Rules for the Committee for the Prevention and Resolution of Disputes of CAM-CCBC
TABLE OF CONTENTS
A) Recommendation Committee
B) Decision Committee
A) Permanent Committee
B) Ad hoc Committee
ARTIGO 1– SCOPE
1.2 The Committee is not an arbitral tribunal and its final ruling (“Final Ruling”) does not produce the effects of a final decision or award issued in court or arbitral proceedings.
1.3 The submission of a controversy to the Committee, which will operate under the provisions of the Rules (“Rules”), shall be contracted in writing. Upon selection, these Rules becomes an integral part of the contract and submission of any controversy to the Committee shall be binding on the parties.
ARTICLE 2 – TYPES OF COMMITTEE
Section 1 – Recommendation or Decision Committee
2.1 There are two types of Committee: (A) Recommendation Committee, and (B) Decision Committee. In the absence of an express choice by the parties, the Committee shall be the Decision Committee.
A) Recommendation Committee
2.2 The Committee issues recommendation to the parties with an aim to resolving a controversy submitted to it (“Recommendation”). Compliance with the Recommendation is binding on the parties, except as formally rejected.
2.3 A party wishing to reject a Recommendation shall notify the Committee and the other parties, in writing, within fifteen (15) days from receipt of the Recommendation, by providing grounds therefor (“Notice of Rejection”), and its decision to submit the controversy to Arbitration or to the Judiciary, as per the terms of the contract. In such case, the requirement of compliance with the Recommendation shall be suspended.
2.4 The party who sends the notice shall commence the arbitral or court proceedings within thirty (30) days from submission of the Notice of Rejection. Failure to so proceed shall cease the suspension under Article 2.3 hereof and the Recommendation shall become binding and immediately performed.
2.5 Failure to comply with a binding Recommendation shall produce the relevant contractual and legal effects.
B) Decision Committee
2.6 The Committee issues a decision to resolve the controversy submitted to it (“Decision”). The Decision is binding and immediately performed.
2.7 The Decision may be challenged by the parties, through a notice to the Committee and to the other parties, in writing, within fifteen (15) days from receipt of the Decision, by providing grounds to the challenge (“Notice of Dissatisfaction”).
2.8 Either party may submit the controversy to arbitration or to the Judiciary, as the case may be. However, the Decision shall remain binding and shall be performed until otherwise decided by the arbitral tribunal or the Judiciary.
2.9 Failure to comply with a Decision shall produce the relevant contractual and legal effects.
Section 2 –Permanent or Ad hoc Committee
2.10 There are two types of Committee, permanent or ad hoc. In the absence of a choice by the parties, the Committee shall be permanent.
2.11 The parties may at any time agree on the discontinuance of the Committee, provided that they do so jointly and expressly.
A) Permanent Committee
2.12 The request for establishment of the Permanent Committee, unless otherwise specifically agreed between the parties, shall be presented within no more than sixty (60) days following the date of execution of the agreement, irrespective of the existence of controversy.
2.13 The Permanent Committee shall be discontinued following resolution of all the controversies submitted to it and upon full performance of all the contractual obligations (without prejudice to warranty periods, confidentiality term and other similar obligations).
B) Ad hoc Committee
2.14 The request for establishment of the Ad hoc Committee shall be presented by either party to address specific controversies. The Ad hoc Committee shall be discontinued following issuance of its Final Ruling and any answer to a request for clarification.
2.15 Unless otherwise provided by the parties, the Members of the Ad hoc Committee shall be automatically reappointed to resolve any new controversy.
ARTICLE 3 –ESTABLISHMENT
Section 1 – Qualification of the Committee Members
3.2 Any person over twenty-one (21) year of age, and who is independent and impartial, may be a member of the Committee (“Committee Member”).
3.3 Upon appointment of a person, the Committee Member shall inform in writing to the parties and to the other Committee Members about any facts or circumstances that might give rise to justified doubts as to his or her independence or impartiality.
3.4 If, in the exercise of his or her functions, new facts or circumstances arise that cast doubts into his or her independence and impartiality, the Committee Member shall immediately inform these facts and circumstances in a written communication addressed to the parties and to the other Committee Members.
