shall determine if he has jurisdiction to order the required relief. The Emergency Arbitrator may impose measures aimed at the compliance with his decisions, including fines and the rendering of guarantees.
8.4. The decision of the Emergency Arbitrator shall be notified to the parties, with a copy to the Secretariat of CAMARB, according to item 7.1 of this Resolution.
8.5. By submitting the dispute to the Emergency Arbitrator, the parties bind themselves to comply immediately with the decisions that may be rendered by the Emergency Arbitrator.
8.6. The decision of the Emergency Arbitrator shall not bind the Arbitral Tribunal in the main arbitration proceeding with respect to any issue, matter or dispute determined in such order or award. The Arbitral Tribunal, once constituted, may review the request of the party, upholding, modifying or revoking, in whole or in part, the relief granted by the Emergency Arbitrator.
8.7. Upon termination of the jurisdiction of the Emergency Arbitrator, the Arbitral Tribunal shall decide any request of the parties concerning the procedure of the Emergency Arbitrator, including any demand for compliance with the award rendered by the Emergency Arbitrator and the reallocation of the costs of the Emergency Arbitrator’s procedure.
8.8. The decision of the Emergency Arbitrator shall no longer be binding on the parties if, for any reason, the main arbitration ends without the rendering of a final arbitration award.
IX EMERGENCY ARBITRATOR’S PROCEDURE COSTS
9.1. The claimant shall deposit the amount of R$60,000.00 (sixty thousand Brazilian Reais) at the time of submission of the request, which includes:
(a) Emergency Arbitrator’s fees, set at R$40,000.00 (forty thousand Brazilian Reais);
(b) Administration Fees of CAMARB, set at R$15,000.00 (fifteen thousand Brazilian Reais);
(c) Advance of expenses in the amount of R$5,000.00 (five thousand Brazilian Reais).
9.2. The Secretariat of CAMARB may request new contributions in advance of expenses from the claimant whenever necessary.
9.3. Any challenge to the Emergency Arbitrator shall be accompanied by proof of payment of an Administration Fee of R$5,000.00 (five thousand Brazilian Reais).
9.4. The costs associated with the Emergency Arbitrator’s procedure shall be determined and allocated between the parties by the Emergency Arbitrator, including those set forth in items 9.1 and 9.3 of this Resolution, as well as other costs incurred by the parties during the Emergency Arbitrator’s procedure, without prejudice to the Arbitral Tribunal’s powers to determine ultimately the allocation of such costs.
9.5. If the procedure of the Emergency Arbitrator is extinguished before the rendering of an award, the President or, in the absence or impossibility of the President, the Vice President of Arbitration of CAMARB shall decide if part of the amount initially paid shall be refunded to the claimant, if applicable. The amount of R$15,000.00 (fifteen thousand Brazilian Reais) of the Administration Fee will not be refunded under any circumstances whatsoever.
9.6. The President of CAMARB may, at any time during the Emergency Arbitrator’s procedure, decide to increase his fees or the Administration Fee of CAMARB, taking into account the nature and complexity of the case, as well as the extent of the work spent by the Emergency Arbitrator and CAMARB. If the claimant fails to pay the expenses arising from the increase within the time limit set by the CAMARB´s Secretariat, the Request will be extinguished.
X FINAL PROVISIONS
10.1. The arbitral proceeding shall be strictly confidential, and CAMARB, the Emergency Arbitrator, other professionals acting in the case and the parties themselves shall not disclose any information to which they may have access as a result of their position or participation in the proceeding, without consent of all parties, except where there is a legal obligation to disclose and where so determined by the provisions of the CAMARB Arbitration Rules.
10.2. CAMARB is hereby authorized by the parties and by the Emergency Arbitrator to disclose excerpts of the arbitral awards for academic and informational purposes, provided that it removes the names of the parties, arbitrator and other information that allow identification of the case.
10.3. The Emergency Arbitrator shall interpret and apply this Resolution, including his jurisdiction, duties, and prerogatives.
10.4. After five (5) years from the rendering of the Emergency Arbitrator award, CAMARB is hereby authorized to discard the case records, and only the awards shall remain in its files.
10.5. The parties may, prior to the expiration of the time limit provided for in item 10.4, request the withdrawal of any documents filed by them.
10.6. Cases not provided for herein shall be governed by Brazilian Law No. 9307, of September 23, 1996, as amended by Brazilian Law No. 13129, of May 26, 2015, and by the arbitration treaties and agreements applicable in Brazil. The cases that are not covered herein shall be resolved by the Emergency Arbitrator or by the President or, in his absence, by the Vice-President of Arbitration of CAMARB, if the latter has not yet been appointed, in which case the decision may be reviewed by the Emergency Arbitrator after his appointment.
10.7. The Chamber’s Communication department and Secretariat shall arrange for the publication of this Administrative Resolution on the institution’s website.
Belo Horizonte, January 29, 2020.
Augusto Tolentino Pacheco de Medeiros
President of CAMARB