Issuu on Google+

®

Dispute Resolution in 51 jurisdictions worldwide Contributing editor: Simon Bushell

2009 Published by Getting The Deal Through in association with: Advokatfirmaet Haavind AS Advokaturbüro Dr Dr Batliner & Dr Gasser Alves Pereira, Teixeira de Sousa & Associados Anderson Mo¯ri & Tomotsune Andreas Sofocleous & Co Araújo e Policastro Advogados Bianchi Rubino-Sammartano & Associati Bulboaca & Asociatii Charles Adams Ritchie & Duckworth Condon & Forsyth LLP Conway & Partners Dillon Eustace Dittmar & Indrenius ELIG, Attorneys-at-Law Fulbright & Jaworski LLP Gadens Lawyers Gleiss Lutz Herbert Smith Hiswara Bunjamin & Tandjung (in association with Herbert Smith) Hoet Peláez Castillo & Duque Abogados Hogan & Hartson LLP Isolas Jenner & Block LLP Kelemenis & Co Kleyr Grasso Associes Lenz & Staehelin Liedekerke Wolters Waelbroeck Kirkpatrick Mayora & Mayora, SC McGuireWoods Kazakhstan LLP Michael Shine, Tamir & Co Miller, Canfield, Paddock and Stone, PLC Monereo Meyer Marinel-lo Abogados Nordia Law Firm Odvetniki Šelih & partnerji Richards, Layton & Finger Schönherr Rechtsanwälte GmbH Smaliukas, Juodka, Beniušis & Partners Sofunde, Osakwe, Ogundipe & Belgore Sudath Perera Associates The Law Offices of Charles H Camp Vial y Palma Abogados Wardyn´ski & Partners Werksmans Incorporating Jan S de Villiers Woods LLP


contents ®

Introduction Simon Bushell Herbert Smith LLP

3

Australia Arthur Koumoukelis and Chris Kintis Gadens Lawyers

Dispute Resolution 2009 Contributing editor: Simon Bushell Herbert Smith LLP

4

Austria Gerold Zeiler and Wolfgang Höller Schönherr Rechtsanwälte GmbH

10

Belgium Joe Sepulchre, Hakim Boularbah and Fien Van Parys Liedekerke Wolters Waelbroeck Kirkpatrick

19

Brazil Sylvio Paes de Barros Jr and Alexandre Lins Morato Araújo e Policastro Advogados

30

Canada – Ontario James A Woods, Christopher L Richter, Pierre-Alexandre Viau and Rafal Jeglinski Woods LLP 35 Canada – Quebec James A Woods, Christopher L Richter, Marie-Louise Delisle and Annie-Claude Lafond Woods LLP

40

Business development manager Joseph Samuel

Cayman Islands Graham F Ritchie QC and David W Collier Charles Adams Ritchie & Duckworth

45

Chile Rodrigo Guzmán Karadima and Cristóbal Leighton Rengifo Vial y Palma Abogados

51

Marketing managers Alan Lee Dan Brennan George Ingledew Edward Perugia Robyn Hetherington Dan White Tamzin Mahmoud Elle Miller Marketing assistant Ellie Notley Subscriptions manager Nadine Radcliffe Subscriptions@ GettingTheDealThrough.com

China Graeme Johnston, Tang Hanjie and Han Yun Herbert Smith LLP

56

Cyprus Christina Antoniadou and Maria Violari Andreas Sofocleous & Co

61

Denmark Niels Schiersing Nordia Law Firm

66

England & Wales Simon Bushell and Stuart Paterson Herbert Smith LLP

73

Finland Markus Mattila Dittmar & Indrenius

80

France Denis Chemla Herbert Smith

86

Germany Stefan Rützel, Gerhard Wegen and Stephan Wilske Gleiss Lutz

92

Gibraltar Kerrin Drago, Jonathan Garcia, Samantha Grimes and Jamie Trinidad Isolas

100

Greece Athanassia Papantoniou and Yannis Kelemenis Kelemenis & Co

105

Guatemala Claudia Lucia Pereira Rivera Mayora & Mayora, SC

112

Assistant editor Adam Myers Editorial assistants Nick Drummond-Roe Charlotte North

