ARBITRATION AND MEDIATION CENTER OF THE CHAMBER OF COMMERCE BRAZIL-CANADA|
Section 1 – Submission to the Present Rules
1.1 - Any parties when submitting any dispute to the Arbitration Center of the Chamber of Commerce Brazil-Canada, Sao Paulo (Center), by means of arbitration, are bound to the present Rules, so recognizing the exclusive competence of the Center to administer the arbitration procedures.
1.2 - These Rules and any amendment thereto by the parties shall be applicable to each specific case submitted to the Center.
Section 2 – Object and Composition of the Center
2.1. The object of the Center is to undertake the arbitration cases submitted thereto, as herein set forth, as well as to administer the mediation procedure, following the proper procedure.
2.2. The Center may affiliate itself to associations or entities that congregate arbitration institutions in Brazil or abroad, and maintain exchange activities with them.
2.3. The Center is constituted by a Directive Board made up of a President, a Vice-President and a Secretary-General, and the Panel of Arbitrators, with a minimum of 10 (ten) and a maximum of 30 (thirty) members, among whom shall be appointed those who will act in each case submitted to the Center
2.4. The President and the Vice-President shall be elected by the General Meeting of the Chamber of Commerce Brazil-Canada for a 2 (two) year term , reelection being allowed.
2.5. The Secretary-General shall be appointed by the directive body of the Chamber of Commerce Brazil-Canada subject to the approval by the President of the Center.
2.6. It is incumbent upon the President:
(a) to represent the Center;
(b) to call and preside over the meetings of the directive board;
(c) to apply and make apply the norms of the present Regulation;
(d) to expedite ancillary administrative and procedure norms, in order to dispel doubts, direct the use of these Rules; including in connection with situations not contemplated herein.
(e) To appoint arbitrators in arbitration proceeding, when so requested by the parties.
(f) To perform any other attribution conferred upon him by the present Rules.
2.7. The president may create commissions composed by members of the Panel of Arbitrators to prepare studies and present recommendations in order to improve and develop the Center activities, including by addressing speeches and seminars, and yet, to give opinion concerning the interpretation on situations not contemplated herein.
2.8. It is incumbent upon the Vice-President:
(a) to replace the President in his absences and impediment;
(b) to help the President in the fulfillment of his duties.
(c) To perform the duties the President may assign him.
2.9. It is incumbent upon the Secretary-General:
(a) to keep in good order, under his care and responsibility, the Center registry books formally approved by the President;
(b) to receive and send out notices and communications, in the events determined in these Rules;
(c) to coordinate the expedient of the Center, specially in connection with the documents safeguard and dispatch, by copy, to the parties, are concerned, as determined by these Rules;
(d) to care for the good performance of the administrative service of the Center, and carry out the duties assigned by the President;
(e) to take care of the organization of events connected with the diffusion of arbitration in general and in particular with the Center activities.
Section 3 – Panel of Arbitrators
3.1. The arbitrators will be chosen among professionals of spotless reputation and recognized technical skill.
3.2. The arbitrators will be appointed by the president, after the other members of the Directive Board are heard, for a 5(five) year period; however, they may be appointed again for subsequent periods.
3.3. The President may, after the other members of the Directive Board are heard, substitute any of the arbitrators.
3.4. The arbitrators will take office by means of a record transcript in the appropriate book, signed by the President.
Section 4 – Headquarters
4.1. The Center is located in the Chamber’s headquarters, in the city and state of São Paulo - Brazil.
4.2. Notwithstanding the foregoing, arbitration proceedings may be conducted in any other place or city, as chosen by the parties, or determined by the arbitrators acting in each case.
4.3. It is incumbent upon the Chamber to give the Center administrative and secretarial support for the development of its activities.
Section 5 – Institution of Arbitration
5.1. The party, in a separate document containing a compromise clause which establishes the Center’s competence to decide on contractual disputes by means of arbitration, shall notify the Center of its intention to arbitrate, declaring forthwith upon, the nature of the dispute, the amount involved and the name and relevant data of the other party, attaching a counterpart of the relevant contract.
