Arbitration rule of the arbitration and mediation chamber of the Instituto de Engenharia
The Mediation and Arbitration CHAMBER of the Instituto de Engenharia (herein “CHAMBER”), has the mission to administrate arbitration procedures, with the objective of settlement of disputes, involving available patrimonial rights, in a domestic or international scope.
The CHAMBER does not settle the disputes that are the object of the request by means of arbitration. It is in charge of the administration and follow-up of the adequate development of the arbitration procedure, indicating and nominating arbitrator(s) when not established in any other form by the parties.
The present Arbitration Rule (herein “Rule”) shall rule the arbitration under its auspices, except for alteration previously agreed by the parties, which shall only apply to the specific case. The utilization of arbitration rules of other arbitration institutions shall not be allowed.
In case any of the parties, in the preliminary phase of the installation of arbitration case, raises doubts about the existence, validity or scope of the arbitration’s convention, the Executive Officer of the CHAMBER may determine that the arbitration procedure be carried on, if he understands prima facie, that there is an arbitration agreement. In this case, the decision in relation to the Arbitration Court shall be in charge of its members after being constituted.
The parties, upon electing the rules of the CHAMBER, are obliged to enforce and follow this Rule and the Cost Chart of the CHAMBER, recognizing that the arbitration sentence shall be definite, binding and enforced spontaneously, in the established period.
The request of an arbitration motion shall be done through the filing of the Arbitration Request (herein “Request”) to the CHAMBER, indicating the object of the litigation, a succinct description of the dispute, the estimated value, name, address and complete qualification of the other party involved, attaching copy of the due contract or document that contains the arbitration convention and other pertaining documents, and may also, indicate the arbitrator stating his/her name and qualification.
Upon the filing of the Request, the Initiating Party (Complainant) shall pay the registration fee, according to the Cost Chart of the CHAMBER. Payment of the referred fee constitutes a condition for processing the Request.
After this, the Secretary of the CHAMBER shall send the Complainant a copy of the Request and of the documents received, together with the Rule and the list of arbitrators who are part of the Body of Arbitrators of CMA – IE (CHAMBER of Mediation and Arbitration of the Instituto de Engenharia), inviting the Respondent to indicate an arbitrator within 15 (fifteen) calendar days.
In case the Complainant has not indicated an arbitrator in the Request, the Secretary of the CHAMBER shall require this to be done within 15 (fifteen) calendar days.
The parties may establish that the arbitration shall be conducted by a sole arbitrator, and shall indicate the arbitrator within 15 (fifteen) calendar days.
All the references of this Rule to the Arbitration Court shall apply to the arbitrations conducted by a sole arbitrator.
THE PARTIES AND THEIR LEGAL REPRESENTATIVES OR PROXIES
The parties may be represented by proxies or legally constituted attorneys, in both cases with expressed power of attorney to sign the Term of Arbitration.
Unless provided otherwise, every communication shall be made to the proxy designated by the Parties and sent to the address indicated in the mandate instrument, as disposed in Article 8.
The constituted attorneys shall exercise full capacity and prerogatives assured to them by legislation and the by-laws of Brazilian Attorneys and Legal Bar, enforcing them to exert the mandate strictly observing the referred norms with highly ethical behavior.
The parties may indicate as arbitrators the members of the Body of Arbitrators of the CHAMBER, or other arbitrators. The President of the Arbitration Court shall be a member of the Body of Arbitrators of the CHAMBER.
The indicated arbitrator shall be interviewed by the CHAMBER, in order to inform in 5 (five) calendar days if he/she accepts the appointment, filling in and returning the questionnaire sent by the
An arbitrator cannot be nominated if he/she:
a) Is a party to the dispute;
b) Has intervened in the dispute as a representative of any of the parties, a witness or a professional expert;
c) Is a spouse to or relative within the third degree of any of the parties or their proxies;
d) Participates, or has participated in an institution directing or managing the company which is a party in the dispute or is a shareholder of this company;
e) Is an close friend or enemy of any of the parties or any of its proxies;
f) Has an interest, in any other way, directly or indirectly, in the judgment of the dispute in favor of any of the parties or has previously given his/her opinion, expressed him/herself about the dispute or counseled one of the parties;
g) Has acted as mediator, before the institution of the arbitration, unless otherwise provided by the parties.
In case any of the hypotheses referred to in the previous item occur, the arbitrator shall refuse his appointment or resign, even though he/she has been indicated by both parties, and shall be liable for any damage caused by non-compliance to this obligation.
