Agenda de Eventos
The Brazilian Center of Mediation and Arbitration (Center), a nonprofit entity, tied to The Trade Association of Rio de Janeiro – ACRJ, to The Federacy of the Industries of Rio de Janeiro – FIRJAN and to FENASEG – The National Federacy of Insurance Companies, established on December 20th 2001 to promote alternative ways to solve conflicts and, in special, the mediation and the arbitration, adopt the present Arbitration Rules (Rules ).
Preamble
Any matter regarding disposable patrimonial rights could be an object of arbitration. The parties that agree to the rules of the Center are obliged to accept and fulfill these Rules and the Statute of Costs of the entity, admitting that the arbitral award that will be pronounced is final and definitive and does not allow appeal, not being accepted any delays or exceptions to these procedures.
ACRJ, FIRJAN and FENASEG recommend to those who desire to submit their disputes to arbitration through the Center the insertion of the following clause into their contracts:
ARBITRATION CLAUSE
“ANY AND ALL CONTROVERSY ARISING OUT OF THIS CONTRACT SHALL BE FINALLY SETTLED BY ARBITRATION IN ACCORDANCE WITH THE RULES OF THE BRAZILIAN CENTER OF MEDIATION AND ARBITRATION BY ONE OR MORE ARBITRATORS NOMINATED IN ACCORDANCE WITH THE SAME RULES. THE ARBITRAL AWARD IS FINAL AND BINDING ON THE PARTIES”
1 – Preliminary Provisions
1.1 – Parties that agree to arbitrate disputes using the services of the Center shall accept and adopt the present Rules and the Internal Rules of the Center as in effect at the date of the request for commencement of the arbitration, unless the parties decide otherwise.
1.2 – The reference to the Rules into the Convention of Arbitration assumes, unless provided otherwise, the use of the services of the Center in the resolution of disputes.
1.3 – The services of the Center intend to provide the fulfillment of its Rules and related acts. The Center shall not decide disputes submitted to arbitration. The achievement of the objectives agreed in the Convention of Arbitration and in other deeds related to the arbitration is the responsibility of the Arbitral Tribunal or the arbitrator (henceforth jointly called ‘Tribunal’; ‘Arbitrator’; or ‘Arbitrators’).
1.4 – Any and all controversy on the interpretation and the application of the Rules will be decided by the Tribunal taking into consideration, preferably, the common practice of, the Center. In the case of several Arbitrators, the decision will be reached by the majority. If a majority cannot be reached, the vote of the Chairman of the Tribunal shall prevail.
1.5 – All the documents, written petitions and communications must be presented in copies corresponding to the number of parties and Arbitrators; another copy shall be sent to the Secretariat of the Center
1.6 – All Tribunal and Secretariat of the Center communications may be served on a party at its known address or direction by any means that guarantee proof of remittance and, also, among others, by e-mail, registered letter, facsimile transmission or telegram.
1.7 – The terms set forth in these Rules shall begin to run on the business day following the day when the communication is received and the last day of the period is included in calculating the term. If the last day of such term is an official holiday at the arbitration headquarters or at the Center or at any of the parties’ headquarters, the term is extended until the first business day which follows.
1.8 – The parties may establish different terms from those set forth in these Rules. However, if the arbitration has already started, the Tribunal will have to approve them. In any event, the Center may extend said terms and also those established by the Rules, including those regarding the final term of the arbitration, should it understand it necessary for the faithful fulfillment of the responsibilities set forth in these Rules or in the applicable law.
1.9 – In the course of the arbitration proceedings the parties will be able to amend or complement the request or reply, provided that they do so within the scope of the Convention of Arbitration, unless the Arbitrators deem such amendment or complementation inappropriate because of the delay in which it was formulated, the damage it may cause to the other party or any other relevant circumstance.
1.10 – The parties shall pay the costs set forth by the Center before the commencement of the arbitration.
2 – Initial Moment of the Arbitration
2.1 – The party who whishes to initiate the arbitration shall give notice to the Secretariat of the Center which will notify the other party.
2.2 – Upon receipt of the notice, the request for arbitration shall be deemed to commence.