5.2.The Center shall send the other party a copy of this notification, as well as the list of names of those who integrate the Panel of Arbitrators and a counterpart of these Rules, inviting said party to appoint one arbitrator and the respective alternate within a 15(fifteen) day period. Identical communication shall be sent to the other litigant who will have the same period to appoint his arbitrator and the respective alternate.
5.3. The parties shall be informed by the Secretary-General about the appointment of the arbitrator by the other party.
5.4. The arbitrators appointed by the parties, on their turn, shall choose a third arbitrator among the members of the Panel of Arbitrators, who shall preside over the Arbitration Tribunal. The names appointed shall be submitted to the president of the Center for approval. Being approved the arbitrators shall express their acceptance by signing the Independence Statement, with which the arbitration proceedings shall be established and commenced, with the summons to the parties for the preparation of the Arbitration Term.
5.5. If any of the parties does not appoint an arbitrator and/or the alternate, the president of the Center shall make such appointment. The president of the Center is also entitled to appoint the arbitrator who shall act as chairperson of the Arbitration Tribunal, if such appointment is not made in the way indicated in article
5.6. The parties may agree that arbitration be conducted by a sole arbitrator, appointed by the parties by joint consent, alternate included, within a 15 (fifteen) day period. Once elapsed such period, if the parties have not appointed the sole arbitrator, he shall be appointed among the members of the Panel of Arbitrators by the president of the Center. The institution of an arbitration with a sole arbitrator shall follow the same proceedings set forth in these Rules for the arbitration with three arbitrators.
5.7. Notwithstanding the provisions of this Section, the Center may, at the president’s discretion, receive, initiate and proceed judgements , with arbitrator or arbitrators who are not members of its Panel of Arbitrators, provided that they are not disqualified and that if there is an Arbitration Tribunal, its chairperson be a member of the mentioned Panel.
5.8. Once chosen the arbitrators, the Center shall prepare the Arbitration Term with the participation of the parties, containing their names and personal data and those of the appointed arbitrators, as well as their alternates, the name and personal data of the arbitrator who shall act as chairperson of the Arbitration Tribunal, the place where the award shall be enacted, authorization or not for the arbitrators to judge based on the “ex aequo et bono” criteria, the language in which the arbitration shall be conducted, the object of the dispute, its value and the responsibility for the payment of the arbitration fees, experts’ and arbitrators’ compensation, as well as a declaration that the Arbitration Tribunal shall observe the terms and procedures set forth in these Rules.
5.9. The parties, the appointed arbitrators and their alternates, and two witnesses shall execute the Arbitration Term. The Arbitration Term shall be filed in the Center. The absence of signature of any of the parties shall not hinder the regular arbitration proceedings.
5.10. In the event of the nonexistence of a previous compromise clause and being the parties interested in settling the dispute by arbitration, the Arbitration Compromise shall be executed in the models devised in article 10 of Law nº 9,307, September 23rd , 1996.
Section 6 – Arbitration Tribunal
6.1. Members of the Center’s Panel of Arbitrators and/or others chosen by the parties, as contemplated by article 5.7 above, may be appointed arbitrators.
6.2. Any person who may be in following situations cannot be appointed as an arbitrator:
a) is a party of the dispute;
b) has intervened in the settlement of the dispute, as attorney at law of one of the parties, or has acted as witness, expert, or presented any opinion, legal or otherwise;
c) is consort, relative of one of the parties, related by blood or by affinity, in “linea recta” or collateral, up to the third degree of kindred;
d) is consort, relative of one of the parties, related by blood or affinity, in linea recta or collateral, up to the second degree of kindred, of the lawyer or attorney of one of the parties;
e) takes part in a directorate or administrative body of a corporation that is shareholder or part to the dispute.
f) Is a close friend or enemy of one of the parties;
g) Is creditor or debtor of one of the parties or its consort, or even relatives, in linea recta or collateral, up to the third degree of kindred;
h) Is presumptive heir, donee, employer, employee of one of the parties;
i) Receives gifts before or after the beginning of the dispute, advises any of the parties about he object of the dispute or provides resources to meet the arbitration costs;
j)Is interested in the settlement of the dispute, in behalf of one of the parties;
k)Has acted as a mediator or conciliator, before the institution of the arbitration, except if otherwise agreed by the parties.
