RA 32/2018

Ref.: Emergency Arbitrator Proceeding

Ref.: Emergency Arbitrator Proceeding

The President of the Arbitration and Mediation Center of the Chamber of Commerce Brazil-Canada (“CAM-CCBC”), in the exercise of the duties assigned to him by Article 2.6, letter ‘c’, of the CAM-CCBC Rules, as approved on September 1, 2011, and as amended on April 28, 2016, upon consideration of the Advisory Committee’s view thereon, decides to issue the following resolution, which provides for rules on the emergency arbitrator proceeding.

General Provisions

Article 1 – A party who needs urgent measures prior to the constitution of the Arbitral Tribunal under Article 4.14[1] of the CAM-CCBC Rules may so request in order for an emergency arbitrator to be appointed (“Request for Urgent Measures”), according to thecriteria below.

§1 The Request for Urgent Measures (“Request”) shall only be accepted if received by the CAM-CCBC Secretariat before the constitution of the Arbitral Tribunal under Article 4.14 of the CAM-CCBC Rules, upon official acknowledgment of receipt thereof, registered letter or electronic mail followed by a registered letter.

§2 The emergency arbitrator will not take action in the following situations:
(a) If the parties agreed to an arbitral clause before the issuance of this Resolution and failed to thereafter include the option to submit themselves to an emergency arbitrator proceeding, or
(b) (b) If the parties failed to expressly agree on the application of the rules concerning the emergency arbitrator.

Time-Periods

Article 2 – Time-periods are continuous, starting on the day following the day of receipt of the notice, and ending on the due day.

Request for Urgent Measures

Article 3 – The Request shall be submitted in a sufficient number of copies for the parties and the Secretariat of CAM-CCBC, and shall contain:
(a) The document with the arbitration clause providing for the authority of the CAM-CCBC to administer the arbitral proceedings;

(b) The name, details and full address of the parties;
(c) The full name and address of the applicant’s representatives;
(d) A description of the circumstances originating the Request, including a brief statement of the main dispute submitted or to be submitted to the CAM-CCBC;
(e) A description of the Urgent Measures requested and the grounds of the requested urgency, before constitution of the Arbitral Tribunal;
(f) An indication of the agreement between the parties on the seat, language(s), legal rule(s) applicable to the arbitration or, in the absence thereof, any mentions made by the parties containing these requirements;
(g) Any relevant agreements or information that the requesting party deems appropriate or which contribute to the analysis of the Request;
(h) Any judicial reliefs, either pending a decision or simultaneous with the Request and concerning the dispute, filed in court by the parties to the emergency arbitrator proceeding;
(i) The Request for Arbitration or any other claim related to the main dispute submitted to the CAM-CCBC by the parties bound by the emergency arbitrator proceeding;
(j) A proof of the payment of the provision for charges relative to the emergency arbitrator proceeding, under Article 28 hereof.

Article 4 – The Request shall be drafted in the arbitration’s language as agreed between the parties or, in the absence of such agreement, in the arbitration’s official language.

Preliminary Analysis of the Request by the President of the CAM-CCBC

Article 5 – The President of CAM-CCBC shall preliminarily reject the Request in the following cases:

(a) If an Arbitral Tribunal is already constituted, under the terms of article 4.14 of the CAM-CCBC Rules;

(b) In the absence of an arbitration clause providing for the authority of CAM-CCBC to administer the arbitral proceeding;

(c) If the parties have agreed on an arbitral clause before the issuance of this Resolution and failed to include, thereafter, the option to submit to the emergency arbitrator proceeding, under Article 1, Paragraph 2, (a), above;

(d) If the parties have failed to expressly agree on the application of the rules concerning the emergency arbitrator, under Article 1, paragraph 2, (b), above; or

(e) In the absence of proof of payment of the provisions for charges relative to the emergency arbitrator proceeding.

Article 6 – In the event of preliminary rejection, the Secretariat of CAM-CCBC shall notify the applicant informing that the emergency arbitrator proceeding shall not proceed.

Article 7 – If the Request is not preliminarily rejected, the Secretariat of CAM-CCBC shall immediately send to the other parties a copy of both the Request and the respective documents, and shall so notify the applicant.

Sole Paragraph – Unless otherwise agreed between the parties, one shall apply, before the acceptance and formal submission of the Questionnaire and Statement of Independence by the emergency arbitrator, the proceeding for electronic communication under Article 3 of Resolution no. 29/2018, and the parties shall inform their electronic addresses within no more than two (2) days from the date they were notified.

