The Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (CAM-CCBC), which is the largest Brazilian arbitration institution, has recently enacted two resolutions implementing significant developments: Resolution 44/2020 on emergency arbitrators and Resolution 46/2021 on expedited procedure.
Emergency Arbitrator
According to Resolution 44, the emergency arbitrator is available to parties subject to arbitration agreements entered into after November 25, 2020 on an “opt-out” basis (i.e, applicable unless the parties jointly agree otherwise). For arbitration agreements entered into before November 25, 2020, the emergency arbitrator is an “opt-in” (the parties should jointly choose it).
The request shall be addressed to the president of CAM-CCBC, who shall assess whether such procedure is applicable and, if it is, shall appoint the emergency arbitrator, who, within 2 days, shall present a statement of independence and availability. Then the parties will have 2 days to challenge the emergency arbitrator, if it is the case.
In principle, the emergency arbitrator will have 15 days to issue the decision, counted from the presentation of a statement of independence. The emergency arbitrator could also issue a provisory timeline with a different timeline. The emergency arbitrator will have wide discretion to conduct the procedure, provided that the principles of full defence and equal treatment of the parties are observed. A hearing could be conducted through telephone or video-conference.
The decision of the emergency arbitrator shall be in writing and contain the reasoning therefor. The emergency arbitrator cannot act as arbitrator in the same arbitral proceeding.
In principle, the emergency arbitrator proceeding will cost R$75,000 for the emergency arbitrator’s fees and R$20,000 for CAM-CCBC’s fees. The parties shall also advance R$5,000 to cover costs. CAM-CCBC can increase or reduce the fees in view of the nature and complexity of the work.
Expedited Procedure
Resolution 46/2021 established a expedited procedure applicable to CAM-CCBC’s arbitrations based on arbitral agreements entered into before January, 2021 and whose value at stake is lower than R$3 Million.
Unless otherwise agreed by the parties, the expedited procedure will be conducted by a sole arbitrator, who could limit the number and size of submissions, as well as to decide on documents only. Hearings will be preferably held remotely.
The arbitral award shall be issued within 10 (ten) months, counted from the signature of the terms of reference until closing of the proceeding. The arbitral award shall be issued within 30 days from closing of the proceedings, extendable for additional 30 days.
The expedited procedure will be subject to cheaper CAM-CCBC’s and arbitrator’s fees, which could be verified at the web-site https://ccbc.org.br/cam-ccbc-centro-arbitragem-mediacao/en/arbitration/table-of-expenses-2019/
Conclusion
CAM-CCBC is following the trend of international institutions, such as ICC, to foster the use of emergency arbitrators and to establish simpler and cheaper procedures for lower value arbitrations. This is an important step to tackle the main concerns from arbitration-users, which are time and cost of the procedure. We expect that other Brazilian institution will follow the example and issue new regulations on emergency arbitrators and fast-track procedures.
