Part 2 Specific Issues of Arbitration in Brazil, 6 Conservatory and Interim Measures

International Arbitration: Law and Practice in Brazil ◽

10.1093/law/9780198840114.003.0006 ◽

2020 ◽

Author(s):

Kobayashi Patrícia Shiguemi

Keyword(s):

Legal Framework ◽

Civil Procedure ◽

Coercive Power ◽

Arbitral Tribunal ◽

National Courts ◽

Procedure Code ◽

Interim Measure ◽

Interim Measures

This chapter addresses conservatory and interim measures. Not differently from other jurisdictions, the Brazilian legal framework up until the Brazilian Arbitration Law (BAL) was enacted in 1996 did not grant arbitrators powers to issue conservatory and interim measures. The prohibition derived from the perception that provisional relief sought by the parties required a coercive power that arbitral tribunals lacked by the very nature of their jurisdiction. With the development of Arbitration and a better understanding of the method, the BAL of 1996 was enacted, and it revoked the abovementioned limitation imposed to arbitral tribunals in the Civil Procedure Code (CPC). In 2015, the BAL was revised, and articles 22-A, 22-B, and 22-C included express provisions on (i) the possibility of requesting conservatory and urgent measures to national courts before the constitution of the arbitral tribunal; (ii) the arbitral tribunal's powers to grant such measures after its constitution; (iii) arbitral tribunal's powers to uphold, amend, or revoke an interim measure granted by national courts; and (iv) the cooperation between national courts and arbitral tribunals in case of non-compliance in the course of the proceedings. It is therefore a system comprised of the non-concurrent competence between national courts and arbitrators.

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Emergency Arbitration: Mere Innovation or Vast Improvement

Arbitration International ◽

10.1093/arbint/aiz021 ◽

2019 ◽

Vol 35 (4) ◽

pp. 441-472

Author(s):

Rania Alnaber

Keyword(s):

New York ◽

Arbitral Tribunal ◽

Commercial Arbitration ◽

National Courts ◽

Investment Arbitration ◽

The Future ◽

New York Convention ◽

Interim Measures ◽

Specific Concern

Abstract Effectiveness of emergency arbitration is a disputable question, which was touched by several commentators since it was first introduced in 2006. Concerns have been raised in relation to the enforceability of emergency reliefs under the New York Convention and the risk of concurrent jurisdiction between emergency arbitrators and national courts in granting interim measures prior to the constitution of the arbitral tribunal. A more specific concern is related to the suitability of introducing this mechanism, to investment arbitration. This article argues that adopting an international instrument for enforcing emergency reliefs will be the best solution. As for investment arbitration, emergency arbitrators are no less important in this type of arbitration than in commercial arbitration. However, certain features of emergency arbitration shall be tailored to meet the distinct nature of investment cases. Although certain amendments are needed to enhance the effectiveness of this relatively new mechanism, the future of emergency arbitrator is still optimistic. Therefore, to avoid any duplication of fora, courts are expected to respect emergency arbitrator's jurisdiction and only intervene when the latter is not capable of granting a relief.

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7 Role of National Courts during the Proceedings

10.1093/law/9780198714248.003.0007 ◽

2015 ◽

Author(s):

Blackaby Nigel ◽

Partasides Constantine ◽

Redfern Alan ◽

Hunter Martin

Keyword(s):

National Court ◽

Status Quo ◽

Arbitral Tribunal ◽

Judicial Control ◽

National Courts ◽

The Status ◽

Model Law ◽

Interim Measures

This chapter examines the role that national courts play at the beginning, during, and end of arbitration proceedings. Arbitration is dependent on the support of the courts, which alone have the power to intercede when one party seeks to sabotage proceedings. This intervention may be possible at the beginning of the arbitral process in the context of the enforcement of the arbitration agreement, the establishment of the tribunal, and challenges to jurisdiction. National courts may also intervene during proceedings: it may be necessary for the arbitral tribunal or a national court to issue orders intended to preserve evidence, to protect assets, or in some other way to maintain the status quo pending the outcome of the arbitration. Under the UNCITRAL Rules and Model Law, such orders are called ‘interim measures’. The chapter also describes how national courts exercise judicial control over the resulting award.