6.3. In case of any of the hypothesis mentioned in article 6.2, it is incumbent upon the arbitrator to declare, at any moment, his disqualification or suspicion and refuse the appointment, or yet present resignation, being personally liable for the damages he may cause or have caused by the non-observance of this duty.
6.4. Whenever the arbitrator who becomes disqualified or under suspicion does not present resignation, any of the parties may request the removal which shall be unappealably judged within 10 (ten) days by a Committee made up of three members of the Panel of Arbitrators appointed by the president of the Center.
6.5. If during the proceeding any of the disqualifying or suspicion causes comes upon, or in case of death or incapacity of any of the arbitrators occurs, he shall be replaced by his alternate appointed in the Arbitration Convention or Arbitration Term.
6.6. In the hypothesis the alternate cannot perform the duties of the office by any reason and at any time, the corresponding party shall indicate a new arbitrator, preferably among the members of the Panel of Arbitrators.
Section 7 – Parties and Attorneys
7.1. The parties may be represented by any proxy, as well as by a duly empowered attorney.
7.2. Except as otherwise stated, all the communications, notifications or summons of proceedings shall be made to the attorney appointed by the party.
7.3. The attorneys at law shall benefit from all the faculties and privileges afforded them by the Law and the Bar Association, it being incumbent upon them to perform their duties in strict compliance with the same norms and highest ethical conduct.
Section 8 – Notifications and Terms
8.1. For all the effects of the present Rules, any notification shall be made by means of certified mail or by notary public. It can also be made, whenever possible, by fac simile, telex, electronic mail or equivalent means, with confirmation through the original documents or counterparts by means of certified mail or courier.
8.2. Each notification shall determine the term for its fulfillment of the requested measure, being the term counted by current days . The effective date of delivery of the notification will be considered as the beginning for the counting down of the term.
8.3. All and every document addressed to the Arbitration Tribunal shall be delivered against receipt at the Center Secretariat, in the same number of counterparts as the number of arbitrators, parties and an additional one for the Center file.
8.4. The terms contemplated in these Rules may be extended, if it is absolutely necessary, to the discretion of the chairperson of the Arbitration Tribunal.
8.5. Notwithstanding the above provision, in the absence of a stipulated term for a specific measure, a term of 5 (five) days shall be applied.
Section 9 – Procedure
9.1. Once instituted the arbitration, the chairperson of the Arbitration Tribunal may call the parties and the other arbitrators for a preliminary hearing, whereat a secretary ad hoc shall be appointed. The parties shall be clarified in connection with the proceedings, and the necessary decisions to regulate the development of arbitration shall be taken.
9.2. The parties shall present their written allegations, indicating the evidences they intend to produce, within a 10 (ten)day period, counted from the hearing date, if any, or from the notification date when sent with such objective.
9.3. During the 5 (five) days following the receipt of the allegations of the parties, the Center shall send the respective counterparts to the arbitrators and to the respective opposite parties, who shall present their statements within another 10 (ten) day period.
9.4.Within a 5 (five) day period from the receipt of the statements referred to in the previous article, the Arbitration Tribunal shall evaluate the state of the proceedings and determine, if necessary, the production of expert evidence. The parties can nominate technical assistants, within a subsequent 5(five) day period after being notified of the expert evidence presentation.
9.5. The parties can submit all the evidences they deem convenient in order to instruct the proceedings and to enlighten the arbitrators. Yet, the parties shall present any other available evidences that any member of the Arbitration Tribunal may consider necessary for the understanding and settlement of the dispute. It is up the Arbitration Tribunal to accept any evidence deemed as convenient, necessary or relevant.