Hong Kong Gareth Thomas Herbert Smith LLP

117

Senior production editor Jonathan Cowie Subeditors Jonathan Allen Kathryn Smuland Sara Davies Laura Zúñiga Ariana Frampton Sarah Dookhun Editor-in-chief Callum Campbell Publisher Richard Davey Dispute Resolution 2009 Published by Law Business Research Ltd 87 Lancaster Road London, W11 1QQ, UK Tel: +44 20 7908 1188 Fax: +44 20 7229 6910 © Law Business Research Ltd 2009 No photocopying: copyright licences do not apply. ISSN 1741-0630 The information provided in this publication is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer–client relationship. The publishers and authors accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of May 2009, be advised that this is a developing area.

Printed and distributed by Encompass Print Solutions Tel: 0870 897 3239

Law Business Research

Indonesia Charles Ball and Chalid Heyder Hiswara Bunjamin & Tandjung (in association with Herbert Smith) 124 Ireland John Doyle Dillon Eustace

128

Israel Joseph Tamir Michael Shine, Tamir & Co

134

Italy Mauro Rubino-Sammartano Bianchi Rubino-Sammartano & Associati

140

Japan Yasufumi Shiroyama and Naoki Iguchi Anderson Mo¯ri & Tomotsune

147

Kazakhstan Dinara Jarmukhanova McGuireWoods Kazakhstan LLP

152

Liechtenstein Johannes Gasser Advokaturbüro Dr Dr Batliner & Dr Gasser

158

Lithuania Andrius Smaliukas, Inga Martinkute', Vaida Pacenkaite', Kristina Matvejenkaite', Giedre' Gailiu¯te' and Mindaugas Rimkus Smaliukas, Juodka, Beniušis & Partners 165 Luxembourg Marc Kleyr, Michel Schwartz and Nicolas Chély Kleyr Grasso Associes

171

Netherlands Nathan O’Malley and Thabiso van den Bosch Conway & Partners

178

Nigeria Babajide Oladipo Ogundipe and Lateef Omoyemi Akangbe Sofunde, Osakwe, Ogundipe & Belgore

184

Norway Helge Kolrud Advokatfirmaet Haavind AS

189

Poland Katarzyna Petruczenko, Monika Hartung and Marcin Radwan-Röhrenschef Wardyn´ski & Partners

193

Portugal José Alves Pereira and João Marques de Almeida Alves Pereira, Teixeira de Sousa & Associados

200

Romania Valentin Berea and Alexandru Mocanescu Bulboaca & Asociatii

207

Russia Dmitry Kurochkin Herbert Smith CIS LLP

214

Slovenia Gregor Simoniti and Anže Ozimek Odvetniki Šelih & partnerji

220

South Africa Des Williams Werksmans Incorporating Jan S de Villiers

229

Spain Eva M Vázquez Pozón and César García de Quevedo Puerta Monereo Meyer Marinel-lo Abogados

236

Sri Lanka Sudath Perera, Ali Tyebkhan, Manoj Bandara and Dilushi Wickremasinghe Sudath Perera Associates 241 Switzerland Xavier Favre-Bulle and Alex Wittmann Lenz & Staehelin

247

Thailand Surapol Srangsomwong and Sui Lin Teoh Herbert Smith (Thailand) Limited

253

Turkey Hande Varhan ELIG, Attorneys-at-Law

258

Ukraine Charles H Camp and Svitlana Starosvit The Law Offices of Charles H Camp Volodymyr Shkilevych The Embassy of Ukraine

264

United Arab Emirates Craig Shepherd Herbert Smith LLP

271

United States – California Rod D Margo, Scott D Cunningham and Stephen M Rinka Condon & Forsyth LLP 278 United States – Delaware Samuel A Nolen, Robert W Whetzel and Chad M Shandler Richards, Layton & Finger 284 United States – Florida Daniel E González and Parker Thomson Hogan & Hartson LLP

290

United States – Illinois Lawrence S Schaner and Grace S Ho Jenner & Block LLP

296

United States – Michigan Frederick A Acomb and Mary K Griffith Miller, Canfield, Paddock and Stone, PLC

