AR 09/2014

Arbitration involving Brazilian States and State Entities

CAM-CCBC Administrative Resolution no. 9, of October 20, 2014.

Former No.: 03/2014

Re.: Interpretation and application of CAM-CCBC Arbitration Rules
Arbitration involving Brazilian States and State Entities

The President of CAM-CCBC, in the exercise of the duties assigned to him by Article 2.6., letters ‘c’ and ‘d’ of CAM-CCBC Rules, as approved at a Special Meeting of the Chamber of Commerce Brazil-Canada held on September 1, 2011, decides to issue the following statements, which provide for the interpretation of this institution’s Rules on arbitral proceedings involving the Brazilian Public Administration (hereinafter referred to as “Public Administration”).

Statement 1. Arbitrations involving the Public Administration shall observe the CAM-CCBC Rules, without prejudice to the application of Brazilian laws and of international rules effective in the Brazilian legal system.

Application of CAM-CCBC Rules, as per Article 1.1., applies without prejudice to the national laws and international rules effective in the Brazilian legal system.

CAM-CCBC Rules, Art. 1.1. These Rules are binding on the parties who have decided to submit a dispute to the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada, which is abbreviated as CAM-CCBC.

 

Statement 2. The arbitral proceedings involving the Public Administration shall observe the constitutional principle of publicity, except where the information relative to the dispute are classified as confidential, under the applicable law.

As already mentioned in Article 14.1, which provides for the confidential treatment of arbitrations administered by the CAM-CCBC, arbitral proceedings involving the Public Administration shall observe the constitutional principle of publicity.

CAM-CCBC Rules, Art. 14.1. The arbitration proceedings are confidential, except for the situations provided for by law or by express agreement of the parties, or in view of the need to protect the right of a party involved in the arbitration.

 

Statement 3. The arbitral proceedings involving the Public Administration shall be seated in Brazil and adopt Portuguese as its official language.

The parties’ freedom of choice with regards to the venue and language of the proceedings in Articles 9.1 and 9.5 of the CAM-CCBC Rules may be limited in light of the parties’ needs. This is the case of the Public Administration, whose arbitrations must be seated in Brazil and adopt the Portuguese Language as the official language.

CAM-CCBC Rules, Art. 9.1. Arbitral proceedings may be seated anywhere in Brazil or abroad.

CAM-CCBC Rules, Art. 9.5. 9.1.  The arbitration may be seated anywhere in Brazil or abroad.

CAM-CCBC Rules, Art. 9.5. The arbitration will be conducted in the language agreed by the Parties.

 

Statement 4. In arbitrations involving disputes between the Public Entities and a private contractual counterparty, the private contractual counterparty may be responsible for the initial and/or anticipated payment of the fees and expenses due to CAM-CCBC, as well as for the advance of the fees due to the arbitrators, according to the amounts provided in Section 12 of the Rules, without prejudice to any subsequent reimbursement thereof by the Public Entities, as determined by the arbitration award.

The payment of administration fees, arbitrators’ fees and other expenses of the arbitration proceeding may be freely agreed upon between the parties. Thus, considering the needs of Public Entities and the agreement of the parties, the costs of the proceeding may be allocated to the private counterparty.

CAM-CCBC Rules, Art. 12.2. The Administrative Fee owed to the CAM-CCBC will be required from of the claimant as of the date the notice to the President is filed requesting commencement of arbitration, and from of the respondent as of the date it is notified thereof.

CAM-CCBC Rules, Art. 12.7. Each party will deposit with the CAM-CCBC its portion of the amount of the arbitrators’ fees, corresponding to a minimum number of hours established in the Table of Expenses or a percentage of the amount in dispute. This deposit must be made by the time established in the Table of Expenses.

 

Statement 5. The amicus curiae is allowed to participate in the arbitration proceedings, provided that it has been previously authorized by the Arbitral Tribunal, which should consider, in its analysis of convenience and timeliness, the relevance of the matter and the representativeness of the applicant.

Whereas, the purpose of the amicus curiae is to assist the arbitrators; Whereas, the amicus curiae is not a party and therefore does not have the same rights and obligations of the parties and is not subject to the effects of the arbitral award; It is pertinent to clarify the CAM-CCBC Rules that, for arbitrations with the participation of the Public Administration, amicus curiae may be allowed to participate in the arbitration proceedings, provided that it is previously authorized by the Arbitral Tribunal, which, as clarified in Statement 5, in its analysis of convenience and timeliness, it should consider the relevance of the matter and the representativeness of the applicant.

 

Statement 6. The recommended model of arbitration clause for arbitrations involving the Public Administration is established as follows:

1- Any dispute arising from or relating to this agreement shall be definitively resolved by arbitration, under Federal Law No. 9.307/96.

1.1- The arbitration shall be administered by the Arbitration and Mediation Center of the Chamber of Commerce Brazil-Canada (“CAM-CCBC”) and shall comply with the provisions of the CAM-CCBC Rules, including the supplementary terms applicable to disputes involving the Public Administration, whose provisions become an integral part hereof.

1.2- The arbitral tribunal shall be composed of [one/three] arbitrators, appointed under the CAM-CCBC Rules.

1.3- The arbitration shall be seated in [City, State], Brazil.

1.4- The arbitral proceedings shall be conducted in Portuguese.

1.5- The arbitral proceedings shall observe the constitutional principle of publicity, except for the information relative to the dispute that may be classified as confidential, under the applicable law.

 

Statement 7. The recommended model of multi-tiered resolution clause, whereby mediation shall precede arbitration, in proceedings involving the Public Administration, is established as follows:

1- Any dispute originating from this agreement, including matters concerning its interpretation or enforcement (execution) shall be necessarily submitted to Mediation, administered by the Arbitration and Mediation Center of the Chamber of Commerce Brazil-Canada (“CAM-CCBC”), in accordance with its Mediation Guide and Rules, to be conducted by a Mediator from the CAM-CCBC List of Mediators who shall be appointed as therein provided.

1.1- A conflict not solved by mediation, under the mediation clause above, shall be definitively settled by arbitration, under Federal Law No. 9307/96, administered by CAM-CCBC, pursuant to the terms of its Rules.

2.1- The arbitration shall be administered by CAM-CCBC and shall comply with the provisions of the CAM-CCBC Rules, including the supplementary terms applicable to disputes involving the Public Administration, whose provisions become an integral part hereof.

2.2- The arbitral tribunal shall be composed of [one/three] arbitrators, appointed under the CAM-CCBC Rules.

2.3- The arbitration shall be seated in [City, State], Brazil.

2.4- The arbitral proceedings shall be conducted in Portuguese.

2.5- The arbitral proceedings shall observe the constitutional principle of publicity, except for the information relative to the dispute that may be classified as confidential, under the applicable law.

Statement 8. The Arbitral Tribunal may administer the arbitral proceedings involving the Public Administration in accordance with the specific elements required by the dispute.

 

São Paulo, October 20, 2014.

Frederico José Straube

President of CAM-CCBC

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