2.3 – The communication mentioned in item 2.1 above shall contain:
(i) The names and identification of the parties.
(ii) A brief description of the dispute and the cause of action
(iii) The claim, [relief or remedy sought] and, if possible, the amount claimed.
(iv) A reference to the Convention of Arbitration and indications as to the number of arbitrators, the place of arbitration, equity trial, applicable laws and language, and any other related matter.
2.4 – The Center shall submit to the other party the notice and the documents received on the above terms to respond within 30 days.
2.5 – At the discretion of the Center the period set forth in item 2.4 may be extended by a justified request from the party.
2.6 – In its statement of defense, the party shall respond succinctly about the proposals set forth in item 2.3.
2.7 – In the case of a counter-claim, it shall be succinctly formulated together with the response mentioned in the preceding item.
2.8 – The other party shall have 30 days to respond to the counter-claim. This term may be extended according to the provisions set forth in item 2.5 above.
3 – Effectiveness of the Convention of Arbitration
3.1 – The Center shall proceed with the arbitration should it understand prima facie the arbitration convention to be valid.
3.2 – The Center shall not proceed with the request for commence of the arbitration should it verify that the dispute regards, exclusively, an obligation to pay a net and certain amount, subject matter of a judicial or extrajudicial title.
3.3 – The Tribunal shall decide about the existence, validity and effectiveness of the convention of arbitration and of the contract which contains the arbitration commitment clause.
3.4 – The Center shall proceed with the arbitration regardless of the refuse or omission of any of the parties. In those cases, should the party refrain from appointing the Arbitrator, its appointment, as well as that of its substitute, shall be done by the Center. The absent party shall, nonetheless, be informed of subsequent proceedings and procedural acts.
3.5 – In the event of the hypothesis foreseen in item 3.4 above, and the solution by a sole Arbitrator being deliberated in the convention of arbitration, the sole Arbitrator and its substitute shall be appointed by the Center
4 – Of the Tribunal
4.1 – The parties may appoint Arbitrators among those that are members of the body of arbitrators of the Center, or those who are not, in uneven numbers, capable and that are trusted by the parties.
4.2 – Express disposal on the contrary excepted, the parties shall also appoint the respective substitute Arbitrators, and should the parties refuse to appoint Arbitrators, or fail to agree upon the appointments, the Center may proceed with the appointments.
4.3 – Those whose facts or acts characterize a relation of impediment or suspicion are forbidden to perform as Arbitrators.
4.4 – The Arbitrator shall be and remain independent and proceed with impartiality, competence, diligence and discretion, as well as adequately perform his function even in the final term.
4.5 – Before his acceptance, the person appointed as an Arbitrator shall disclose any fact that denotes or could denote any justified doubt regarding his impartiality and independence.
4.6 – The Arbitrator shall give immediate notice, in writing, to the Center and to the parties of any fact or circumstance that can put in doubt his independence.
4.7 – The decisions of the Center regarding the appointment, confirmation, refusal and substitution of the Arbitrator shall be definite.
4.8 – The acceptance of the Arbitrator of his appointment shall subject him to the rules set forth in the Convention and in the Term of Arbitration and to the duties, rights, responsibilities and obligations set forth in the law and in the present Rules as well as to the precepts of the Code of Ethics of the Center
4.9 – If the parties have not agreed on the number of Arbitrators, the Center shall appoint a sole Arbitrator, being able, however, to select three Arbitrators, in cases in which the dispute, pursuant to the criteria of the Center, does not allow for a sole Arbitrator. In this latter case, the parties shall appoint their Arbitrators and substitutes in the term set forth by the Center. The appointed Arbitrators shall appoint the third Arbitrator should the parties have failed to set forth a different proceeding.
4.10 – Have the parties agreed upon the solution of the dispute by a sole Arbitrator, said Arbitrator shall be chosen by the Center should the parties fail to agree upon the appointment within 30 days after the receipt, by the Defendant, of the request for the commencement of arbitration formulated by the Petitioner, or in any additional term that might be granted by the Center.
