ARBITRATION LAW OF BRAZIL
The Brazilian Law of Arbitration is governed by the "Brazil- LAW N0 9.307 of 23 September 1996". The law deals with the arbitration agreement, Appointment of arbitrators, procedure of arbitration, passing or Arbitration award.
The arbitration means settling of civil disputes by the contracting parties by submitting the settlement of their disputes to an arbitral tribunal by virtue of an arbitration agreement, which may be in the form of either an arbitration clause or a submission to arbitration (acte de compromis). However, the basis of the arbitration is either arbitration agreement or a clause in the contract to refer the future disputes to arbitration.
The procedure of arbitration begins with the notice to the opposite party to a contract followed by the appointment of arbitrators, filing of counter claim, placing of evidences and witnesses, hearing and ends with an Arbitral award for execution.
However, the arbitral procedure shall comply with the procedure agreed upon by the parties in the arbitration agreement, which may refer to the rules of an arbitral institution or specialized entity, it being possible for the parties to empower the sole arbitrator or the arbitral tribunal to regulate the procedure.
The principles of adversary proceeding, equal treatment of the parties, impartiality of the arbitrator and freedom of decision, shall always be respected.
The parties may be represented by legal counsel, and may always be free to choose their representative or assistant at the arbitral procedure.
Sending notice to the other party by the disputing party
When there some dispute arises between the two contracting parties the disputing party sends a notice to the other party invokes the Arbitration clause in the contract or the arbitration agreement for submitting the dispute to an independent arbitrator or body of independent arbitrators.
Appointment of arbitrator
Any legally capable individual, trusted by the parties, may act as an arbitrator. The parties shall appoint one or more arbitrators, always in an odd number, being also able to appoint their respective alternates.
The parties may, by mutual agreement, define the rules for the appointment of arbitrators, or adopt the rules of an arbitral institution or specialized entity.
If the parties appoint an even number of arbitrators, the latter are authorized immediately to nominate another arbitrator. In case of disagreement thereon, the parties shall request the State Court originally competent to decide the case, to appoint such arbitrator.
If several arbitrators are appointed, these will select, by majority vote, the President of the Arbitral Tribunal. Failing consensus, the eldest member shall become the President.
In performing his duty, the arbitrator shall behave in an impartial, independent, competent, diligent and discreet manner.
Filing of Claim Statement
Once when the arbitrator or arbitrators are appointed the disputing party who initiated the proceeding by sending a notice files a claim statement to the arbitrator or body of arbitrators.
Filing of Counter claim/reply
The other party shall file a reply to the claim or his counter claim within a reasonable time determined by the arbitrator or arbitrators.
The arbitrator or the arbitral tribunal may take the parties' deposition, hear witnesses and determine the production of expertises and other evidence deemed necessary, either ex officio or at the parties' request.
Depositions by parties and witnesses shall be taken at places, dates and hours previously communicated in writing to the parties, and a summary record thereof shall be signed by the deponent or at his request, also by the arbitrators.
If a party fails, without just cause, to comply with a request to render a personal deposition, the arbitrator or the arbitral tribunal shall give due consideration to such behaviour when issuing the award.
The arbitral award
The arbitral award shall be made within the time limit stipulated by the parties. If no express stipulation is made thereon, the award shall be made within six months from the date of the commencement of the arbitral proceedings, or from the date of the substitution of an arbitrator.
The decision of the sole arbitrator or of the arbitrators shall be made in writing. If there are several arbitrators, decisions shall be taken by majority vote. Failing majority consent, the opinion of the President of the tribunal shall prevail..
An arbitral award is null and void if:
- the submission to arbitration is null and void;
- it is made by a person who could not be an arbitrator;
- it does not comply with the requirements of Article 26 of this Law;
- it has exceeded the limits of the arbitration agreement;
- it does not decide the whole dispute submitted to the arbitration;
it has been duly proved that it was made through unfaithfulness, extortion or corruption;
COST AND EXPENSES
The arbitral award shall decide on the parties' responsibility regarding the costs and expenses of the arbitration, as well as on any amounts resulting from bad faith litigation, as the case may be, with due respect to the stipulations of the arbitration agreement, if any