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Arbitral Jurisdiction

The Oxford Handbook of International Arbitration ◽

10.1093/law/9780198796190.003.0003 ◽

2020 ◽

pp. 69-102

Author(s):

Alex Mills

Keyword(s):

New York ◽

Legal Framework ◽

Arbitral Tribunal ◽

Arbitral Award ◽

National Courts ◽

Basic Source ◽

New York Convention

This chapter examines the concept and source of arbitral jurisdiction. In the context of arbitration, the term ‘jurisdiction’ typically refers to the ‘power’ or ‘authority’ of the arbitral tribunal to decide a dispute. A decision about whether a tribunal has jurisdiction will frequently be made by the tribunal itself, but that decision is not and cannot be a source of its jurisdiction, and cannot be a definitive determination of that jurisdiction, because the authority of that decision depends on the very question under review. A degree of deference may be given to the tribunal’s determination of these questions by national courts, but self-evidently a tribunal may not confer authority on itself. Thus, the ‘power’ of a tribunal comes more indirectly from two sources. First, the cooperation of national courts, which may readily recognize and enforce arbitral awards and may also act in support of arbitration in various other ways. Second, the potential reputational consequences of non-compliance with an arbitral award, which may lead a party to comply with it voluntarily. The legal framework for arbitration applied by most national courts is set out in the New York Convention 1958, and this remains a key basic source of the standards which are applied to determine when an arbitral tribunal is considered to have jurisdiction.

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Part 2 Specific Issues of Arbitration in Brazil, 3 Consolidation of Arbitration by the Brazilian Courts: STF and STJ

International Arbitration: Law and Practice in Brazil ◽

10.1093/law/9780198840114.003.0003 ◽

2020 ◽

Author(s):

Cueva Ministro Ricardo Villas Bôas

Keyword(s):

Public Policy ◽

Dispute Resolution ◽

Case Law ◽

Legal Framework ◽

Civil Procedure ◽

Commercial Arbitration ◽

Procedure Code ◽

New Public ◽

Alternative Means ◽

Federal Supreme

This chapter traces the evolution of case law regarding arbitration in Brazil. Before the enactment of the Brazilian Arbitration Law (BAL), arbitration was not taken seriously in Brazil because the applicable norms of the Civil Code and of the Civil Procedure Code created mounting obstacles, which prevented commercial arbitration from flourishing. The new statute of 1996 changed this completely and introduced an arbitration friendly legal framework. In 2001, the Federal Supreme Court (STF) upheld the constitutionality of the BAL. From then on, the Superior Tribunal of Justice (STJ), the court of third instance, has played a key role in defining clear and predictable rules about arbitration. The success of arbitration in Brazil has had a significant impact on the reform of the Civil Procedure Code, which was enacted in 2015. The new Code embraced arbitration as central part of a new public policy directed to the promotion of alternative means of dispute resolution and the fostering of a multi-door courtroom system. The increasing relevance of arbitration for the resolution of business disputes in Brazil might also explain the adoption of a system of mandatory pre-trial hearing purported to stimulate the parties to use mediation and/or conciliation to solve their conflict.

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Emergency Arbitration

10.1093/law/9780198831051.001.0001 ◽

2021 ◽

Author(s):

Sim Cameron

Keyword(s):

