Getting the Deal Through - Dispute Resolution 2011 by Araujo e Policastro Advogados

Dispute Resolution in 47 jurisdictions worldwide Contributing editor: Simon Bushell

2011 Published by Getting the Deal Through in association with: Achour & Hájek Advokaturbüro Dr Dr Batliner & Dr Gasser Alves Pereira, Teixeira de Sousa & Associados Anderson Mo¯ri & Tomotsune Araújo e Policastro Advogados Attorneys-at-law Juridia Ltd Bharucha & Partners Bianchi Rubino-Sammartano & Associati Bredin Prat Bulboaca & Asociatii Charles Adams Ritchie & Duckworth Condon & Forsyth LLP ELIG Attorneys at Law EnGarde Frank Advokatbyrå AB Fulbright & Jaworski LLP Geoffrey Dunne & Co Solicitors Gilbert + Tobin Grupo Vial Abogados GSK Stockmann + Kollegen Habib Al Mulla & Co Herbert Smith LLP Hoet Pelaez Castillo & Duque Horten Jenner & Block LLP Kleyr Grasso Associés Law Firm Yust LLP Liedekerke Wolters Waelbroeck Kirkpatrick Miller, Canfield, Paddock and Stone PLC Motieka & Audzevicius Niederer Kraft & Frey Odvetniki Šelih & partnerji, o.p., d.o.o. Pantazis & Associates Preti Flaherty Beliveau & Pachios LLP Richards, Layton & Finger Schönherr Shin & Kim Sofunde, Osakwe, Ogundipe & Belgore Soteris Pittas & Co LLC Stillman, Friedman & Shechtman, PC Tilleke & Gibbins Varul Wardyn´ski & Partners Werksmans Attorneys Wiesner & Asociados Ltda Abogados Woods LLP

contents

Dispute Resolution 2011 Contributing editor: Simon Bushell Herbert Smith LLP Business development managers Alan Lee George Ingledew Robyn Hetherington Dan White Marketing managers Ellie Notley Sarah Walsh Alice Hazard Marketing assistants William Bentley Sarah Savage

Introduction Simon Bushell Herbert Smith LLP

Australia Steven Glass, Amy Annan, Airlie Goodman and Lena Vanmali Gilbert + Tobin

Austria Gerold Zeiler and Wolfgang Höller Schönherr

Belgium Joe Sepulchre, Hakim Boularbah and Charlotte Marquet Liedekerke Wolters Waelbroeck Kirkpatrick

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

Canada – Quebec James A Woods, Christopher L Richter and Marie-Louise Delisle Woods LLP

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

Chile Rodrigo Guzmán Karadima and Cristóbal Leighton Rengifo Grupo Vial Abogados

Colombia Dario Cadena Lleras and Eduardo A Wiesner Wiesner & Asociados Ltda Abogados

Cyprus Soteris Pittas Soteris Pittas & Co LLC

Czech Republic Gabriel Achour and Daniel Hájek Achour & Hájek

Denmark Niels Schiersing Horten

England & Wales Simon Bushell Herbert Smith LLP

Estonia Paul Varul, Ramon Rask and Peeter Viirsalu Varul

Subscriptions manager Nadine Radcliffe Subscriptions@ gettingthedealthrough.com

Finland Martina Kronström Attorneys-at-law Juridia Ltd

France Tim Portwood Bredin Prat

Germany Karl von Hase GSK Stockmann + Kollegen

103

Assistant editor Adam Myers Editorial assistant Lydia Gerges

Greece Dionysios Pantazis and Athanasia Braimi Pantazis & Associates

110

India Vivek Vashi and Shouger Merchant Bharucha & Partners

116

Ireland Geoffrey Dunne Geoffrey Dunne & Co Solicitors

123

Senior production editor Jonathan Cowie Chief subeditor Jonathan Allen Subeditor Davet Hyland Production editor Anne Borthwick

Italy Mauro Rubino-Sammartano Bianchi Rubino-Sammartano & Associati

131

Lithuania Ramunas Audzevicius and Tomas Samulevicius Motieka & Audzevicius

159

Editor-in-chief Callum Campbell Publisher Richard Davey

Luxembourg Marc Kleyr Kleyr Grasso Associés

166

Dispute Resolution 2011 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 2011 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. No legal advice is being given in the publication. The publishers and authors accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of June 2011, be advised that this is a developing area.

