Mechanism grants speed for decisions on issues that cannot wait for the establishment of an arbitral tribunal
By Sérgio Siscaro
The time factor is a fundamental component of any conflict resolution process. In some cases, the analysis of some issues is of an emergency nature, due to the economic consequences that can get worse while a solution is not found. When there is this real need to obtain emergency measures before an arbitral tribunal can be established, the parties may refer such matters to an emergency arbitrator.
The emergency arbitrator can grant precautionary measures more promptly, avoiding that the parties need to request them to the Judiciary. The jurisdiction of this arbitrator shall end when the decision on the matter(s) presented is(are) rendered.
CAM-CCBC issued a regulation on the appointment of the emergency arbitrator three years ago, by the Administrative Resolution 32/2018. In last December, CAM-CCBC updated these rules, through the Administrative Resolution 44/2020 (available in https://ccbc.org.br/cam-ccbc-centro-arbitragem-mediacao/ra-44-2020/).
One of the changes refers to the use of electronic means to meet the requirements of the process – such as, for example, sending the request of urgent measures to the General Secretariat of the CAM-CCBC by e-mail, thus exempting the physical protocols or registered letters previously required. The measure is in line with the guidelines and safety standards brought from last year by the new coronavirus pandemic, which determine social distance and advise the limitation of people’s displacement.
Another innovation was the change of the opt-in procedure to opt-out – which means that the parties do not need to expressly choose for this modality in an arbitration clause or agreement. “Now, by choosing CAM-CCBC to administer the procedure, the parties are already bound to choose an emergency arbitrator, if necessary – unless otherwise expressly agreed”, informs the Center’s Secretary-General, Patricia Kobayashi. According to her, the parties often do not foresee the need of using the emergency arbitrator mechanism when drafting the arbitration clause – which motivated the CAM-CCBC to change its rules, in this regard.
The automatic binding to the emergency arbitrator mechanism will allow the entire procedure – including matters where the prevention of imminent damage or irreparable harm is necessary – to be maintained under the arbitration procedure, prior to the establishment of the Arbitral Tribunal. The use of the measure will allow the parties to have access, even before the establishment of the Arbitral Tribunal, to technical decisions issued by experts in the matter under discussion. Furthermore, the confidentiality of the information will be guaranteed, giving greater legal security to the parties about the conduct and result of the procedure.
The emergency arbitrator’s requests and decisions shall continue to be based on the provisions of Article 10.4 of CAM-CCBC Regulation, which establishes the requirements of the arbitral award.