Connection with the Arbitral Proceeding

Article 8 – The President of CAM-CCBC shall terminate the emergency arbitrator proceeding if no request for commencement of the Arbitration Proceeding is presented within fifteen (15) days from receipt of the Request by the President of CAM-CCBC.

Sole Paragraph. Under exceptional circumstances, this time-period may be extended by the President of CAM-CCBC.

Appointment of the Emergency Arbitrator and Transmission of Case Records

Article 9 – The President of CAM-CCBC, upon accepting the emergency arbitrator proceeding, shall appoint an emergency arbitrator from among the members of the List of Arbitrators.

Article 10 – No emergency arbitrator may be appointed after constitution of the Arbitral Tribunal. However, the emergency arbitrator who is appointed before the constitution of the Arbitral Tribunal shall keep its authority to render his or her decision within the time-period set out in Article 22 of this Resolution.

Article 11 – The emergency arbitrator shall receive copies of the case records and shall, within up to two (2) days from receipt of his or her appointment, answer the CAM-CCBC Questionnaire on Conflict of Interest and Availability (“Questionnaire”) and sign the Statement of Independence, whose copies shall be sent to the parties by the Secretariat of CAM-CCBC.

Article 12 – The emergency arbitrator may not act as arbitrator in an arbitration connected with the dispute giving rise to the Request, except otherwise agreed by the parties.

Article 13 – Immediately after receipt of the Questionnaire and the Statement of Independence signed by the emergency arbitrator, the Secretariat of CAM-CCBC shall notify the parties. Then, all the written communication of the parties shall be addressed to the emergency arbitrator, with a copy to the other parties and to the Secretariat of the CAM-CCBC.

Article 14 – The emergency arbitrator shall decide on his or her authority and on the existence, validity and scope of the arbitration clause.

Challenge against the Emergency Arbitrator

Article 15 – Any challenge against the emergency arbitrator shall be presented within two (2) days from receipt of the notice of appointment of the emergency arbitrator.

Article 16 – The challenge shall be decided by the President of CAM-CCBC, following the lapse of the time-period for the emergency arbitrator and the other parties to speak in the case records in such respect.

Article 17 – If in the course of the proceeding some of the impediment causes arise, or in the event of death or incapacity of the emergency arbitrator, the latter shall be substituted by another arbitrator, appointed by the President of CAM-CCBC within two (2) days.

Sole Paragraph – In the event of substitution of the emergency arbitrator, the emergency arbitrator proceeding shall be resume at the point at which it is found, unless otherwise determined by the new emergency arbitrator.

Seat of the Emergency Arbitrator Proceeding 

Article 18 – The seat of the emergency proceeding shall be that agreed on between the parties to be the seat of the arbitration. If the parties have failed to determine the seat of the arbitration, or if the designation of the seat is incomplete, the President of CAM-CCBC may stipulate the venue for the emergency arbitrator proceeding, considering the circumstances and specific features of the case, without prejudice to the terms of Article 9.3[1] of the CAM-CCBC Rules.

[1] CAM-CCBC Rules, Article 9.3 The acts of the arbitration proceedings can may occur at a place other than the seat of the arbitration, at the discretion of the Arbitral Tribunal.

Article 19 – Any conferences held between the emergency arbitrator and the parties may be conducted in person at any place the emergency arbitrator considers appropriate, or through videoconference, conference call or other similar means of communication.

Proceeding 

Article 20 – The emergency arbitrator shall conduct the proceeding in such manner that he or she deems appropriate, considering the nature of the dispute and the urgency of the Request, subject to the principles of audi alteram partem, the full right to defend and the equal treatment of the parties.

Sole Paragraph – Following receipt of the case records, the emergency arbitrator shall prepare the interim schedule for the proceeding.

Decision of the Emergency Arbitrator

Article 21 – The rationale of the orders and decisions rendered by the emergency arbitrator shall be stated in writing and observe the requirements of Article 10.4[1] of the CAM-CCBC Rules.

Sole Paragraph. The emergency arbitrator may set the conditions he or she deems fit to ensure enforcement of his or her decisions, including pecuniary penalties and the posting of bonds.

Article 22 – The decision of the emergency arbitrator shall be rendered within fifteen (15) days from submission of the Statement of Independence duly signed, or as provided in the interim schedule. The President of CAM-CCBC may extend such time-period (i) upon a justified request of the emergency arbitrator, (ii) on his or her own initiative in the appropriate circumstances, or (iii) if the parties so agree.

