Arbitration Regulations CAESP
CAESP’s – Conselho Arbitral do Estado de São Paulo (Arbitration Council of the State of São Paulo’s) Regulations
I – Preliminary Provisions
1. According to its Statutes, it is hereby established that:
a) These Regulations include and incorporate the general principles of Law, of the Federal Constitution, as well as of Federal Law nr. 9.307/96, with the addition only of the provisions herein;
b) The parties undertake from now on to submit, whenever requested to do so by CAESP, any documents relating to the procedure;
c) CAESP’s Arbitration Regulations is totally known and accepted by the parties;
d) These regulations may be altered, in that the valid version will be the one in force at the time of signature of the Arbitration Agreement.
2. CAESP has three management bodies, all having a consulting authority: the Executive Board of Directors, the Technical Committee and the Ethics Committee.
3. In cases not foreseen in these regulations, the committee in charge will make all necessary decisions for the progress of the procedure;
4. The social and statutory purposes of CAESP comprehend, among other things, the operational management of Mediation and Arbitration procedures, including the planning, direction, control and organization, ensuring the correct progress of the procedures according to the provisions hereof;
5. By accepting these Regulations, the parties, regardless of the procedure confidentiality, authorize CAESP to denounce to the competent body any violation to the provisions contained in the Arbitration Award;
6. Any conflict relating to property rights available may be the object of an arbitration-mediated resolution, the parties involved being therefore bound to these Regulations.
II – Establishment of the Arbitration Procedure
7. Each arbitration procedure is usually performed according to the following steps:
a) A Request for Arbitration followed by the pertinent documents;
b) Document analysis by CAESP;
c) Establishment of the procedure;
d) Nomination of the arbitrator;
e) Consent by the arbitrator of his/her nomination;
f) Notice to the Solicited Party;
g) Expressed or tacit consent by the parties of the arbitrator nominated by CAESP and other arbitrators, in the case of a Court;
h) Sending of documents by the Solicited Party;
i) Preliminary Hearing for the Signing of the Arbitration Agreement (APATer);
j) Conciliation hearing;
k) Fact-finding process;
g) Arbitration award.
8. Arbitration procedures managed by CAESP shall be conducted by 1 (one) or more arbitrators, always in an odd number, as provided for in an arbitration clause or agreement between the parties.
9. The Request for Arbitration must contain:
a) the full name and qualification of the parties;
b) an indication of the existence of an arbitration clause.
Sole paragraph: In case the arbitration clause does not contain the nomination of CAESP as the body in charge for settling disputes, the parties shall agree in writing that the procedure is to be conducted according to these regulations;
c) a brief description of the dispute, including the amounts pleaded;
d) a proposition about the number of arbitrators to work in the procedure in case this is not clearly mentioned in the arbitration clause;
e) in case of an Arbitration Court, please indicated the arbitrator(s) of your choice, with full qualification;
f) the full name and qualification of the lawyers or attorneys who will represent the requesting party, including the power of attorney with specific powers, also to execute the arbitration commitment;
g) the proof of payment of the procedural costs;
h) other documents necessary for the establishment of the arbitration procedure.
10. After the Request for Arbitration has been signed and sent, CAESP shall analyze the documents submitted and approve or not the establishment of the arbitration procedure.
III – The Procedure
11. All notices and communications foreseen herein shall be made in writing and delivered at the address of the parties or of their attorneys, as well as to the arbitrator(s). These notices or communications can be sent by registered mail or with acknowledgment of receipt, or by electronic mail with a read receipt.
12. All documents registered at CAESP shall be submitted in a number of copies equivalent to the number of parties and arbitrators, in addition to a copy exclusively for the secretary.
13. Once the establishment of an arbitration procedure is approved by CAESP, it will nominate the arbitrator.
Paragraph One: If they want, the parties might, in common agreement, nominate an arbitrator of their choice and trust.
Paragraph Two: In the case of a Court of Arbitration, the arbitrator nominated by the institution shall be the Chairman and the other arbitrators shall be nominated by the parties, unless otherwise provided for in an arbitration clause.
Paragraph Three: in case the arbitration clause does not specify the number of arbitrators and the parties disagree about this issue, the arbitrator nominated by CAESP shall be the one to decide about this matter.