4.11 –If the dispute is not submitted to the solution by a sole Arbitrator, the Petitioner, in its request for the commencement of arbitration, and the Defendant, in its manifestation on said commencement, shall appoint the Arbitrators for confirmation. The remaining Arbitrator, who will act as the presiding Arbitrator of the Tribunal, shall be mutually appointed by the two Arbitrators appointed by the parties, should the parties have failed to set forth a different proceeding. However, if the Arbitrators appointed by the parties fail to agree upon the appointment of the third Arbitrator, or the appointment cannot be made according to the procedure selected by the parties within the term set forth by the parties and by the Center, the Center shall appoint the remaining Arbitrator.
4.12 – If one of the parties is a foreigner, the Center shall have regard to such fact when choosing the Arbitrators.
4.13 – The confirmation of the Tribunal by the Commission shall be forwarded to the parties immediately after the end of the period set forth for the refusal of Arbitrator, or the end of the phase for the discussion of the challenge of refusal.
4.14 – In making the appointment, the Center shall have unrestricted liberty to appoint anyone it deems adequate, even those among its body of arbitrators. The Center shall not be liable for the appointments, unless malice or mala fide are proved.
5 – Plurality of Parties
5.1 – If there is more than one Petitioner or Defendant and the dispute is not submitted to a sole Arbitrator, the Petitioners, jointly, and the Defendants, jointly, shall appoint their respective Arbitrators, under penalty of the Center to proceed with the appointment.
6 – Challenge of Arbitrator
6.1 – A party interested in challenge an Arbitrator due to lack of independence or any other reason shall send notice to the Center within fifteen days after the appointment of the challenged arbitrator has been learned by the challenging party, or within fifteen days after learning of the facts or circumstances that led it to that conclusion, through a justified request and the presentation of pertinent proof.
6.2 – The challenged Arbitrator as well as the other parties being heard, and, should it be the case, the other members of the Tribunal , all parties involved will be given notice of the manifestations, and the Center shall, opportunely, decide upon the validity of the challenge and, should it be found valid, decide upon its merit.
7 – Replacement of an Arbitrator
7.1 – An Arbitrator shall be replaced: (i) if an Arbitrator withdraws before his confirmation, (ii) in the event of his death, (iii) in the event of impossibility of his performing his functions, (iv) in the event of his refusal being accepted by the Center or (v) in the event that all parties require his replacement.
7.2 – The Center may replace an Arbitrator who the Center believes does not comply with the terms and norms of these Rules and others that are connected to it, or that is not capable to perform the functions to which he was appointed.
7.3 – In the event of the replacement of an Arbitrator, the party or parties who appointed him shall make another appointment within 15 days of the receipt of the notice of replacement. The Center may extend this period at its discretion
7.4 – The substitute Arbitrator shall, at his criterion, reiterate the proof already produced.
8 – Arbitral Proceedings
8.1 – The Tribunal shall be free to decide upon its own competence, including upon any objections related to the existence, effectiveness or validity of the convention of arbitration and the contract that contains the arbitration commitment clause which shall be dealt with as an independent agreement from the other terms of the contract.
8.2 – The party that intends to argue the issues set forth in the preceding item or those related to the arbitrability of the demand shall do so at the first opportunity it has of manifesting after the establishment of the Tribunal.
8.3 – The party may be assisted or represented in the arbitration by qualified attorneys and/or legal representatives. The names, addresses, directions and telephone numbers of the representatives shall be communicated, in writing, to the Tribunal.
8.4 – The headquarters and the language of the arbitration shall be determined by the Tribunal, unless the parties have determined otherwise.
8.5 – Unless the parties have agreed otherwise, the Tribunal shall hold meetings among its members, including with the involved parties and any other person or persons concerning the proceedings, at any place it deems appropriate, inside or outside the jurisdiction of its headquarters.
8.6 – The arbitral proceedings are subjected to these Rules. The Tribunal shall decide, freely, the eventual doubt, omission or conflict of said Rules, taking into regard the practices and the decisions adopted by the Commission
8.7 – In the conduction of the process the Tribunal shall adopt the necessary disposals which are compatible with the principles of freedom, informality and celerity. The Tribunal shall waive formalities or innovate the procedural rites, as long as the due process of law is respected.
