03/10/2023
By – Thiago Andere Martins
In February 2023, the National Agency of Land Transportation (“ANTT”) amended, through Resolution nº 6.009 of 2023, the rules for out-of-court settlement of disputes between the regulatory agencies and the regulated entities provided for Resolution nº 5.845 of 2019, introducing the possibility for the parties to opt for an emergency arbitrator to seek injunctive or urgent relief.
The previous wording of the regulation stipulated that urgent measures could only be requested from the judiciary. With the innovation, it became possible to appoint an arbitrator for this purpose, who will decide the matter with provisional effectiveness conditioned on the filing of the arbitration request to discuss the main dispute within 30 days of the decision, under penalty of ceasing the effects of the measures.
The institute of the emergency arbitrator already exists in the Arbitration Rules of the International Chamber of Commerce since 2012. After a testing period full of discussions, several national arbitration institutions became regulated. Among them, we highlight the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada, an arbitral institution of excellence and well-reputed in Brazil, which in 2018 implemented in its arbitration rules provisions to deal with the figure of the emergency arbitrator, a measure adopted by several others in the aftermath.
The innovation brought by the ANTT’s resolution occurred with relative agility in face of market changes. The change reflects public agents’ trust in arbitration and demonstrates the concern to incorporate and apply the best practices in the arbitration field.
With the arrival of this novelty, arbitrations with public agents may benefit from the possibility of extending the qualities of the institute also to this pre-arbitration phase. Urgent issues may be decided by a professional specifically appointed for the cause, who is trusted by the parties due to their expertise and technical knowledge. They also follow a procedural rite that excels with its celerity and speed in the granting measures.
However, we should always pay attention to the fact that the use of the emergency arbitrator demands a differentiated and specific preparation by lawyers since the procedure is covered with particularities that differ both from the summary procedures of the Brazilian Code of Civil Procedure, as well as from the traditional arbitration procedure itself.
Thus, with the arrival of this important change and with the possible benefits and peculiarities, it is necessary to pay attention to the wording of the arbitration clauses in the contracts, besides always seeking a technical, specialized, and properly trained professional to conduct the disputes.
L.O. Baptista Advogados’ team has extensive experience in arbitration and has highly specialized professionals with extensive knowledge to offer adequate advice in the resolution of disputes involving arbitration procedures and public agents.