14. The arbitrator shall have 5 (five) calendar days as of the date of his/her nomination to expressly accept or refuse their participation in the arbitration procedure.
15. Once the nomination is accepted by the arbitrator, CAESP shall, concomitantly:
a) inform the requesting party, who shall have 5 (five) days as of the notice given by CAESP to express their opinion about the arbitrator’s nomination;
b) send a notice of the establishment of the arbitration procedure to the requested party, along with the copy of notice, as well as the nomination of the arbitrator, and the requested party shall then have 5 (days) days to express their opinion about the nomination of the arbitrator.
16. If the parties do not express their opinion about the nomination of the arbitrator, after the period of 5 (five) days the arbitrator shall be automatically appointed.
17. CAESP shall send the notice of the arbitration procedure establishment to the opposing party up to 3 (three) consecutive times.
18. After 30 (thirty) days from the date the first notice has been sent, if the attempt to notify the requested party has been unfruitful, the Request for Arbitration shall be filed.
19. In the case of a justified negative answer from either party about the arbitrator nomination made by CAESP, new deadlines shall be started for the nomination of a new arbitrator.
20. The requested party shall have up to 5 (five) days after receiving the notice to:
a) present any impediment to the establishment of the arbitration procedure;
b) express their opinion about the number of arbitrators proposed in the request made by the requesting party ;
c) in the case of an Arbitration Court, nominate the arbitrator of their choice, with full qualification.
21. CAESP shall designate the date of the Preliminary Hearing for the Signing of the Arbitration Agreement, and shall notify both parties. This notice shall contain: the venue, date and time of the Preliminary Hearing for the Signing of the Arbitration Agreement, the name of the parties, the number of the arbitration procedure, the name of the arbitrator(s), and other procedural information that might be necessary.
22. The formalization of the participation of the arbitrator(s) shall be made in the Preliminary Hearing for the Signing of the Arbitration Agreement by means of the signing of the Statement of Independence or a similar text, and the Arbitration Agreement shall be signed by the parties.
23. On the same meeting, the arbitrator(s) shall designate a new hearing that will have the purpose of an attempt for conciliation. In case they consider it pertinent, the arbitrator may offer the attempt for conciliation in the Preliminary Hearing for the Signing of the Arbitration Agreement.
24. In the Preliminary Hearing for the Signing of the Arbitration Agreement, the arbitrator, together with the parties, shall establish the schedule of deadlines for reply, replication, rejoinder, examinations, orders and other procedural acts.
25. In case there is an opposed request, the requirements of the initial request for establishment of the arbitration procedure shall be complied to. The opposed request shall be submitted in a separate document, following the same ritual, costs and deadlines as provided for herein.
Sole paragraph: In case there is an opposed request, the arbitrator(s), shall be the same as the one(s) nominated and accepted by the parties in the beginning of the arbitration procedure already in place.
26. If requested by the parties, or by a written notice, the arbitrator(s) might extend the deadlines.
27. Requests for re-designation of hearings shall be made up to 48 (forty-eight) business hours before the date previously scheduled.
28. By request of the parties, the arbitrator(s) might determine writs of prevention, coercive measures or preliminary processes that might be necessary during the course of the arbitration procedure. These measures shall comply with the requirements of the arbitration award.
29. The arbitrator(s) shall be the one(s) to decide about the submission of evidence requested by the parties or to determine the performance of the evidence they consider plausible.
30. The arbitrator(s) might, at any time, request the oral arguments of the parties without the presence of their lawyers, as well as the oral arguments of the lawyers without the presence of the parties.
31. The parties shall be notified by mail sent with acknowledgment of receipt, e-mails with read receipt or by any other means determined by the parties in the Arbitration Agreement.
32. The arbitration procedure shall proceed in default of the party when:
Paragraph One: the receipt of the notice of arbitration procedure establishment has been proven at the requested party’s address and the requested party fails to express themselves.
Paragraph Two: during the procedural steps of the arbitration procedure, either party fails to appear in the other procedural acts.
33. In case the arbitrator(s) determine so, at any time, third parties can be admitted to the procedure.
Sole Paragraph: the third party may not nominate arbitrators and shall participate in the procedure at the stage it is at the time.
34. The arbitrator(s) might, at any time, suggest to the parties to submit themselves to mediation session(s) in order to cooperate for the good progress of the arbitration procedure.