3.5 Either party may challenge a Committee Member based on alleged lack of Independence or impartiality, provided such party so do within seven (7) days from appointment of the Committee Member or from the knowledge of said facts or circumstances leading to impediment or disqualification, by means of a request duly grounded, addressed to the President of the CAM-CCBC, who shall issue a final decision on the matter.
3.6 The Committee Members may not participate in judicial, arbitral or similar proceedings connected with the controversy submitted to the Committee, either in the capacity of arbitrator, expert, expert witness, legal representative of a party or of a consultant, unless otherwise agreed between the parties or as a result of legal requirement.
Section 2 – Appointment and Substitution of Committee Members
3.7 The party interested in forming a Committee, provided that the relevant contract duly meets the conditions of Article 1.3 above, shall notify the CAM-CCBC within the time-period stated in Article 2.12, in the cases of Permanent Committee, or in Article 2.14, in the cases of Ad hoc Committee.
3.8 In the absence of agreement on the number of Committee Members, the Committee shall be composed of three (3) members.
3.9 In the Committee composed of three (3) members, each party shall appoint one (1) Committee Member within seven (7) days. These members shall jointly appoint the Chairman of the Committee also within seven (7) days. In the event of absence of appointment of any Committee Member, appointment thereof shall be made by the President of the CAM-CCBC.
3.10 The Chairman of the Committee must have a degree in law and, preferably, experience in conducting dispute resolution methods that are worked out by the parties themselves.
3.11 In the event of failure, by the Chairman of the Committee, to comply with his or her duties, the President of the CAM-CCBC may substitute the Committee Member.
3.12 Upon substitution of a Committee Member, appointment of the substitute member shall observe the same rules as those applied for appointment. When the Committee is made up of three (3) or more members and one (1) of these is substituted, the two other members shall remain in the exercise of their functions, in that all the acts performed before substitution shall remain in full force and effect.
3.12.1 Unless otherwise expressly established by the parties, hearings and the issuance of Recommendations and Decisions shall be postponed until the effective substitution of the Committee Member.
3.13 The parties, the Committee Members and the representative of the Secretariat of the CAM-CCBC shall jointly execute the Terms of Reference of Committee of Prevention and Solution of Disputes, whereupon the Committee is deemed duly established (“Establishment Date”).
3.14 Should the contract provide for a different number of Committee Members or in the event of difficulties of any nature, for establishment of a Committee, the President of the CAM-CCBC shall, at the request of either party, and if possible, by previously hearing the other party, decide whatever is necessary for proper establishment thereof.
ARTICLE 4 – OPERATION
Section 1 –Organization and Remittance of Information and Documents
4.2 The Secretariat of the CAM-CCBC shall provide a place or a virtual space to be accessed by the parties and by the Committee (“Virtual Place”).
4.3 All the Information and Documents established by the parties and the Committee shall be posted by the parties on the Virtual Place, within the time-periods and under the formats as provided by Article 4.1 hereof.
4.4 Within no less than ten (10) days preceding each Ordinary Meeting, or forty-eight (48) hours preceding each Extraordinary Meeting, the parties shall inform the Secretariat of the CAM-CCBC, by email, of the items to be included in the agenda and shall remit any documents relative to the matters. The Secretariat of the CAM-CCBC, immediately following the end of the time-limit, shall draft the Meeting Agenda and post it on the Virtual Place, as well as any documents received, and communicate all of that to the parties and the Committee.
Section 2 – Committee Meetings, Submission and Dispute Resolution
4.5 The Committee and the parties shall hold Ordinary Meetings, in intervals of circa sixty (60) days, as per a calendar to be defined on an annual basis.
4.6 The parties shall inform the Committee of all the matters under discussion during performance of the contract and shall submit all the dissenting matters that have been included in the agenda.
4.7 The Committee shall assist the parties so that they reach a solution to each matter in debate.
4.8 The matters resolved during the Meeting shall be registered in Minutes.
4.9 The parties may suspend the discussion of items in the Agenda if they consider them to be susceptible of amicable resolution after the Meeting, and cause this suspension to be mentioned in the Minutes. At the subsequent Meeting, the parties shall inform the Committee of the resolution or status of the matter whose discussion has been suspended.