303

United States – Texas William D Wood, Kevin O’Gorman and Lance R Bremer Fulbright & Jaworski LLP

309

Venezuela Carlos Domínguez Hernández and Diego Thomás Castagnino Hoet Peláez Castillo & Duque Abogados

317

www.gettingthedealthrough.com


Brazil

Araújo e Policastro Advogados

Brazil Sylvio Paes de Barros Jr and Alexandre Lins Morato Araújo e Policastro Advogados

Litigation 1

4

Are there any pre-action considerations the parties should take into

Court system What is the structure of the civil court system?

The Brazilian judicial structure is composed of: • the Federal Supreme Court – the highest court of Brazil, guardian of the Constitution of the Republic; • the Superior Court of Justice – the guardian of the federal law and treaties, main court responsible for revision of decisions from the federal or state regional courts; • regional courts – responsible for the judgment of appeals filed against judges’ decisions, and for processing and judging some special cases defined by law; and • judges. The judicial system is composed of the common justice and the special justice. As regards special justice, there are the labour, electoral or military courts, the attributes of which are defined by the Constitution. It is necessary to distinguish the federal court from the common state court; the first examines cases in which the state is a party, whereas the second has jurisdiction over any other case.

account?

Before issuing proceedings a party has to provide substantial evidence. In cases where the evidence a party wishes to rely on is in danger of being dissipated, destroyed or otherwise jeopardised, the party may invoke provisional remedies to assure such evidence. 5

Judges and juries What is the role of the judge and the jury in civil proceedings?

In Brazil, civil actions are judged by judges, never by juries. Juries are only installed in criminal lawsuits and, even then, only if it is a case of felony crimes against life. Judges play an inquisitorial role in civil and criminal proceedings, using the best available mechanisms to obtain means of proof, to achieve understanding and to reach a final conclusion about the claim. 3

Limitation issues What are the time limits for bringing civil claims?

In accordance with the law, the time limit for filing claims depends on the subject matter involved. If the law does not set forth any other term, the general rule established in the Civil Code sets the limitation at 10 years. However, depending on the nature of the cause, the time limit may be shorter, such as in cases of civil reparation, in which it is three years. The limits are set by statute, meaning that they cannot be negotiated by the parties. However, once the proceedings are under way, the parties may request the suspension of the proceedings for six months in order to negotiate a settlement agreement.

30

Starting proceedings How are civil proceedings commenced?

The proceeding commences with the filing of a complaint in writing, indicating the name of the parties involved, the facts that gave origin to the dispute and the intended solution. The documents supporting the party’s allegations should be attached to the complaint. For bringing the claim, the claimant has to pay for the initial court fees represented by a percentage of the value claimed in the suit. If such a value does not exist, the claimant should estimate it. The claimant is not obliged to support the payment of the defence’s court fees. 6

2

Pre-action behaviour

Timetable What is the typical procedure and timetable for a civil claim?

A typical civil proceeding is known as an ordinary proceeding, comprising four phases, complying with the applicable legal proceeding: • initial phase (requests); • preparatory phase (solution of issues); • fact-finding phase; and • decision phase. The initial phase commences with the filing of a complaint in writing as mentioned above, together with the documents that give support to the claim. This phase includes the response from the respondents within a deadline of 15 days, in which they should file their defence together with the documents that evidence their allegations. In the second phase, the judge takes the main role and his or her objective is to correct any possible imperfections in the proceedings. If the demand involves only the discussion of matters of law and does not depend on other proof, the judgment of the suit may be accelerated. The law determines the holding of hearings in an attempt to reach a settlement agreement. If such agreement is not possible, the judge will order the continuation of the proceedings. In the third phase, there is preparation for the decision. The parties may have to produce proofs and final defences, in order to give convincing arguments for the court’s judgment.