Sole Paragraph: the mediation sessions shall be charged separately according to the schedule of fees in force.
IV –Arbitration Agreement
35. The Arbitration Agreement shall be signed by the parties on the date of the Preliminary Hearing for the Signing of the Arbitration Agreement and shall mandatorily contain the provisions of article 10 of Law 9.307/96, and might contain the provisions of article 11 of the same law, in addition to the items below:
a) statement by the requesting party undertaking and being primarily liable for the payment of the procedural costs;
b) statement by the parties undertaking and being liable for the payment of all pertinent expenses, such as with arbitrator, additional arbitrators in the case of an Arbitration Court, experts, technical assistants, secretary, etc;
c) statement by the requesting party undertaking and being liable for the payment of additional costs and hearings, and the requesting party might be reimbursed of such costs by the other party in case the arbitration award determines so;
d) any changes in the arbitration procedure agreed between the parties and
e) any other information that the parties or the arbitrator(s) might consider pertinent.
36. The parties shall sign the Arbitration Agreement in the presence and along with the arbitrator(s) and witnesses.
V – Terms
37. When counting the deadlines, the day of the notice is excluded, and the term shall start on the first business day following the notice and including the expiration date.
38. In case CAESP’s offices are not in business on the expiration date, the deadline shall be extended to the following day in which the Chamber resumes its activities.
39. The administrative and procedural acts performed by CAESP shall take place preferably during the period of 5 (five) calendar days, and this period can be longer or shorter according to the Chamber’s needs.
40. The periods of time foreseen in these regulations shall not run during the collective vacation time of CAESP, being therefore interrupted on the last day of operation of the institution and resumed on the day of its reopening.
VI – Arbitrators
41. An arbitrator can be any person who is able, having a flawless reputation, knowledge about the matter of the dispute, technical skills to solve conflicts. This person must also be trusted by the parties and might not have any impediment under the terms of these regulations, as well as under the terms of the legislation in force.
42. The arbitrator(s) chosen shall sign the Statement of Independence, thus guaranteeing that they shall remain independence from the parties in litigation and that they will perform their duty with unquestionable impartiality, Independence, competence, diligence, discretion and confidentiality.
43. In the procedures in which the arbitrator has been nominated by CAESP, the parties might:
a) Accept them;
b) Veto them, expressing their opinion in writing, either through a manifestation in the records, by e-mail or in any other expressed way, within the period stated herein, giving explanations for their refusal to accept the arbitrator. The reasons for the impeachment of the arbitrator by one or both parties shall be submitted to an appraisal by the arbitrator him/herself and/or by the Executive Board of Directors.
44. If, during the proceedings, both parties request it, or if it is requested by a written notice, the single arbitrator might admit or request for the composition of an Arbitration Court, and each party may then nominate an equal number of arbitrators, either these arbitrators are accredited by CAESP or not. The chairmanship of the Court shall only and always be given to the arbitrator who is conducting the procedure from the beginning.
45. The arbitrator(s) might appoint technical assistant(s) with the purpose of helping them, due to the complexity of the procedure. The payment of this/these professional(s) shall be split between the parties.
46. The accreditation of arbitrators must be done exclusively by the Executive Board of Directors of CAESP and candidates are required to have skills in the matter to be arbitrated, and must have appropriate knowledge of the applicable legal provisions.
VII –Impediments for Arbitrators:
47. A person may not act as an arbitrator if they have any impediment or if they are under suspicion of bias as per the provisions below.
48. The suspicion of bias of an arbitrator shall be based, among other assumptions, on the following circumstances:
a) if they are a close friend of either party or the party’s administrators, agents, partners, shareholders or quota holders;
b) if they are a direct creditor or debtor of either party or if they have a spouse or a family member in straight or collateral line, up to the third degree, who is a creditor or debtor of either party;
c) if they are an apparent heir, a donor, an employer or an employee of either party;
d) if they have a mediate or immediate interest in the judgment of the dispute in favor of either party and/or of third parties related thereto;
e) if they have acted as a mediator or conciliator of either party in the pre-dispute, unless the party expressly determine the contrary.