9.6. All the evidences shall be presented to the Arbitration Tribunal, that shall notify the other party so as it can manifest thereon.
9.7. The Center shall provide at the request of one or both parties, a counterpart of the term of depositions, as well as interpreters or translators services whenever necessary. The party or parties that have requested such measures shall cover the amount of the estimated cost in advance to the Treasury of the Center, according to what is contemplated in Section V.
9.8.The arbitration procedure is strictly confidential, and only the people who have a legitimate interest in it shall take part in the proceedings. At the hearings the chairperson of the Arbitration Tribunal shall exert best efforts in order that any witness be conducted out of the hearing place during the depositions of the parties or of other witnesses.
9.9. It is forbidden to members of the Center, the arbitrators and the parties to disclose any information they may have had access to during the performance of their duties or in view of their participation in the arbitration proceedings.
9.10. The procedure shall be carried on in case of absence of any of the parties, provided some, being duly notified, fails to present or fails to obtain the adjournment of the hearing. The award shall not, in any hypotheses, be substantiated in the absence of a party.
9.11. Once the Arbitration Tribunal considers necessary a diligence out of the arbitration place for its conviction, the chairperson of the Arbitration Tribunal shall notify the parties about the date, hour and place where such diligence shall take place, so that they can follow it if they want to.
9.12. Once the diligence is over, the chairperson of the Arbitration Tribunal shall draw up a term, within a 3(three) day period, containing the reproduction of the events and the conclusions of the Arbitration Tribunal, notifying the parties, which can pronounce themselves about it.
9.13. In case oral evidence is needed the chairperson of the Arbitration Tribunal shall call the parties and the other arbitrators for the instruction hearing in day, hour and place previously fixed.
9.14. The parties shall be called at least 10(ten) days prior to the date set.
9.15. In case of expert evidence, the instruction hearing shall be summoned in a period not exceeding 30(thirty) days from the delivery of the expert’s report. In case no expert evidence has been requested, the instruction hearing, if necessary, shall take place within a thirty-day period, to be counted from the end of the period mentioned in article 9.3.
9.16. Once the instruction hearing is closed, the Arbitration Tribunal shall grant a period of up to 10(ten) days for the parties to present their final allegations.
9.17. The Arbitration Tribunal may, if deemed necessary, determine the adjournment or postponement of the hearing. Such adjournment or postponement will be mandatory if so required by all the parties, and the date for its continuation or re installation shall be designated at once.
9.18. The Arbitration Tribunal shall adopt the necessary and convenient measures for the correct development of the proceedings, and, when convenient, may require the competent judiciary authority the adoption of provisional remedies and punishment.
9.19. In the hypothesis any witness refuses to be present to the instruction hearing, or if present refuses to depose, without any legal reason, the Arbitration Tribunal may require the competent Court to adopt the adequate judicial measures to take the deposition of the defaulting witness.
Section 10 – Award
10.1. The Arbitration Tribunal shall pronounce the award within a 20 (twenty) day period, which shall be counted:
a) if no hearing occurred , from the end of the period mentioned in article 9.3;
b) if an instruction hearing occurred, from the end of the period for the final allegations as set forth in article 9.16.
10.2. The period mentioned in the previous article can be extended up to 60 (sixty) days, at the discretion of the chairperson of the Arbitration Tribunal.
10.3. The award shall be pronounced by the majority of votes, and each arbitrator, the chairperson of the Arbitration Tribunal included, shall have one vote. The award shall be put in written form by the chairperson of the Arbitration Tribunal and signed by all the arbitrators. It is incumbent upon the chairperson of the Arbitration Tribunal to certify the absence or divergence concerning the signature of the award by the arbitrators.
10.4. The arbitrator who disagrees from the majority can substantiate the defeated vote, that shall be a part of the award.