Getting the Deal Through – Dispute Resolution 2009


Araújo e Policastro Advogados The last phase of the proceeding comprises the final hearing and the judge’s decision. It is worth remembering that there is no fixed time or term for the termination of the proceedings; although there are time limits for the filing of the defence or answers, the duration of the proceeding depends on the availability of the court. After the judgment, the parties may appeal to a higher court. It is not possible to determine the duration of the proceeding since it depends on the legal nature of the action, the type of the action and possible appeals filed by the parties. A civil claim may take from two to 10 years to reach a final decision.

Brazil 12 Interim remedies What interim remedies are available?

The civil court system provides for the attachment and seizure of assets. These legal remedies have the purpose of preserving the rights and assets in question until a final decision is made. Also, the parties may motion for the granting of other preliminary orders, if there is sufficient ground to believe that either party, before a decision is reached by the court, may cause irreparable damage to the other party. 13 Remedies What substantive remedies are available?

7

Case management Can the parties control the procedure and the timetable?

The parties do not have control over the procedure and the timetable of a civil claim as it cannot be negotiated by the parties. However, once the proceedings are under way, the parties may request the suspension of the proceeding for six months in order to negotiate a settlement agreement. 8

Evidence – documents Is there a duty to preserve documents and other evidence pending trial? Must parties share relevant documents (including those unhelpful to their case)?

Documents and evidence produced by the parties must be preserved in the proceedings. The parties are not required to share or submit documents contrary to their interests or not relevant to the dispute resolution. 9

In the case that private and individual rights have been injured, substantive remedies are available to accord that party the status quo ante; however, if the property or the object of the claim has already been dissipated, the party shall be given another form of remedy. The remedies available for that situation are punitive damages, material damages, or both, including for pain and suffering. In the case of a money judgment, the court may award interest, interest on late payments, loss of profit or any other remedy that might redress the party’s loss, also with a view to avoiding unjust enrichment. 14 Enforcement What means of enforcement are available?

The means for enforcement depend on the type of the underlying obligation. Depending on the type of obligation and decision granted, the judge may determine attachment, deposit, the public sale of goods, the granting of rights (usufruct), or a penalty to be enforced while the decision is not enforced (eg, daily fine). 15 Public access

Evidence – privilege Are any documents privileged? Would advice from an in-house lawyer (whether local or foreign) also be privileged?

Since there is no discovery in the Brazilian legal system, information and communications between clients and lawyers are deemed as having lawyer-client privilege, like legal advice and legal opinions from an in-house lawyer. 10 Evidence – witnesses Do parties exchange written evidence from witnesses and experts prior to trial?

No, since the Brazilian legal system does not include the discovery phase.

Are court hearings held in public? Are court documents available to the public?

Brazilian Law enforces the rule of publicity for the procedural acts. Therefore, hearings are open to the public, and, likewise, petitions and documents entered into the records may be viewed by the public. However, if protection of privacy or public interest are involved, such as in cases related to family law (eg, marriage, paternity, divorce), an in camera proceeding will be held. In proceedings of provisional remedies for attachment, search and seizure, the judge may also order that the previous reasoning be held in camera proceeding, since the publicity involved in this kind could jeopardise the effectiveness of the proceeding’s performance. 16 Inter partes costs Does the court have power to order costs?

11 Evidence – trial How is evidence presented at trial? Do witnesses and experts give oral evidence?

In arbitration proceedings, written evidence shall be submitted in both the complaints and the parties’ answers. Later on, the arbitration court will establish a deadline for specifying other evidence the parties wish to produce and, afterwards, the phase of fact-finding will start. At this stage, the court may take the parties’ depositions, set forth any expert examinations, hear witnesses and experts, and provide for further procedures it may deem required for the dispute resolution.

The costs, meaning expenses incurred in prosecution or in defending a suit, are a percentage to be paid to the courts based on the value of the claim or an amount fixed by statute. The plaintiff is not required to provide security for the defendant’s costs. 17 Funding arrangements Are ‘no win, no fee’ agreements, or other types of contingency or conditional fee arrangements between lawyers and their clients, available to parties? May parties bring proceedings using third-party funding? If so, may the third party take a share of any proceeds of the claim? May a party to litigation share its risk with a third party?

