Upon entering into an arbitration clause, the parties choose to submit to arbitration any conflicts arising from that contract, renouncing the resolution of the conflict via the Judiciary. However, before the institution of arbitration, by express legal provision, it would be up to the parties to resort to the Judiciary Branch to seek precautionary or urgent measures. In observance of this peculiarity, some arbitration regulations provide for the figure of the “emergency arbitrator”, allowing that, even before the establishment of arbitration, the requests for provisional protection are considered by the arbitration court.
Tolentino Advogados highlights the main provisions of the commercial arbitration regulations that regulate the role of emergency arbitrators:
- CAMARB – CORPORATE MEDIATION AND ARBITRATION CHAMBER – BRAZIL
Applicable to arbitration agreements entered into after 8/12/2019. Urgent, precautionary or anticipated reliefs may be required. The emergency arbitrator will be appointed by the president of CAMARB, from among the arbitrators that make up the list of arbitrators of the chamber, and may not act as arbitrator in arbitration relating to the conflict on which the application will be decided, unless authorized by the parties . The president of CAMARB will preliminarily analyze the application and will reject it in specific cases in which the role of emergency arbitrator is not appropriate. After preliminary analysis and confirmation of the appointment, the emergency arbitrator will decide the procedure to be adopted, guaranteeing respect for the full defense, the adversary system and equality in the treatment of the parties. The decision must be rendered within a maximum period of 15 days counting from the end of the period for challenging the arbitrator and measures may be established to comply with it. The decision will not bind the Arbitral Tribunal for the arbitration that must be instituted, which may reconsider the request, maintaining it, modifying it or revoking it, in whole or in part. If the filing of arbitration is not requested within 30 days, counting from the decision on the preliminary analysis, the president of CAMARB will determine the extinction of the request.
- B3 MARKET ARBITRATION CHAMBER
Applicable to arbitration agreements that have expressly adhered to the supporting arbitrator mechanism. The Parties may request urgent relief directly from the supporting arbitrator. The supporting arbitrator will be appointed by the president of the Market Chamber, from among the arbitrators that make up the Chamber’s body of arbitrators, and may not act as arbitrator in arbitration relating to the conflict on which the application will be decided. Upon manifestation by the Defendant, the supporting arbitrator will decide on the request for urgent relief within 48 hours. The Respondent’s hearing will not be necessary when it is essential to guarantee the effectiveness of the decision. The decision rendered by the supporting arbitrator may be maintained or reformulated by the Arbitral Tribunal, when constituted.
- CENTER FOR ARBITRATION AND MEDIATION OF THE BRAZIL-CANADA CHAMBER OF COMMERCE (CCBC)
Applicable to arbitration agreements entered into after 7/20/2018. For arbitration agreements entered into between 7/20/2018 and 11/25/2020, the Parties shall express an opinion on the application of the emergency arbitrator, any omission will prevent the use of the expedient. For arbitration agreements entered into after 11/25/2020, it is not necessary to expressly mention the application of the emergency arbitrator regulations. Urgent relief may be required. The emergency arbitrator will be appointed by the president of CAM-CCBC, from among the arbitrators who are part of the chamber’s body of arbitrators, and will not be able to act as arbitrator in arbitration relating to the conflict on which the application will be decided, unless so authorized by the parties. The president of CAM-CCBC will preliminarily analyze the application and will reject it in specific cases in which the role of emergency arbitrator is not appropriate. The emergency arbitrator shall conduct the procedure in the manner he deems appropriate, guaranteeing ample defense, adversary proceedings and equal treatment of the parties. The decision must be rendered within a maximum period of 15 days from the presentation of the Declaration of Independence by the arbitrator. The decision will not be binding on the Arbitral Tribunal for the arbitration to be instituted, which may modify, revoke or annul the decision. If the filing of arbitration related to the request is not requested within 15 days, counting from the receipt of the request by the president of CAM-CCBC, the president of CAM-CCBC will determine the extinction of the request.
- CHAMBER OF ARBITRATION AND MEDIATION OF THE FEDERATION OF INDUSTRIES OF THE STATE OF PARANÁ (CAM-FIEP)
The use of the emergency arbitrator in the arbitration agreement is not ruled out, the parties may resort to the emergency arbitrator or the Judiciary Branch to formulate urgent requests. The emergency arbitrator will be appointed by the CAM-FIEP president, from among the arbitrators who are part of the CAM-FIEP emergency arbitrator body, or from among those who are part of the CAM-FIEP list of arbitrators, provided they confirm their availability. The emergency arbitrator will be prevented from acting in the arbitration instituted to resolve the conflict related to the urgent request. After the appointment of the emergency arbitrator, the requested party will be notified to respond within 5 days, and the emergency arbitrator may request additional manifestations and evidence. The decision must be rendered within 10 days after the manifestation of the respondent and shall not bind the Arbitration Court to be instituted, which may revoke, annul, modify, supplement or render it null and void. . No request may be granted without giving the respondent the opportunity to express its opinion.
- INTERNATIONAL CHAMBER OF COMMERCE (ICC)
Applicable to arbitration agreements entered into after 1/1/2012. Urgent relief may be required. The emergency arbitrator will be appointed by the President of the ICC and may not act as an arbitrator in arbitration relating to the conflict on which the application will be decided. The emergency arbitrator will establish a procedural schedule so that the decision on the application is taken in the shortest possible time, acting in a fair and impartial manner, ensuring that each party is given the opportunity to present their case. The decision must be rendered within a maximum period of 15 days from the receipt of the records by the emergency arbitrator and will not be binding on the Arbitration Court that will be instituted, which may modify, revoke or annul the decision.
Our team is at your disposal for further clarification on the subject.