Arbitral Tribunal ◽

National Courts ◽

Investment Treaty ◽

The Future ◽

Interim Measures ◽

Emergency Measures ◽

Investment Treaty Arbitration

Emergency arbitration enables a party to seek urgent relief from an emergency arbitrator during the period required for the constitution of an arbitral tribunal. The procedure is not a substitute for expedited or summary proceedings. It simply enables a party to bypass national courts and obtain pre-tribunal relief in the form of interim measures even before an arbitral tribunal has been formed. The limited mandate of the emergency arbitrator is to determine whether the circumstances warrant urgent relief within the period required for tribunal formation. Studies have revealed that emergency arbitrators have adopted inconsistent approaches to emergency arbitration proceedings. Parties contemplating emergency arbitration are thus faced with uncertainty both as to procedure and prospects, and a lack of clarity as to how to formulate an application for emergency measures. By identifying commonalities between emergency arbitration rules, this book aims to promote greater uniformity in the practice of emergency arbitration, thereby giving parties greater control and certainty in bringing and defending applications for emergency measures. As emergency arbitration rules confer wide discretion on the emergency arbitrator, this uniformity is promoted whilst at the same time recognising, where appropriate, the need for an element of flexibility to be maintained. The book contains seven parts. Part I sets out an overview of emergency arbitration. Parts II to V move through all phases of an emergency arbitration, starting with pre-commencement considerations and ending with enforcement. Part VI is dedicated to emergency arbitration in investment treaty arbitration. Finally, in Part VII, the future of emergency arbitration is explored.

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KETIKA TERMOHON MENOLAK TERLIBAT DALAM PERSIDANGAN ARBITRASE

TANJUNGPURA LAW JOURNAL ◽

10.26418/tlj.v3i2.37514 ◽

2020 ◽

Vol 3 (2) ◽

pp. 126

Author(s):

Garuda Wiko

Keyword(s):

Quality Assurance ◽

Legal Framework ◽

Civil Procedure ◽

Trial Process ◽

Procedure Code ◽

Arbitration Process ◽

Made In

Although arbitration has been made based on the agreement of the parties and stated in writing in the Main Contract, this does not guarantee that the parties will immediately be willing to participate in the arbitration process when a dispute occurs. It is possible that one of the arbitration parties was absent and was not willing to be involved in the trial process. In very rare circumstances, the arbitration applicant may cancel / deny his participation in the trial process. This article will describe the regulations, practices and expert views in the implementation of the arbitration proceedings without the presence of the respondent. It is expected that from this research, an overview will be obtained in carrying out the arbitration proceedings without the applicant. The findings obtained are that there are no extensive guidelines in Indonesia that can be used as a guide by the arbitrators in carrying out such a trial process, especially related to proof and examination of cases. Some of the principles and regulations set out in the Civil Procedure Code may be adopted to answer some things that are not regulated in the arbitration legal framework in Indonesia. Efforts should be made to develop a guideline framework for arbitrators so that there are similarities and quality assurance of decisions made in the trial process without the presence of the respondent.Meskipun arbitrase telah dibuat berdasarkan kesepakatan para pihak dan dicantumkan secara tertulis di dalam Kontrak Utamanya, hal ini tidak menjamin bahwa para pihak akan serta merta bersedia untuk berpartisipasi dalam proses arbitrase ketika suatu sengketa terjadi. Ada kemungkinan salah satu pihak arbitrase mangkir dan tidak bersedia terlibat dalam proses persidangan. Dalam kondisi yang sangat jarang, termohon arbitrase dapat membatalkan/mengingkari keikutsertaannya dalam proses persidangan. Artikel ini akan mendeskripsikan regulasi, praktik dan pandangan ahli dalam pelaksanaan proses persidangan arbitrase yang dilakukan tanpa kehadiran termohon. Diharapkan dari penulisan ini didapatkan gambaran terkait proses persidangan arbitrase tanpa pihak termohon. Penemuan yang didapat adalah belum ada pedoman yang ekstensif di Indonesia yang dapat dijadikan pedoman oleh arbiter dalam menjalankan proses persidangan seperti itu terutama terkait dengan pembuktian dan pemeriksaan perkara. Beberapa prinsip dan peraturan yang diatur dalam Hukum Acara Perdata mungkin dapat diadopsi untuk menjawab beberapa hal yang tidak diatur di dalam kerangka hukum arbitrase di Indonesia. Perlu adanya upaya untuk mengembangkan suatu kerangka pedoman bagi para arbiter agar terdapat kesamaan dan penjaminan kualitas terhadap putusan-putusan yang dibuat dalam proses persidangan tanpa kehadiran termohon.

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