‘No win, no fee’ agreements are admitted under Brazilian law. For instance, it is usual to have arrangements providing for a fixed www.gettingthedealthrough.com

31


Brazil amount of attorneys’ fees or to have such fees charged on an hourly basis, together with a success fee (usually a percentage of the award) at the end of the dispute. The Brazilian legal system does not prohibit the use of third parties’ funds for bringing legal suits nor the sharing of its proceeds or its risks. However, this situation must be governed by an agreement between the third party and plaintiff or defendant. It is the case of contracts regarding insurance, guarantee and assignment of rights, by means of which a party to a legal action may assign and transfer to a third party a portion or even the totality of a certain right under dispute, provided that said right under dispute is disposable. It is worth further highlighting that the Brazilian Civil Procedure Code allows the substitution of a party to an action already in progress for a third party, should the right under dispute be disposed of by such third party. Said substitution depends on the adversary party’s express consent. Should the adversary not consent to the substitution, the third party may only participate as the alienator’s assistant, but the decision rendered by the court shall be binding towards plaintiff, defendant and third party. 18 Insurance Is insurance available to cover all or part of a party’s legal costs?

In the Brazilian market, one may take out insurance to cover all or part of a party’s legal costs in a dispute. 19 Class action May litigants with similar claims bring a form of collective redress? In what circumstances is this permitted?

Class actions are admitted under Brazilian law, subject to the fulfilment of certain prerequisites. Regardless of the cause of the claim or its governing law, all class actions shall be subjected to Brazilian Civil Procedure Code. Law No. 7347/1985 sets forth terms and conditions for bringing class actions for damages caused, specifically, to the environment, consumers, artistic, aesthetic, historical, touristic or landscape goods and rights, and, further, due to violations of the economic, popular and urban order. However, it restricts who may litigate as a group or on behalf of a group, being, namely, the Public Ministry, the General Attorney’s Office, federal, state and municipal government bodies and agencies, public companies, companies in which the government holds relevant equity interest and those companies that receive funds from the government, as well as associations incorporated under Brazilian law for over one year and that perform, among their activities, the protection of any of the aforementioned rights and goods. Additionally, Law No. 4717/1965 sets forth terms and conditions for bringing class actions for annulment of acts considered to harm or endanger the government, governmental bodies and agencies, whether federal, state or municipal, public companies or companies in which the government holds a relevant equity interest and those companies that receive funds from the government. 20 Appeal On what grounds and in what circumstances can the parties appeal? Is there a right of further appeal?

The decision can be discussed in appeals that shall be judged in state and federal courts constituted by a panel of judges that may fully or partially amend it. As a general rule, the decision passed by a single judge may be reviewed by a superior court, the decision of which may also be re-

32

Araújo e Policastro Advogados examined by a superior court, in case of a federal or constitutional matter. It should be emphasised that the appeal to a superior court is a right of the parties that must be exercised within an established term. The courts may uphold, modify or reverse legal matters and decisions passed by an inferior court. In general, the decision is suspended until their appeals are decided. 21 Foreign judgments What procedures exist for recognition and enforcement of foreign judgments?

Recognition and enforcement of foreign judgments does not depend on reciprocity agreements. For recognition and enforcement of any foreign judgment in Brazil, such judgment must be submitted to the Superior Court of Justice, which will examine the decision passed in the other jurisdiction, and analyse the formal elements of the foreign procedures (under Brazilian law, public order, good behaviour and principles). After the recognition, the foreign judgment can be enforced by the Brazilian system. In case of proceedings under way outside the country, letters rogatory must be sent to the Superior Court of Justice, which will examine the request and may give the exequatur determining the execution of what has been requested by the foreign jurisdiction. 22 Foreign proceedings Are there any procedures for obtaining oral or documentary evidence for use in civil proceedings in other jurisdictions?

Precautionary measures are filed for obtaining oral or documentary evidence for use in proceedings in Brazil. Evidence produced in a given proceeding, such as oral testimony or production of documents, may instruct other proceedings provided that it is requested through letters rogatory, in case of proceedings from other jurisdictions. However, the validity of such evidence as a fact-finding means in a foreign proceeding depends on each jurisdiction. Arbitration 23 UNCITRAL Model Law Is the arbitration law based on the UNCITRAL Model Law?