4.10 Should the parties fail to resolve a stalemate during the Meeting and fail to suspend discussion thereof, the Committee shall assign a deadline for the Requesting party to submit its Dispute Submission and any documents, and shall assign a deadline to the Requested party for this latter to present an Answer and any documents.
4.11 In order to reach its free conviction, the Committee may, at its sole discretion or at the request of the parties, ask for supplementary documents, take specific actions and determine the production of technical evidence, the hearing of representatives of the parties and/or witnesses and other measures it deems fit.
4.12 If, in the period between two Ordinary Meetings, a stalemate arises whose solution, in either party’s view, cannot wait until the next Ordinary Meeting, the interested party may request the Committee, by electronic message copied to the other party and to the Secretariat of the CAM-CCBC, the holding of an Extraordinary Meeting within no more than ten (10) days from request thereof.
4.13 The preparation, holding and development of the Extraordinary Meeting shall observe the rules applicable to the Ordinary Meetings (Articles 4.6 to 4.11 hereof).
4.14 In the event of Ad hoc Committee, one shall observe the rules that apply to the Extraordinary Meeting, and the works shall begin immediately after conclusion of the procedure for establishment thereof.
ARTICLE 5 – RULINGS
Section 1 – Form and Time
5.1 Interlocutory resolutions and Final Rulings shall, to the extent possible, be issued unanimously or, in the lack thereof, by majority vote. Each Committee Member is entitled to one (1) vote. The Committee Member who occasionally dissents from the Final Ruling shall state his or her reasons therefor in writing.
5.2 The Final Ruling shall be issued within thirty (30) days from the date of conclusion of the evidentiary phase or the measures under Article 4.11 hereof. Such time-period may be extended by fifteen (15) days, at the Committee’s discretion, considering the complexity of the controversy.
5.2.1 The Final Ruling shall, in an objective and concise manner, include:
(a) a brief report of the controversy;
(b) a summary of the proceeding followed by the Committee;
(c) the grounds on which the Committee relied;
(d) the Recommendation or the Decision, as the case may be; and
(e) the date, place and signature of all the Committee Members.
5.2.2 Should any Committee Member be unable or refuse to sign the Final Ruling, the Chairman of the Committee shall certify such fact.
Section 2 – Request for Clarification
5.3 Either party may request to the Committee the correction of a formal error or the clarification of any omission, doubt or inconsistency in a Final Ruling, within ten (10) days following receipt thereof.
5.4 The Committee shall present its answer within ten (10) days and, if it deems advisable, assign a period of ten (10) days for the other party to speak thereon.
5.5 As of the date of submission of the request for clarification, the time-period mentioned in Article 2.4 shall be automatically suspended, which shall be resumed on the date of receipt, by the parties, of the manifestation of the Committee.
ARTICLE 6 – FINAL PROVISIONS
6.2 In the exercise of its functions, the Committee shall act with independence and impartiality, and shall ensure the parties equal treatment and ensuring that the principle of audi alteram partem is effectively applied.
6.3 The parties shall act in good faith and collaborate with the Committee, by fulfilling its requests so as to ensure an effective proceeding.
6.4 The parties shall be responsible for the costs relative to the proceeding, including transportation, accommodation and all the means necessary for the Committee to be able to properly exercise its functions, under the specific cost schedule to be provided by the CAM-CCBC.
6.5 Unless otherwise provided, the proceeding is confidential, in that the right of use thereof in court or in arbitral proceedings concerning the controversy submitted to the Committee is hereby ensured.
6.6 The President of the CAM-CCBC shall enforce and demand enforcement of the norms set out in the Rules, aiming to solve doubts and guide application hereof, including as to the cases not provided for herein.
6.7 The CAM-CCBC and people connected therewith are not liable for any act or omission relative to the activities conducted by the Committee.
6.8 The Rules revokes the previous one and shall be effective on the date of issuance hereof, and shall apply to the proceedings involving Prevention and Solution of Disputes instituted before the CAM-CCBC as of August 1, 2018.