Interim Arbitrator Proceedings

Resolution N^o 4/2018
Interim Arbitrator Proceeding

The President of the Ciesp/Fiesp Chamber of Conciliation, Mediation and Arbitration ("Chamber"), acting within his powers as per item 4(f) of the Internal Regulation of the Chamber;^[1].

Considering the wording of articles 22-A and 22-B ^[2] of Law No. 9,307 of 1996 (“Arbitration Act”) included by Law No. 13,129 of 2015, and item 13 ^[3] of the Chamber’s Arbitration Rules (“Rules”);

Considering that, during the meeting held on December 3, 2018, of the Superior Council of the Chamber, the Councilors decided that item 13 of the Rules warranted further specification in order to allow for the institution of interim arbitration panels, composed by a sole arbitrator, with the aim of ordering urgent measures before the institution of the Arbitral Tribunal;

Bearing in mind the comments made during the meeting of the Superior Council and the suggestions then presented; Resolves to adopt this resolution, which regulates the interim arbitrator proceeding in the following terms:

ARTICLE 1 - INTERIM ARBITRATOR REQUEST

1.1. Before the commencement of arbitration, as per item 2.4 of the Rules, the party seeking interim or urgent measures may request to the President of the Chamber, through a Request for Interim Arbitrator (“Request”) to appoint an interim arbitrator (“Interim Arbitrator”), who shall decide upon the urgent measure requested and whose order shall remain in force until the Arbitral Tribunal decides upon the matter.

1.1.1. The Request shall include:

1. The name, qualification, addresses and, if known, the e-mail addresses or any other contact information relating to the parties and their counsel;
2. Report of the circumstances giving rise to the Request and a description of the subject-matter of the dispute relating to the main dispute;
3. Description of the urgent measure requested;
4. The reasons why the party requesting such measure believes that it cannot await the institution of the Arbitral Tribunal in order to obtain said interim or urgent measures;
5. The reasons that justify granting the interim or urgent measure;
6. The relevant documents and, especially, the arbitration agreements;
7. Comments on the language, the place where the arbitral award shall be rendered (place of the Interim Arbitration) and about the applicable law;
8. Proof of the full payment of the costs and fees relating to the Interim Arbitrator;
9. Request for arbitration filed in connection with the dispute with regards to which the party requests an interim or urgent measure and its exhibits, if applicable;
10. Any information or document that the requesting party considers useful for the analysis of the Request.

1.1.2. The number of counterparts and the filing method will follow the provisions of the Rules.

1.2. Unless the arbitration agreement provides otherwise, the parties may request the appointment of an Interim Arbitrator if one of the parties is interested.

1.3. The Chamber shall conduct a preliminary examination of the admissibility of the Request. Based on the information included in the Request, the Chamber may proceed with or terminate the proceedings, sending notice to the parties of this decision.

ARTICLE 2 - APPOINTMENT OF THE INTERIM ARBITRATOR

2.1. The President of the Chamber shall appoint an Interim Arbitrator as soon as possible, usually within 2 (two) days counted from the filing of the Request, and shall preferably select a member of the Chamber’s List of Arbitrators.

2.2. The Interim Arbitrator shall receive copies of the case file and shall complete the Questionnaire for the Analysis of Conflict of Interest and Availability (“Questionnaire”) and shall execute the Statement of Independence, copies of which will be sent to the parties by the Chamber. The interim arbitrator shall execute both documents within 2 (two) days counted from the receipt of the appointment.

2.3. The party who intends to challenge the Interim Arbitrator shall file the respective submission with the Chamber within 2 (two) days counted from the receipt of the notice of appointment or from the date in which it became (or should have become) aware of the circumstances giving rise to the challenge. The filing of a challenge suspends the Interim Arbitrator Proceedings and the matter shall be decided by the President of the Chamber.

2.4. The Interim Arbitrator shall remain impartial and indepentend from the parties in dispute and shall not act as arbitrator in the main arbitration proceeding relating to the Request.

2.5. The President of the Chamber may, upon request of a party, decide upon the removal of the Interim Arbitrator should he or she fail to timely fulfill its attributions or if he or she fails to abide by the Rules.

ARTICLE 3 - PROCEEDINGS

3.1. The Interim Arbitrator shall decide the interim or urgent measure after hearing the opposing party. The urgent measure can be rendered ex parte if deemed indispensable to ensure its effectiveness, and the arbitrator shall immediately notify the opposing party about the contents of the decision.

3.2. The decision of the Interim Arbitrator shall take the form of a procedural order and shall be rendered within 10 (ten) consecutive days counted from the receipt, by the Interim Arbitrator, of the parties’ comments about the Questionnaire and the Statement of Independence, or if the time period provided for in article 2.3 of this Resolution elapses without submissions from the parties. The time period to render the order may be extended by the President of the Chamber upon reasoned request by the Interim Arbitrator, or with the parties’ consent.

3.3. The orders rendered by the Interim Arbitrator shall state their reasons, shall be presented in writing and shall observe the requirements of item 15.4 of the Rules. The Interim Arbitrator may provide for the conditions he or she deems necessary in order to ensure the fulfillment of the order, whether imposing daily penalties or requiring the posting of guarantees.

3.4. Once the jurisdiction of the Interim Arbitrator terminates, the Arbitral Tribunal shall decide upon any request from the parties in connection with the Interim Arbitrator proceeding, including any demand in connection with the decision rendered by the Interim Arbitrator and also as regards the allocation of costs enticed by the Interim Arbitrator proceeding.

3.5. The order of the Interim Arbitrator shall be binding upon the parties, which shall immediately comply.

3.5.1. When the arbitration commences as per the Rules, the Arbitral Tribunal shall be competent to maintain, modify or revoke the interim or urgent measures rendered by the Interim Arbitrator.

ARTICLE 4 - COSTS

4.1. The costs of the Interim Arbitrator proceeding include:

1. The administration fee of the Chamber amounting to R$ 15,000.00 (fifteen thousand reais);
2. Interim Arbitrator’s fees amounting to R$ 60,000.00 (sixty thousand reais); and
3. Expenses fund amounting to R$ 5,000.00 (five thousand reais);

4.2. The requesting party shall advance the costs of the Interim Arbitrator Proceeding as it submits its Request.

4.2.1. The Chamber may notify the requesting party to complement the expenses fund at any time.

4.3. The costs in connection with the Interim Arbitrator proceeding shall be advanced by the requesting party. When the order is rendered, the Interim Arbitrator may allocate the costs between the parties, including the costs mentioned in article 4.1 of this Resolution as well as other expenses included by the parties during the Interim Arbitrator proceeding, without prejudice to the powers of the Arbitral Tribunal to finally rule on the allocation of such costs.

4.4. Upon a reasoned request submitted by the Interim Arbitrator, or if he or she deems appropriate, the President of the Chamber may increase or reduce the costs relating to the Interim Arbitrator proceeding, in view of the complexity of the case and of the amount of work carried out.

4.4.1. Whenever a challenge to the Interim Arbitrator is accepted or the Interim Arbitrator is removed as provided for in article 2.5 of this Resolution, the Interim Arbitrator’s fees shall be fixed by the President of the Chamber.

ARTICLE 5 - GENERAL PROVISIONS

5.1. The provisions of the Arbitration Rules shall apply to the extent that they do not conflict with this Resolution, especially considering the expedited and urgent character of these proceedings.

This resolution enters into force as of January 7, 2019, and shall not affect the special provisions agreed upon by the parties in each particular case.

Sydney Sanches
President of Chamber Ciesp/Fiesp

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