The Brazilian Arbitration Act (Act No. 9,307 of 23 September 1996) has most of its provisions based on the UNCITRAL Model Law, such as the binding effect of arbitration agreements, the grounds for challenge of arbitrators, the arbitrators’ duty to disclose circumstances likely to give rise to questions regarding their impartiality or independence, the autonomy of the arbitration clause in relation to other terms of the agreement, the possibility for the parties to choose the substantive law applicable to the dispute and the possibility of recognition and enforcement of a foreign arbitration award. Some provisions are also based on Spanish law, French law, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the Panama Convention. 24 Arbitration agreements What are the formal requirements for an enforceable arbitration agreement?

The Brazilian Arbitration Act provides for two kinds of arbitration agreements, both in writing: the arbitration clause (the parties to an agreement elect to submit to arbitration any controversies arising from it) and the arbitration commitment (the parties agree to Getting the Deal Through – Dispute Resolution 2009


Araújo e Policastro Advogados submit a specific dispute to arbitration). The arbitration clause may be inserted either in the agreement text or in a separate document referring to it and shall indicate whether the arbitration will proceed under the supervision and in accordance with the rules of a given institution or, alternatively, the rules expressly selected by the parties to govern the arbitration. In case of adhesion contracts, the adhering party must start the arbitration or expressly agree, upon especially affixing the signature or initials in this clause, with such proceeding for the arbitration clause to produce effects. The arbitration commitment may be entered into by the parties either in court or out of court, by means of a public or private instrument (to be also executed by two witnesses) and must indicate: (i) the parties’ names and personal data; (ii) the arbitrators’ names and personal data or a reference to the institution that shall appoint them; (iii) the subject matter of the dispute; and (iv) the place in which the award shall be issued.

Brazil content of the arbitration commitment and appoint a sole arbitrator to conduct the arbitration. Also, the court may be required to decide whether an arbitrator is suspected or is under any impediment, as well as to declare the nullity, lack of validity or lack of effectiveness of an arbitration agreement or award. 28 Interim relief Do arbitrators have powers to grant interim relief, such as to preserve assets or documents?

Arbitrators shall be required to decide about the granting of interim or conservatory relief. In cases where the party towards which the measures are sought refuses to comply, then the arbitrators shall request the enforcement of such measures by the court. 29 Award

25 Choice of arbitrator If the arbitration agreement and any relevant rules are silent, how many arbitrators will be appointed and how will they be appointed? Are there restrictions on the right to challenge the appointment of an arbitrator?

Each party shall appoint one or more arbitrators and may also appoint their alternates. If an even number of arbitrators is appointed, the arbitrators shall appoint another arbitrator; if they do not reach an agreement, then the parties shall request the court to make the appointment. The appointment of an arbitrator may be challenged whenever there are questions about his or her impartiality or independence. Also, by means of the arbitration agreement the parties may adjust further restrictions as to the appointment of arbitrators. 26 Procedure Does the domestic law contain substantive requirements for the

When and in what form must the award be delivered?

The award must be delivered within the term agreed by the parties. In cases where there is no agreement, the award must be delivered within six months of the commencement of the arbitration proceedings or from the date the arbitrator is substituted. This term may be extended by agreement of the parties and the arbitrators. The award must be rendered in writing, executed and signed by the arbitrators. Decisions shall be taken by majority of votes of the arbitrators. If there is no majority consent, the vote of the president of the arbitration tribunal shall prevail. The award must contain: (i) the parties’ names and a summary of the dispute matter; (ii) the reasoning of the decision, indication of facts, legal issues, and whether the arbitrators reached a decision based on rules and principles of equity; (iii) the arbitrators’ decision on each issue raised by the parties and the term for their compliance; and (iv) the place and date in which the award has been rendered.

procedure to be followed?

The parties may select the rules of procedure for the arbitration or refer to the guidelines of an institutional arbitration organisation or of a specialised entity. If the arbitration agreement is silent, the arbitrators must define the arbitration procedure then applicable. Upon the commencement of the procedure, the arbitrators must try to achieve concordance between the parties. During the proceedings, the arbitrators may obtain the parties’ and witnesses’ deposition and determine the issuance of experts’ opinion or the presentation of further evidence. The arbitration procedure must comply with due process rules.

