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Starting an arbitration proceeding
What is needed to commence arbitration?
Subject to the parties’ agreement or the rules of the relevant arbitration institution, the party that wishes to commence arbitration should notify the other party, by any means of communication, of its intent to commence proceedings. If a party refuses to submit a dispute to arbitration, the other party may request the court to order it to sign a term submitting the dispute to arbitration and appoint an arbitrator to decide the dispute, if required. The proceedings are considered to have commenced once the arbitrators have accepted their appointments.
Are there any limitation periods for the commencement of arbitration?
The Arbitration Act prescribes no limitation periods for the commencement of arbitration. However, according to the Code of Civil Procedure, if a pre-arbitration injunction request is filed before a court, a notice of arbitration must be filed within 30 days of the date on which the injunction is granted; otherwise, the court will dismiss the injunction proceedings.
In addition, the statute of limitations rules apply just as they would in judicial proceedings.
Are there any procedural rules that arbitrators must follow?
The parties are free to agree on the procedural rules applicable to the arbitration or to refer to the rules of an arbitration institution. Generally, arbitration proceedings seated in Brazil are conducted under the procedural rules of an arbitration institution. If no rules have been agreed between the parties, the arbitrators may determine the applicable procedural rules, which must observe the principles of due process and equal treatment of the parties.
Are dissenting opinions permitted under the law of your jurisdiction?
The Arbitration Act expressly allows the arbitrators to issue a separate dissenting opinion.
Can local courts intervene in proceedings?
Local courts can intervene, upon the request of a party, by granting interim measures prior to the constitution of the tribunal. In addition, the arbitral tribunal may issue an arbitral letter to a local court requesting it to perform or determine the performance of a given act.
It is important to emphasise that once the arbitration has been instituted, the arbitrators have the power to maintain, modify or revoke the precautionary or emergency measure granted by the judiciary (Article 22-B of the Arbitration Act). Moreover, Article 260(3) of the new Code of Civil Procedure provides that the arbitral tribunal’s order (domestic or foreign) shall be enforced by the competent judicial authority, which shall not undertake an analysis of the merits of the arbitral tribunal’s order.
Can the local courts assist in choosing arbitrators?
Local courts can appoint arbitrators if the arbitration agreement neither provides for a method of appointment nor refers to the rules of an arbitration institution. In addition, whenever the parties have chosen an even number of arbitrators and these arbitrators fail to appoint an additional arbitrator jointly, the parties may ask local courts to appoint the additional arbitrator.
What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can the courts compel parties to arbitrate? Can they issue subpoenas to third parties?
If an arbitration agreement is incomplete and a respondent fails to participate in the arbitration, a party may request the court that would be competent to hear the dispute to order the other party to sign the term of submission to arbitration. Moreover, the Arbitration Act expressly authorises the tribunal to issue an award despite the refusal of a party to participate in the proceedings.
The court can provide evidentiary assistance upon request by the tribunal. For example, if a third party refuses to be a witness in the arbitration, the tribunal may request the court to compel the appearance of the defaulting witness upon demonstrating the existence of an arbitration agreement.
In what instances can third parties be bound by an arbitration agreement or award?
The Arbitration Act does not regulate the effects of arbitration agreements on third parties and the Brazilian courts have not ruled consistently on whether third parties can be bound by arbitration agreements. In general, Brazilian doctrine indicates that the inclusion of third parties in an arbitration proceeding violates the voluntary nature of arbitration and the principle of party autonomy. Nevertheless, some Brazilian courts have extended arbitration agreements to a non-signatory in exceptional circumstances. For example, in Trelleborg v Anel the Sao Paulo Court of Appeals found that the active involvement of a parent company in the negotiations and its interest in the outcome of the proceedings required its participation. In addition, in Chaval v Liebherr the Superior Court of Justice upheld a decision of the Rio de Janeiro Court of Appeals extending the effects of an arbitration agreement to a party to another contract, on the grounds that the contracts were intertwined and should be interpreted as a whole.
Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?
In general, Brazilian law does not specify a default language or seat of arbitration. If the parties have not agreed on the seat, the court will decide this in a judicial proceeding to complete the arbitration agreement.
The language of the arbitration will be decided by the tribunal. However, arbitrations involving public entities that have entered into general concession agreements or public-private partnerships must be conducted in the Brazilian territory and in the Portuguese language, as established by the Concession Law (Law 8,987/1995) and the Public-Private Partnership Law (Law 11,079/2004).
How is evidence obtained by the tribunal?
The Arbitration Act allows the tribunal to hear the testimony of parties and witnesses, request expert opinions and gather any “other evidence deemed necessary”, upon the request of a party or on its own initiative. Evidence is obtained at the discretion of the tribunal, but always in accordance with the procedural rules agreed by the parties, if any. For example, the parties may refer to the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration in the arbitration agreement.
This notwithstanding, arbitrators and counsel often adopt a civil law approach to the gathering of evidence, meaning that document production is fairly limited and a party needs to seek the permission of the tribunal for each question that it intends to ask a witness when conducting cross-examinations.
What kinds of evidence are acceptable?
The tribunal can hear the testimony of parties and witnesses, request expert opinions and gather any “other evidence deemed necessary”.
Is confidentiality ensured?
The Arbitration Act contains no specific rules on confidentiality. However, the parties may include confidentiality rules in the arbitration agreement and most arbitration institutions include such rules.
Article 189 of the new Code of Civil Procedure provides that judicial proceedings concerning arbitration shall be confidential, provided that the parties prove the confidentiality of the arbitration.
Can information in arbitral proceedings be disclosed in subsequent proceedings?
The use of information obtained in arbitration proceedings is not prohibited as a general matter (unless otherwise agreed by the parties or stipulated in the applicable institutional rules).
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
The Arbitration Act contains no ethical standards, apart from requiring the impartiality and independence of arbitrators. The rules of most arbitration institutions commonly chosen by the parties include guidelines on ethical issues, such as conflicts of interest. Tribunals may also follow the International Bar Association Guidelines on Party Representation in International Arbitration, if the parties so agree. Further, Article 77 of the Ethical Code of the Brazilian Order of Lawyers provides that all of the ethical code provisions apply to lawyers acting in arbitration proceedings.
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