8.8 – The parties are free to agree on the rules of law that shall be applied to the arbitration, being able, also, to stipulate that the arbitration takes place according to the general principles of law, in common practice and usage and in the international rules of commerce.
8.9 – The Tribunal shall have the power to decide by chancery if the parties have agreed upon granting such powers to the Tribunal.
8.10 – The Tribunal shall be established upon receipt of the pertinent documents sent by the Center. Immediately thereafter, the Tribunal shall give a period of 5 business days for complementary manifestations to those previously addressed by the parties
8.11 – Based on the documentation received, or before the parties, the Tribunal shall elaborate the Term of Arbitration (”Term”), which shall include:
1) – The name and qualification of the parties;
2) – The address, telephone and direction of the parties for receiving notifications and communications;
3) – A summary of the intentions and facts that support them and of the sums that can be determined, object of the main and counter claims
4) – The questions that shall be the object of the decision, should the Tribunal deem them appropriate.
5) – Name, qualification and direction of the Arbitrators
6) – Place of the headquarters, the language and the applicable rules of law, rules or principles applicable to the solution of the conflict.
8.12 – The Term shall be signed by the parties and the Tribunal within 30 days of the receipt of the complementary manifestations.
8.13 – In the event any of the parties refuses to participate in the elaboration of the Term or to sign it, the Tribunal shall submit it to the appreciation and approval of the Center so that the arbitration does not suffer solution of continuity.
8.14 – Concomitantly to the signature of the Term, the Tribunal shall present to the parties an estimative schedule containing the following proceedings and deadlines of the arbitration.
9 – Evidence
9.1 – Each party shall have the burden of proving the facts relied on to support its right. However, in any phase of the proceeding, the Tribunal may require the parties to deliver the evidence it judges necessary or appropriate.
9.2 – The delivery of confidential material shall be the object of specific consideration by the Tribunal regarding the convenience and the opportunity to deliver, according to the rules set forth by the parties.
9.3 – The Tribunal shall notify the other party of the evidence presented to manifest in 5 days.
9.4 – If a party, duly convoked to produce evidence or to take any another measure, does not do it in the term established by the Tribunal without presenting a justification for such, the Tribunal could pronounce the arbitral award based on the evidence that had been presented before it.
9.5 – Expert evidence can be admitted by the parties’ request, or at the discretion of the Tribunal, if it is necessary for the solution of the dispute. The parties shall have a common term of 6 days to present questions and assign assistant experts, should the Tribunal understand it so.
10 – Hearings
10.1 – The parties shall be given adequate advance notice of all hearings.
10.2 – The hearing shall be instated by the president of the Tribunal, at the presence of the other Arbitrators, at the appointed time, day, and place.
10.3 – The hearing instated, the president of the Tribunal shall invite the parties and/or their representatives or attorneys to produce the allegations and evidence, declaring, in the first place, the Petitioning and then the Defendant.
10.4 – The personal deposition and oral testimony of witnesses could be carried by means of videoconference, or by any other means that use the advanced technology of data, voice and image communication.
10.5 – In non compliance cases, without justified cause, of the summons to give personal deposition, the Tribunal shall take in consideration the behavior of the faulty party, when pronouncing its award; if the absence is of the witness, in the same circumstances, the Tribunal or its president could require the judiciary authority to lead the renitent witness by proving the existence of the Convention of Arbitration.
10.6 - The omission of the party shall not hinder the pronouncement of the award.
10.7 – Ended the instruction phase, the Tribunal can grant a period of 5 days to the parties to present their closing arguments succinctly.
11 – Provisional Remedies , Coercitive or Anticipatory Remedies
11.1 – At the request of any of the parties or at its sole discretion, the Tribunal may take any provisional remedies, coercitive or anticipatory remedies, it deems necessary.
11.2 – If it is urgent and the Tribunal has not yet been established, the parties can request provisional or coercitive remedies to the competent judicial authority. In this in case, the party shall immediately notify such request to the Center.
11.3 – The measure commanded by the Tribunal shall be honored by the party. Otherwise, said measure shall be executed by the competent Judiciary Power, so that it reaches all the desired and protected objectives of law.
12 – Award
12.1 – From the date of the signature of the Term, the Tribunal shall have a period of 6 months to pronounce the award, unless otherwise agreed by the parties.