30 Appeal On what grounds can an award be appealed to the court?

Under Brazilian law, there is no right to appeal an award to the court. Nevertheless, any of the parties may request that the arbitrators correct any material error contained in the award or provide clarification on any obscurity, doubt or contradiction concerning the award, or address any omissions it may contain. 31 Enforcement What procedures exist for enforcement of foreign and domestic

27 Court intervention

awards?

On what grounds can the court intervene during an arbitration?

Arbitration is admitted under Brazilian law only in disputes concerning patrimonial rights that may be freely transferred. In the case that non-related patrimonial rights disputes arise during the arbitration proceedings that in any way might impact the arbitration decision, such disputes must be decided by the courts and the arbitration proceedings will be stayed during such period. Furthermore, any constraint or injunction required by the arbitrators shall be provided in court. When the arbitration procedure depends on an arbitration commitment in order to be commenced, and where one party is reluctant to enter into such arbitration commitment, the other party may request that the refusing party be summoned to appear before the court in order to enter into an arbitration commitment. If the party does not appear before the court, the judge shall define the

www.gettingthedealthrough.com

The arbitration award produces the same effects as a judicial decision. If any of the parties is penalised, the award is good title for enforcement through the courts. Foreign awards must be recognised by the Superior Court of Justice in order to be enforced in Brazil. 32 Costs Can a successful party recover its costs?

The arbitration agreement may indicate how costs shall be supported by each party, as well as whether they may be recovered by the successful party. If there is no such provision in the arbitration agreement, arbitrators may be required to decide this issue.

33


Brazil

Araújo e Policastro Advogados

Alternative dispute resolution

Miscellaneous

33 Types of ADR

35 Are there any particularly interesting features of the dispute resolution

What types of ADR process are commonly used? Is a particular ADR process popular?

Mediation is a usual proceeding in resolving potential conflicts. Also, the parties may resort to conciliation both before and after the arbitration proceeding.

system not addressed in any of the previous questions?

Any individual having capacity under the Brazilian law and enjoying the parties’ trust may be appointed as arbitrator (ie, it is not mandatory that arbitrators be lawyers).

34 Requirements for ADR Is there a requirement for the parties to litigation or arbitration to consider ADR before or during proceedings? Can the court or tribunal compel the parties to participate in an ADR process?

Neither party is required to participate in an alternative dispute resolution proceeding before litigation or arbitration. On the other hand, the parties may agree on this requirement, by establishing it in a specific section of an agreement.

Sylvio Fernando Paes de Barros Júnior Alexandre Lins Morato

spaesdebarros@araujopolicastro.com.br amorato@araujopolicastro.com.br

Av. Brigadeiro Faria Lima, 3729 - 2º Andar Itaim Bibi 04538-905 São Paulo - SP

Tel: +55 11 3049 5700 / 3168 2566 Fax: +55 11 3078 6120 / 3078 6195 www.araujopolicastro.com.br

Brazil

34

Getting the Deal Through – Dispute Resolution 2009


Annual volumes published on: Air Transport Anti-Corruption Regulation Arbitration Banking Regulation Cartel Regulation Construction Copyright Corporate Governance Dispute Resolution Dominance e-Commerce Electricity Regulation Environment Franchise Gas Regulation Insurance & Reinsurance Intellectual Property & Antitrust Labour & Employment Licensing

Merger Control Mergers & Acquisitions Mining Oil Regulation Patents Pharmaceutical Antitrust Private Antitrust Litigation Private Equity Product Liability Project Finance Public Procurement Real Estate Restructuring & Insolvency Securities Finance Shipping Tax on Inbound Investment Telecoms and Media Trademarks Vertical Agreements

For more information or to purchase books, please visit: www.GettingTheDealThrough.com

The Official Research Partner of the International Bar Association

Strategic research partners of the ABA International section

Dispute Resolution 2009 ISSN 1741-0630


Getting the Deal Through - Dispute Resolution 2009 - Brazil