10.5. The award shall necessarily contain:
(a) a report with the names of the parties and a summary of the dispute;
(b) the basis for the decision, which will settle questions of fact and law, with express statement, when needed, of having been pronounced “ex aequo et bono”;
(c) the decision, with all its specifications and term for the fulfillment of the decision, in case of need; and
(d) the day, month, year and place where it was pronounced.
10.6. The arbitration fees and expenses shall also be contemplated in the award, as well as the respective pro rata attribution thereof, with due observance of what has been agreed by the parties in the arbitration convention.
10.7. Upon the award pronunciation, the arbitration will be concluded, and the chairperson of the Arbitration Tribunal shall send a counterpart of the decision to the parties, by mail or by any other means of communication, or, by handing it over personally to the parties against receipt.
10.8. If, the parties settle their dispute during the course of the arbitration, the Arbitration Tribunal may, if so requested by the parties, issue a declaring award, such fact observing, whenever applicable, what is set forth in this Section.
Section 11 – Fulfillment of Award
11.1. The parties must fulfill the award, as pronounced, in the form and terms therein established.
11.2. In the hypothesis of non-fulfillment of the award, the aggrieved party can communicate the fact to the Center, so that it is disclosed to other arbitration institutions and the chambers of commerce or similar entities, in the Country or abroad.
11.3. The Center may provide, by written request of any of the parties or of the arbitrators, certified copies of the documents referring to the arbitration procedure and necessary to file any suit related to the arbitration.
Section 12 – Fees, Charges, Compensation and Expenses
12.1. The Center shall have a table of fees, charges and arbitrators’ and experts’ compensation (Table), which may be periodically revised.
12.2. If the amount of the claim or counterclaim is not known, the Table will anticipate a minimum incidence of fees.
12.3. In any case, the payment of fees shall be made, and they shall have as basis, the exact value involved in the judgement or, in case of an amicable settlement by agreement, the one mentioned in the award that recognizes it, according to criteria established in the Table.
12.4. In the act of institution of Arbitration, the parties shall collect to the Center the amount of initial fees and charges devised in the Table.
12.5. The arbitrators’ and experts’ compensation shall be calculated on a flexible hourly basis according to the amount of the claim or counterclaim and according to the Table. The responsibility for the payment will follow what shall have been established in the Arbitration Convention and in these Rules.
12.6. Each party shall deposit with the Center, in the date the Arbitration is instituted, 20% (twenty percent) of the estimated amount of the arbitrators’ compensation, sum which shall be discounted from the amount due, at the end, by the respective party, relative to such cost.
12.7. The Center may determine that besides what is devised in article 12.4, the parties shall deposit in advance the necessary amounts to cover the arbitration fees and charges, as well as possible expenses. The Center shall account for the parties on the use of such sums and shall reimburse the eventual balance.
12.8. All the fees and expenses which may be incurred during the arbitration shall be supported by the party that required the measure, or by the parties, equally, if arising out of measures required by the Arbitration Tribunal.12.9. The chairperson of the Arbitration Tribunal shall determine the reimbursement, to the Center, of any amounts it may have advanced or expenses it may have supported, as well as the payment of all the fees or charges due and not collected by any of the parties.
Section 13 – Interpretation
13.1. The arbitrators shall interpret and apply the present Rules in all that concerns their powers and obligations.
13.2. The majority criteria shall also be observed concerning the interlocutory decisions which are proper to the Arbitration Tribunal, including the interpretation and application of these Rules.
13.3. In case of unanimous decision, the arbitrators may submit to the president of the Center consultation concerning the interpretation of the provisions of these Rules.
13.4. Unless the parties agree otherwise, the Center Rules in force on the date the notification devised in article 5.1 is served, shall be applicable.
Section 14 – Effectiveness
14.1. The present Rules, approved by the Extraordinary General Meeting of the Chamber of Commerce Brazil-Canada which took place on July 15th, 1998, became in force on the same date, and so shall be for an undetermined period.
14.2. Any and all prior rules or norms related to the subject become null and void.
Section 15 – Mediation
15.1. The Center can also offer Mediation services to interested parties, according to the Mediation Program attached to the present Rules and made a part of them.