VIII – Replacement of Arbitrators:
49. The arbitrator might be replaced at CAESP’s option or upon the request of both parties, in case there is doubt as to the technical, ethical or legal commitment of the accredited person.
50. The arbitrator that hinders the speed of the procedure might be replaced by decision of CAESP’s Executive Board, upon previous consultation to the parties.
51. In case any of the reasons for impediment or replacement occurs, the arbitrator shall be responsible for refusing their nomination or for renouncing at any time, upon the occurrence of the awareness of the fact that prevents them from continuing their function, and this shall be done through the sending of a notice in writing to CAESP.
52. In case any arbitrator does not accept their appointment, CAESP or the party who nominated the arbitrator shall be responsible for a new nomination within 48 (forty-eight) business hours from the arbitrator’s refusal.
53. If the impeachment is well grounded and accepted, both the parties and CAESP shall have 5 (five) days to appoint new arbitrator(s).
54. In case, during the course of the procedure, there is death or disability of the arbitrator(s), their replacement shall occur within 5 (five) days from the date such fact is known.
IX – Evidence
55. It is up to the arbitrator(s) to defer or not the evidence produced by the parties, and they might also determine the production of other evidence that they consider necessary.
X – Hearings
56. The Preliminary Hearing for the Signing of the Arbitration Agreement shall have the purpose of the signing of the Arbitration Agreement, as well as the determination of procedural deadlines.
57. The arbitrator(s) might, at their discretion, determine as many additional hearings as they consider necessary.
XI – Writs of prevention, coercive measures or preliminary processes
58. Upon request of the parties, or at the sole discretion, the arbitrator(s) might determine writs of prevention, coercive measures or preliminary processes.
59. If there is urgency and the arbitrator(s) have not yet been appointed, the parties might request for writs of prevention, coercive measures or preliminary processes to the competent judiciary authority. In this case, the party must immediately inform CAESP of their request. As soon as the arbitrator(s) are appointed, they must acknowledge the measure pronounced by the judicial authority.
XII – Arbitration Award
60. The arbitration award pronounced is final, and the parties shall therefore be bound to comply with it in the form and within the deadline consigned as of the knowledge of its terms.
61. In the case of Arbitration Court, the arbitration award shall be pronounced by a majority of votes, in that each arbitrator shall be entitled to 1 (one) vote, and the Chairman shall have the tie-breaking vote.
62. The arbitration award shall contain the provisions of articles 26, 27 and 28 of Law 9.307/96, and other legal provisions that relate to it.
63. The parties shall be notified of the arbitration award through a copy of the award and shall have 5 (five) days after receiving it to express themselves, according to the provisions of article 30 of Law 9.307/96.
64. The arbitrator(s) shall decide within 10 (ten) days about the matters discussed, and shall amend the award, in whole or in part, if the case may be.
65. The arbitrators(s) might pronounce partial decisions or incident decisions raised during the arbitration procedure. These decisions may be final in relation to the matter they deal with or they can be subject to ratification in the arbitration award.
66. Partial decisions pronounced by the arbitrator(s) shall comply to the format and the requirements of the arbitration award.
XIII – Confidentiality:
67. The arbitration procedure is confidential, and it is forbidden for all members of CAESP, the arbitrators, the parties, the experts and any other people that might be involved to disclose information relating to the procedure, except upon a written authorization of all the parties.
XIV – Procedural Costs, Expenses, Despesas, Rates and Fees
68. CAESP shall make available, through is website or by any other means, its schedule of costs, expenses, rates and fees, informing how and when payments shall be made.
69. The value of the initial costs is bases on the value of the lawsuit, with a minimum rate charged according to the schedule of costs in force.
70. The regular progress of the arbitration procedure shall be bound to the settlement of all payments due to CAESP.
71. Procedures rated at a net value shall not be accepted.
72. After the Request for Arbitration or the opposed request has been submitted, the costs shall be automatically due and might be reimbursed only in case the establishment of the arbitration procedure is not accepted by CAESP. In this case, the administration fee shall be deducted according to the schedule of costs in force.
73. If the procedure is made unfeasible before the signing of the Arbitration Agreement, only the fees that have been paid to the arbitrators shall be reimbursed.