12.2 – After the signature of the Term, the agreement of the Tribunal shall be needed if the parties decide to modify the period settled for the rendition of judgment.
12.3 – When there are several arbitrators, the decision shall be made by a majority of the Arbitrators. If there is not a majority agreement, the vote of the president of the Tribunal shall prevail.
12.4 – The Arbitrator who dissents from the majority may, should he desire, declare his vote separately.
12.5 – These are essential elements of the award
I – The report, that shall contain the names of the parties and the summary of the controversy;
II – The legal basis for the decision, where the questions of law and the questions of fact will be analyzed, and expressly mentioning if the Arbitrators have judged by chancery;
III –Determination, by which the Arbitrators shall decide the questions that are submitted to them and establish the period for the fulfillment of the decision, should that be pertinent; and
IV – The date and the place where it was pronounced.
12.6 – The arbitral award shall be signed by the Arbitrator, or all the Arbitrators. The president of the Tribunal shall, should one or some of the Arbitrators be impeded or unwilling to sign the award, certify such fact.
12.7 – The arbitral award shall decide on the responsibility of the parties concerning the costs and expenditures with the arbitration, as well as on expenses resulting from litigation in bad-faith, should it be the case, according to the rules set forth in the arbitration convention, if any.
12.8 – If, in the duration of the arbitration, the parties agree on a settlement of the dispute, the Arbitrator may, by request of the parties, declare such fact by means of an award, which shall contain requisites set forth in 12.5 above.
12.9 – The arbitral award pronounced, the arbitration shall be concluded, the Arbitrator or the president of the Tribunal shall send copies of the decision to the parties, via post or any other means of communication, with evidence of receipt, or, moreover, delivering it directly to the parties, by means of receipt.
12.10 – In a period of five days, from the receipt of the notification or the personal receipt of the award, the desiring party, by means of a communication to the other party, may request the following to the Tribunal:
I – correct any material error of the award;
II – clarify any obscurity or contradiction of the arbitral award, or declare about any omitted point which should have been mentioned by the decision.
12.11 – The Tribunal shall decide, within ten days, by amending the arbitral award and notifying the parties.
13 – Effectiveness of the Arbitral Award
13.1 –The arbitral award produces, between the parties and their successors, the same effects of the decision pronounced by the Judiciary Power and, if condemnatory, it constitutes a document valid to commence an execution process.
14 – Costs
14.1 – The costs and the expenses of the arbitration, and the Arbitrators’ retaining fees and expenses shall be fixed by the Center.
15 – Confidentiality
15.1 – Unless otherwise agreed by the parties, or required by law applicable to the parties, the members of the Tribunal and the Center shall keep confidential all matters relating to the arbitration, except those that have, per chance, already become public domain or those that have, by any other means, already been divulged.
15.2 – The Center may publicize the arbitral award, if previously authorized by the parties or, if differently, the Center may, in any way, divulge excerpts from the award, provided that the identity of the parties is preserved.
16 – Final Considerations
16.1 – The Internal Regulation shall rule over the applicable norms and special proceedings, organization and the functioning of the entity. The Regulation shall always be considered an integrant and complementary part of this instrument.
16.2 – The alterations to these Rules shall be made in compliance with the conditions established in the By-Laws of the Center
16.3 – The payment of the costs and retaining fees related to the arbitration shall be carried in compliance with the statute of costs. The parties answer solidarily for the retaining fees and costs before the entity, even though, they can agree, among themselves, with formulas to be responsible for said costs. The present Rules becomes effective on the date of their deposit before the Center.
16.4 – The Center and the Tribunal shall not be liable for any fact, act or omission of any nature related to the arbitration, unless in case of malice or bad-faith.
- O que é conciliação?
- O que é negociação?
- O que é mediação?
- O que é arbitragem?
- Quais são as vantagens da Arbitragem?
- Quem decide a controvérsia por arbitragem?
- Como deve ser a atuação do árbitro?
- Qual a lei que dispõe sobre arbitragem?
- Antes desta lei já era possível utilizar a arbitragem?
- O que pode ser resolvido por arbitragem?