Every arbitrator shall have the obligation to reveal any fact, event or circumstance to his/her knowledge that may appear to the parties as lack of independence and impartiality. Every arbitrator has the duty of being and remaining independent and impartial during all the arbitration procedures.
The arbitrators nominated by the parties shall indicate by agreement, in 15 (fifteen) calendar days, the arbitrator who shall be the President of the Arbitration Court, complying with the above items.
The period for the appointment of arbitrators or a sole arbitrator by the parties may be delayed for an equal period by the Chief Executive Officer of the CHAMBER, upon request of the interested party.
In the absence of appointment of an arbitrator in the stipulated period, and if no agreement has been reached in relation to the sole arbitrator or the President of the Arbitration Court, the appointment and nomination shall be made by the Chief Executive Officer of the CHAMBER, among the arbitrators who are members of the Body of Arbitrators.
In case of multiple-party arbitration, i.e., when there are several complainant parties and/or respondent parties, each party shall agree upon the appointment of an arbitrator, complying with this article. In the absence of agreement, it is the responsibility of the Chief Executive Officer of the CHAMBER to nominate all the members of the Arbitration Court.
The nominated arbitrators shall sign the Oath of Office in a 5 (five) calendar day period, and after this, shall convoke the parties for a hearing when the Term of Arbitration shall be signed.
REFUSAL CLAIM OF AN ARBITRATOR
The party interested in claiming the refusal or disqualifying an arbitrator, due to lack of independence or any other reason, shall do this in 10 (ten) calendar days from the acknowledgment of the appointment or from the moment when the facts, events or circumstances leading to this manifestation, were known, and presenting the party’s explanation and respective support of evidence.
The appointed arbitrator shall be summoned to give his/her opinion, within 5 (five) calendar days, and the party who appointed him/her may give their opinion within 5 (five) calendar days after the contested arbitrator has given his/her opinion. After this, the Chief Executive Officer of the CHAMBER shall nominate three members of the Body of Arbitrators of the CHAMBER, who shall participate in a Committee in charge of analyzing the issue, executing a final decision supported by reasons, within 10 (ten) calendar days.
In case the decision of the Committee rejects the contestation, the appointed arbitrator shall be nominated, and, if the contestation is accepted, the party shall appoint another arbitrator, complying with Article 4.
An arbitrator shall be substituted when he/she resigns, has his/her contestation accepted, dies and is made impracticable for the performance of the function or when all parties thus require this to occur.
The Chief Executive Officer of the CHAMBER may substitute the arbitrator who does not comply with the established time schedules and norms of this Rule and other related ones, or that has no conditions to exert the functions to which he/she was nominated.
In case of substitution of an arbitrator, it is the responsibility of the party who appointed him/her to proceed to a new designation, within 15 (fifteen) calendar days of the substitution.
It is up to the substitute arbitrator to repeat the evidence already brought forth.
TERM OF ARBITRATION
Previous to the session designated for the execution of the Term of Arbitration (herein “TDA”), the CHAMBER Secretary shall send a draft copy of this instrument to the parties, so that they elaborate it together, or individually fill in the specified blanks referring to the summary of their respective claims and petitions as well as a contingent counter-claim. The stipulations of each party in the TDA do not represent the recognition of the petitions or of the counter-claim formulated by the other party. The TDA shall be finished together with the Arbitral Court during the session designated for the execution and shall contain, apart from the specifications desired by the parties:
a) name and qualification of the parties, as well as their respective proxies, if they exist;
b) name and qualification of the arbitrators and the designation of the arbitrator that shall act as President of the Arbitration Court;
c) the issue object of the dispute, and, if possible, the required amount;
d) headquarters and language of the arbitration, the applicable legal norms and, if this is the case, authorization for the Arbitration Court to decide on grounds of equity;
e) the responsibility for the payment of the costs, expenses and fees of the arbitrators;
f) the time period to make the arbitration award.
The term granted for the presentation of the initial statement of the matter of the dispute shall be established by the parties in the TDA, not being inferior to 10 (ten) calendar days.
The TDA shall be executed by the parties and by the arbitrators, as well as two witnesses. The absence of signature of any of the parties in the TDA shall not impede the normal procedure of the arbitration. In the session for execution of the TDA, the Arbitration Court and the parties may establish a provisory schedule to conduct the procedures.
COMMUNICATION, TERMS/SCHEDULES, AND DOCUMENTS DELIVERY
All communication may be done by e-mail, fax or courier service and delivered at the address indicated by the parties, and subsequently confirmed by certified mail receipt, unless provided otherwise in the TDA.