Printed and distributed by Encompass Print Solutions Tel: 0844 2480 112

Japan Naoki Iguchi and Taisuke Yamamoto Anderson Mo¯ri & Tomotsune

138

Korea Benjamin Hughes, Beomsu Kim and Seungmin Lee Shin & Kim

143

Latvia Debora Pavila and Vairis Dmitrijevs Varul

148

Liechtenstein Johannes Gasser Advokaturbüro Dr Dr Batliner & Dr Gasser

153

Nigeria Babajide O Ogundipe and Lateef O Akangbe Sofunde, Osakwe, Ogundipe & Belgore

173

Poland Monika Hartung and Jan Ciec´wierz Wardyn´ski & Partners

178

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

185

Romania Valentin Berea and Diana Teodorescu Bulboaca & Asociatii

191

Russia Alexander Bolomatov and Elena Lebedeva Law Firm Yust LLP

197

Slovenia Gregor Simoniti and Tilen Terlep Odvetniki Šelih & partnerji, o.p., d.o.o.

203

South Africa Des Williams Werksmans Attorneys

212

Sweden Marcus Axelryd and Helena Dandenell Frank Advokatbyrå AB

218

Switzerland Ernst F Schmid Niederer Kraft & Frey

224

Thailand Thawat Damsa-ard and Noppramart Thammateeradaycho Tilleke & Gibbins

230

Turkey Gönenç Gürkaynak ELIG Attorneys at Law

236

Ukraine Irina Nazarova and Ivan Mishchenko EnGarde

242

United Arab Emirates Habib Al Mulla, Karim Nassif and Gordon Blanke Habib Al Mulla & Co

248

United States – California Roderick D Margo, Scott D Cunningham and Stephen M Rinka Condon & Forsyth LLP

255

United States – Delaware Samuel A Nolen, Robert W Whetzel and Chad M Shandler Richards, Layton & Finger

261

United States – Illinois Lawrence S Schaner Jenner & Block LLP

267

United States – Maine Gregory P Hansel Preti, Flaherty, Beliveau & Pachios, LLP

273

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

279

United States – New York Marjorie J Peerce and Mary Margulis-Ohnuma Stillman, Friedman & Shechtman, PC

285

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

293

Venezuela Carlos Dominguez Hoet Pelaez Castillo & Duque

301

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Araújo e Policastro Advogados

Brazil

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

Litigation 1

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, and guardian of the Constitution of the Republic; • the Superior Court of Justice – the guardian of the federal law and treaties, and the 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 common justice and 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. 2

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.

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

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

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. The last phase of the proceeding comprises the final hearing and the judge’s decision.

Brazil 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. 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

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 – pretrial Do parties exchange written evidence from witnesses and experts prior to trial?

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

Araújo e Policastro Advogados reached by the court, may cause irreparable damage to the other party. 13 Remedies What substantive remedies are available?

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

Brazilian law enforces the rule of publicity for 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 is 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 as an in camera proceeding, since the publicity involved could jeopardise the effectiveness of the proceeding’s performance. 16 Costs Does the court have power to order costs?

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 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 or the sharing of its proceeds or its risks. However, this situation must be governed by an agreement between the third party and the plaintiff or defendant. This is the case for contracts regarding insurance, guarantee and assignment of rights, by means of which a party to a legal action may assign

Getting the Deal Through – Dispute Resolution 2011

Araújo e Policastro Advogados 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 the 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 the 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 reexamined by a superior court in cases 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 www.gettingthedealthrough.com

Brazil 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 the 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 the 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 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 the 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: • the parties’ names and personal data; • the arbitrators’ names and personal data or a reference to the institution that shall appoint them; • the subject matter of the dispute; and • the place in which the award shall be issued.

Brazil 25 Choice of arbitrator If the arbitration agreement and any relevant rules are silent on the matter, 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 Arbitral procedure Does the domestic law contain substantive requirements for the 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. 27 Court intervention 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 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

Araújo e Policastro Advogados 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?

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 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 a 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: • the parties’ names and a summary of the dispute matter; • the reasoning of the decision, indication of facts, legal issues and whether the arbitrators reached a decision based on the rules and principles of equity; • the arbitrators’ decision on each issue raised by the parties and the term for their compliance; and • the place and date in which the award has been rendered. 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 awards?

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.

Sylvio Fernando Paes de Barros Jr Alexandre Lins Morato

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

Av. Brigadeiro Faria Lima, 3729, 2nd Floor Itaim Bibi 04538 905 São Paulo Brazil

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

Getting the Deal Through – Dispute Resolution 2011

AraĂşjo e Policastro Advogados 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. Alternative dispute resolution 33 Types of ADR 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.

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Brazil 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. Miscellaneous 35 Are there any particularly interesting features of the dispute resolution system not addressed in any of the previous questions?

Any individual having capacity under the Brazilian law and enjoying the partiesâ&#x20AC;&#x2122; trust may be appointed as arbitrator (ie, it is not mandatory that arbitrators be lawyers).

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