Article 23 – The notice of the decision rendered by the emergency arbitrator to the parties, with a copy to the Secretariat of CAM-CCBC, may be made by any means under Article 6.2.[2] of the CAM-CCBC Rules.

Article 24 – Upon submission of a dispute to emergency arbitration, the parties agree to promptly perform the decisions rendered by the emergency arbitrator.

Article 25 – The decisions issued by the emergency arbitrator, considering their provisional nature, are not binding on the Arbitral Tribunal, which once constituted shall have authority to modify, revoke or repeal any decision previously rendered.

Article 26 – Once the authority of the emergency arbitrator is concluded, the Arbitral Tribunal shall decide on any requests made by the parties on the emergency arbitrator proceeding, including any claim relative to the performance of the decision rendered by the emergency arbitrator and the relocation of costs of the emergency arbitrator proceeding.

Article 27 – The decision rendered by the emergency arbitrator shall cease to be binding to the parties if, for any reason, the arbitration is concluded without the rendering of any final arbitral award.

Costs of the emergency arbitrator proceeding

Article 28 – The applicant shall deposit the amount of one hundred thousand reals (R$100,000.00) at the time of submission of the Request, which includes:

  • Fees to be paid to the emergency arbitrator in the amount of R$75,000.00;
  • Administrative fees to CAM-CCBC in the amount of R$20,000.00;
  • Expenditure fund in the amount of R$5.000,00.

Article 29 – If the Management of CAM-CCBC deems fit, or upon a justified request of the emergency arbitrator, the Management of CAM-CCBC may raise or reduce the costs of the emergency arbitrator proceeding, considering the nature and complexity of the case, and the work made by both the emergency arbitrator and CAM-CCBC.

Sole Paragraph – The Secretariat may request an additional amount to be provided to the expenditure fund whenever needed.

Article 30 – The costs connected with the emergency arbitrator proceeding shall be determined and allocated between the parties by the emergency arbitrator, including those provided for in Article 28, as well as other expenses incurred by the parties in the course of the emergency arbitrator proceeding, without prejudice to the authority of the Arbitral Tribunal to finally determine how said costs are to be allocated.

Article 31 – In the event the emergency arbitrator proceeding is terminated before the issuance of a decision, the President of CAM-CCBC shall decide on the amount to be reimbursed to the applicant, as the case may be. The R$20,000.00 administrative fees shall not be reimbursed, under any circumstance whatsoever.

Final Provision

Article 32 – The provisions of the CAM-CCBC Rules shall apply to the extent they do not conflict with this Resolution, and the President of CAM-CCBC shall decide on any doubt in this respect, according to his or her authority stated in Article 2.6[3] of the CAM-CCBC Rules.

[1] CAM-CCBC Rules, Article 10.4. The arbitral award must contain:

(a) a report, containing the parties’ names and a summary of the dispute;

(b) the reasons for the decision, which shall address both issues of fact and of law,  with an express statement that it was issued on an ex aequo et bono basis, as the case may be;

(c) the order, with all the specifications and time assigned for performance, as the case may be;

(d) the day, month and year on which it was issued and the seat of the arbitration.

[2] CAM-CCBC Rules, Article 6.2 For all purposes of these Rules, the communications, notices or the like will be made by letter, fax, e-mail or equivalent means, with confirmation of receipt.

[3] Arbitration Rules, Article 2.6 The duties of the President of the CAM-CCBC are as follows:

(a) Represent the CAM-CCBC;

(b) Convene and chair the meetings of the Executive Committee and convene the meetings of the Advisory Committee;

(c) Issue Administrative Resolutions;

(d) Approve Rules and norms related to other methods of alternative dispute resolution;

(e) Apply these Rules and have them applied;

(f) Issue supplementary rules to resolve doubts and provide guidance on the application of these Rules, including in the lack of specific provisions;

(g) Appoint arbitrators in ad hoc arbitrations, upon request of interested parties;

(h) Appoint arbitrators in the cases provided for in these Rules;

(i) Decide on the extension of time periods that do not fall within the authority of the Arbitral Tribunal, as well as those in reference to the appointment of arbitrators and mediators;

(j) Appoint arbitrators, mediators and specialists to be members of the respective lists of professionals;

(k) Perform other duties provided for in these Rules.

São Paulo, 20 de Julho de 2018.

 

Carlos Suplicy de Figueiredo Forbes

Presidente do CAM-CCBC

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