All concerns of the parties shall be done in written form, and the presentation and copy of documents is allowed. All documents shall be presented in a sufficient number of copies so that each party, arbitrator and the CHAMBER receives one copy, apart from the acknowledgement receipt copy.
The terms shall be calculated as calendar days, excluding the starting day and including the due day. The terms start on the first subsequent working day. A term is considered delayed until the first working day if the due date occurs on weekends or holidays.
The terms of this Rule shall be suspended during the period of holiday leave of the CHAMBER.
The Arbitration Court shall decide upon its own competence, including any objections relative to the existence, efficaciousness or validity of the arbitration convention.
The party who intends to argue against the above mentioned issues or whether the dispute is subject to arbitration shall declare this in the TDA. The Arbitration Court shall stipulate the term considered appropriate for the parties to bring forth their opinion, and draw a decision about its competence.
Within 5 (five) subsequent days of the receipt of the initial statement of the matter in dispute of the parties, the CMA –IE shall submit the respective copies to the arbitrators and the parties, and these, within 15 (fifteen) days, shall present the respective answers.
At the end of the term for the presentation of the answers, the Arbitration Court shall examine the possible preliminary issues and shall evaluate the stage of the proceedings, designating, if this is the case, a preliminary hearing to determine whether the evidence is sufficient.
The parties may present all evidence they consider useful at the preliminary hearing to clarify the Arbitration Court, taking into consideration that the Arbitration Court is in charge of declaring the petition admissible, since it is recipient of the evidence brought forth. The parties shall also present all evidence requested by the Arbitration Court in order to understand and resolve the dispute. The presentation order for pieces of evidence shall be defined by the Arbitration Court.
The Arbitration Court shall conduct the arbitration in an appropriate manner, considering informality, flexibility, oral speech, savings, and speed issues, as well as observing the principles of an adversarial process, of equity among the parties – “audiatur et altera pars”.
In order to conduct the arbitration proceedings, the Arbitration Court may meet at any location if it is considered appropriate for consultations among its members, for the hearing of witnesses, of experts and the parties, as well to examine any properties or documents.
The Arbitration Court, during the course of the arbitration, shall communicate by means of the
If it understands it is necessary to hold a preliminary hearing, the Arbitration Court shall convoke the parties, within a minimum period of 10 (ten) days.
The procedure shall be carried on by default of any of the parties, if this one, duly notified, does not show up or obtain postponement of the hearing. The Arbitration Award cannot, under any circumstances, be made solely upon the default of one of the parties.
The Arbitration Court, if the circumstances justify, may determine the suspension or the postponement of the hearing. The suspension or the postponement shall be obligatory if required by any of the parties, and a date for it to be held or continued shall be designated as soon as possible.
The Arbitration Court may issue coercive or protective measures and, when necessary, shall require support from the competent legal authority for the execution of the referred measure. If the Arbitration Court is not yet installed, the parties may require such measures to the competent legal authority. This procedure shall not represent resigning to arbitration.
At the end of the preliminary hearing, the Arbitration Court shall establish the term, not less than 10 (ten) days, so that the parties offer their final statements of the matter in dispute, and may be substituted due to oral speech in hearings, if it is convenient to the parties.
In case there is a counterclaim formulated by the Respondent, and in time for the initial claims, clarifying the nature and circumstances of the dispute that generated the counterclaim, the indication of the object of the claim and the estimated amount of the claim.
The Respondent shall pay the complement of the costs referring to the counterclaim, according to Cost Chart, within 10 (ten) days.
In case of a counterclaim request, the parties shall have 30 (thirty) calendar days, to present the answer, and the established in article 9 is not applicable.
The Arbitration Court shall make the award within 60 (sixty) days, from the presentation of the final allegations. Such term may be extended for an equal period by the Chief Executive Officer of the
The Arbitration Award shall be made by the majority of votes, and each arbitrator, including the president, has one vote. In the absence of a majority agreement, the vote of the President of the Arbitration Court shall prevail.
The Arbitration Award shall be made in written form and signed by all the arbitrators and sent to the CHAMBER. The signature of the majority enforces its validity and efficaciousness. It is the responsibility of the President of the Arbitration Court to certify the absence or divergence of signatures of the Arbitration Award by the arbitrators.