74. The arbitrators’ fees and expenses shall be paid by the parties to CAESP, and each arbitrator shall be paid per hour of work. The value shall be determined by the schedule in force and must be paid in advance, a minimum of 2 (two) hours when there is a single arbitrator and 10 (ten) or 50 (fifty) hours, depending of the value of the lawsuit, for each arbitrator in case there is an Arbitration Court.
Paragraph One: The payment of the minimum hours of the arbitrator(s) shall be made up to 24 (twenty-four) hours prior to the Preliminary Hearing for the Signing of the Arbitration Agreement.
75. CAESP shall give the amount received to the arbitrators within 5 (five) days as of the submittal of an invoice or receipt by the arbitrators.
76. The arbitrator’s fees and expenses, in the case of a single arbitrator, shall be paid initially by the requesting party, but part of the amounts paid might be reimbursed by the requested party, in the course of the arbitration procedure, unless otherwise provided in the Arbitration Agreement or otherwise established in the arbitration award.
77. The arbitrators’ fees and expenses, in the case of an Arbitration Court, shall be paid as follows: each party shall fully pay the costs of the arbitrators they have nominated, and both parties shall pay, in the proportion of 50% to each one, the costs for the Chairman of the Arbitration Court, unless otherwise provided in the Arbitration Agreement.
78. The arbitrators(s) shall submit to CAESP monthly reports of activities with the number of hours worked.
Sole Paragraph: CAESP might, at the discretion of the Executive Board of Directors, make changes in the report of hours provided by the arbitrator(s).
79. The payment of expenses with the displacement of arbitrators shall be made as follows:
a) In the case of overnight stay: transportation, accommodation, meals and other expenses relating to the work outside of the place of residence paid by the parties according to the schedule of costs in force;
b) In case of displacement without overnight stay: hours in itinere, to be paid by the parties according to the schedule of costs in force.
c) The value of the per diems and hours in itinere excludes air ticket fees. The amount spent with this item shall be presented by the arbitrator(s) to CAESP so that it can request the reimbursement to the parties and pay the expenses back to the arbitrator(s).
80. The initial costs, as well as other administrative expenses relating to the arbitration procedure shall be the responsibility of the requesting party.
Paragraph One: The arbitration award may determine the division of the initial costs between both parties, and on this occasion the requested party will have to reimburse the requesting party the amount spent, according to the proportion determined by the arbitrator.
Paragraph Two: The other costs due to CAESP and incurred during the procedure shall be paid according to the conditions agreed between the parties in the Arbitration Agreement.
Paragraph Three: In case the Arbitration Agreement does not foresee how the costs due to CAESP during the course of the procedure shall be divided, the expenses shall be borne by the requesting party, who might later be paid back part of the sum at the amount determined by the arbitrator(s) in the arbitration award.
81. The arbitrator(s) might allot the costs of the procedure between the parties equally or unequally in case of partial provenance of the request.
82. Once the Request for Arbitration Procedure is sent, the requesting party shall have up to 48 (forty-eight) hours from the date of sending to make the payment of the costs, and the payment shall be confirmed by email, fax or submittal of the original receipts to CAESP.
83. The initial costs of the arbitration procedure shall be accrued of additional costs relative to the following cases:
a) the amount pronounced and/or agreed being above the initial value of the lawsuit;
d) displacements of arbitrator(s);
e) hearings and/or meetings in addition to the first one.
Paragraph One: The payment of expenses relating to additional meetings and/or hearings shall be made up to 48 (forty-eight) hours before the meeting or hearing takes place;
f) delivery by motorcycle service;
i) mechanical stenography;
l) other cases unforeseen herein, as long as they are previously discussed with the arbitrator(s) and the Executive Board of Directors.
Paragraph Two: to ensure the good progress of the procedure, expenses relating to items c, d (when there is a single arbitrator), f, g, h, i, j, k and l shall be due by the requesting party, who might later be reimbursed by the other party, at the end of the procedure, if so decided by the arbitrator.
84. In the case of an opposed request, new procedural costs shall be paid, according to the schedule of costs in force.
XV – Final Provisions
85. For the good of the arbitration process and respecting the laws in force, the Executive Board of Directors, having heard, if appropriate, the other Councils, may make exceptions, complete and/or amend any article of these Regulations, and might also solve the cases or aspects that have been omitted.
86. CAESP shall not be responsible for the format or for the content of the arbitration award.