Mediation Program of the Arbitration and Mediation Center of the Chamber of Commerce Brazil-Canada
Section 1 – Mediation
1.1. Mediation is a non-confronting means of amicable solution of disputes and shall be processed by the Arbitration and Mediation Center of the Chamber of Commerce Brazil-Canada (CENTER) in the terms of the present norms.
1.2. Any party, in disputes of a commercial or civil nature, may resort to the Center, seeking for their settlement when relative to the interpretation or the fulfillment of agreements by means of a mediation procedure.
Section 2 – Preliminary Measures
2.1. The party wishing to propose the mediation procedure shall notify the Center in writing, which shall appoint day and hour for an interview, free of any cost and with no commitment, known as pre-mediation, to which the party shall be present, and it may bring an attorney, where the work methodology, the responsibilities of the parties and mediators and other relevant information shall be presented.
2.2. The party shall have 2 (two) days to decide whether it considers the mediation procedure useful and appropriate for its case. If so, the Center shall invite the other party, and proceed in an identical way to the one established in the preceding article.
2.3. The other party shall have a 2 (two) day period to manifest itself. In case it concurs, the Center shall present both parties the list of mediators, so that they can choose within a 5 (five) day period, by joint consent, the professional who shall conduct the mediation procedure. In case they do not reach to an agreement, the mediator shall be appointed by the President of the Center.
Section 3 – Mediation Term
3.1. Within no more than a 3 (three) day period after the appointment of the mediator, a meeting shall be convened, whereat the parties, the attorneys and the mediator shall establish the meeting schedule, by executing the Mediation Term . The fees due by the parties according to the Costs Table and the mediator’s compensation shall then be collected.
3.2. Unless the parties agree otherwise, the mediation procedure cannot take more than 30 (thirty) days, from the execution of the Mediation Term.
3.3. The mediator shall determine the meeting place, which can be at the Chamber’s headquarter or at any other place.
Section 4 – Amicable Settlement
4.1. If the mediation is successful, by means of an amicable settlement between the parties, the mediator shall put in writing the respective Agreement Term along with the parties and attorneys. A counterpart of the Agreement Term shall be kept in a file with the Center, for record and guarantee of the parties.
Section 5 – General Provisions
5.1. The mediator or any of the parties may interrupt the mediation procedure at any moment, if they conclude that any agreement for an amicable settlement is unachievable.
5.2. If an agreement is not possible, the mediator shall register such conclusion and recommend the parties, if it fits for, that the matter be submitted to arbitration.
5.3. Unless the parties agree otherwise, any person who has acted as a mediator, shall be disqualified to act as an arbitrator, should the dispute be submitted to arbitration.
5.4. No fact or circumstance disclosed during the mediation procedure shall damage the rights of any of the parties, in an eventual arbitration or judicial proceeding that follows, in the event mediation fails.
5.5. The mediation procedure is strictly confidential, it being forbidden to members of the Center, to the mediator and to the parties themselves or their attorneys to disclose any data or information related to that, to which they have had access during the mentioned procedure or in view of their participation therein.
5.6. Once completed the mediation procedure, the Center shall account for the parties on the use of the amounts paid, asking for a complementation of, if necessary, with the refunding of any existing balance. If the mediation procedure is interrupted, the parties shall be reimbursed of amounts advanced referring to the hours the mediator services were not used.
5.7. The Panel of Mediators of the Center shall be composed by professionals of spotless reputation and recognized technical skill appointed by the president of the Center.
Section 6 – Effectiveness
6.1. The present Program approved by the Extraordinary General Assembly of the Chamber of Commerce Brazil-Canada which took place on July 15th, 1998, became in force on that same date, and so shall be for an undetermined period.
Section 7 – Subsidiary Source
7.1. The Rules of Arbitration of the Center shall be used as a subsidiary source of norms in all the matters which do not conflict with the present Program.
7.2. Any doubts arising out of this Program shall be dispelled by the president of the Center, as well as the cases not contemplated herein.