The Arbitration Award shall contain:
a) the report, with the name of the parties and a summary of the dispute;
b) the pleas of fact and law of the decision, expressly mentioning, if the arbitrators judged on grounds of equity;
c) a clause in which the arbitrators shall resolve the issues submitted to them and shall establish the term for the enforcement of the award, if this is the case;
d) the date and location of the arbitration award;
e) the stipulation of the fees and procedural expenses, as well as the respective apportionment, according to the TDA.
The CHAMBER shall convoke the parties to receive the Arbitration Award at the Secretary at a designated day and time, and may also send the Arbitration Award by mail or in form established in Article 8.
The Arbitration Court shall draw up the Arbitration Award ratified by agreement, if during the arbitration procedures the parties decide to end the dispute by means of an amicable agreement. The established in this article shall be observed.
REQUEST FOR CLARIFICATION
When the Arbitration Award is made, the arbitration has finished. The Arbitration Court on its own or by request of one of the parties, within 5 (five) days of the acknowledgement of the Arbitration Award, may clarify obscure, absent or contradictory aspects, or correct any material error, of 8
calculations or spelling, or any similar errors verified in the Arbitration Award. The Arbitration Court may also complement the Arbitration Award, in case any aspect has been omitted.
The Arbitration Court shall draw up a decision in relation to the request for clarification, within 10 (ten) days.
Arbitration costs include the fees and expenses of the arbitrators and the administrative costs of the CHAMBER established in the Costs Chart entered into force at the start of the arbitration procedure, as well as the fees and expenses of any experts nominated by the Arbitration Court and the expenses occurred due to measures of inquiry performed during the taking of evidence.
All expenses inciding and incurring during the arbitration shall be paid by the party that required the measure, or equally, by the parties, if occurring from measures determined by the Arbitration Court.
PERIOD OF EFFECTIVENESS
The present Rule, approved by the Executive Board of Directors in Deliberative Meeting no.1.400 at the Instituto de Engenharia, held on July 2, 2007, with entry into force on the same date, remaining as such for undetermined term, in replacement of the Rule approved on July 26, 1999, in its Deliberative Meeting no. 1.294.
Unless otherwise provided by the parties, the CHAMBER Rule in force on date of the presentation of the Arbitration Request shall be applicable.
GENERAL AND FINAL PROVISIONS
The Arbitration Court shall be in charge of the interpretation and enforcement of the present Rule to the specific cases, including existing procedural gaps, in all that concerns its powers and obligations. In case the Arbitration Court is not constituted, the Chief Executive of the CHAMBER shall decide about possible doubts or gaps in this Rule.
The CHAMBER, its members and employees, are not responsible before any person due to any facts, acts or omissions related to the arbitration.
The members of the CHAMBER, the arbitrators and the parties are prohibited of disclosing any information they had access to due to the occupation or the participation in an arbitration procedure.
The Secretary of the CHAMBER may supply certified copies of documents referring to the arbitration procedures upon written request of any of the parties.
The Arbitration Court may determine the parties to offer warranties to assure the payment of expenses in arbitration and possible condemnation in order to guarantee the execution of the Arbitration Award.
The Arbitration Court shall adopt applicable measures in order to protect commercial or industrial secrets and other confidential information.
The CHAMBER, for scientific purposes, may reproduce excerpts from the Arbitration Award in jurisprudential repertoire, preserving and omitting the identity of the parties.
No arbitration demand shall proceed without previous payments determined according to the Cost Chart. In case one of the parties does not pay the amount determined, the arbitration shall only proceed if the other party pays the referred complement amount.
In case of counterclaim, if the Respondent does not pay the due amounts as established in the Cost Chart, the Arbitration Court may determine the exclusion of the counterclaim motion from the arbitration, without prejudice to the party in renovating the plea in the arbitration request on its own account.
In arbitrations involving international contracts the parties shall be in charge of choosing the applicable legislation to the merit of the dispute and the language of the arbitration. If no consensus is reached in due time, the Arbitration Court shall indicate the rules considered appropriate, as well as the language, taking into account the stipulated in the contract, usage and customs and international trading rules. The arbitrators may only decide on grounds of equity if they are authorized by the parties.
After the installation of the arbitration, the arbitrators or the Arbitration Court (all their members in consensus) at any time, but before making their Arbitration Award, if they consider it convenient, may recommend the parties to use the services of a mediator belonging to the Body of Mediators of the CHAMBER, so that this mediator may try to reach together with the parties a possible solution which meets the interests of all parties.
Such recommendation may or may not be accepted by the parties, and any hypothesis of interfering in the judgment of the arbitrator or of the Arbitration Court is prohibited, in case the parties do not accept it.