In Brazil, it is common that, when choosing arbitration as a method of conflict resolution, the parties need to request urgent measures, which cannot wait for the constitution of the Arbitral Tribunal. To meet this need, the emergency referee can be important.
Recently, the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (CAM-CCBC) edited the Administrative Resolution No. 44/2020, changing the rules related to the activity of emergency arbitrators.
The main changes are related to the admission of the emergency arbitrator proceeding from “opt in” to “opt out”. In the past, the parties should have expressly provided in the arbitration agreement, if they wanted to submit any urgent measures to an emergency arbitrator (opt in), and now they must expressly dispose if they want to remove the institute (opt out).
Regarding the procedure, the text provides that the request for an emergency measure should be sent to the e-mail of the CAM-CCBC Secretariat, no longer to the other party.
The request will be processed and analyzed by the CAM-CCBC Presidency, who will appoint the emergency arbitrator, responsible for rendering his decision within 15 days. This period may be extended by the CAM-CCBC Presidency for (i) its own initiative in the appropriate circumstances; (ii) agreement between the parties; or (iii) a reasoned request from the emergency arbitrator.
The decisions taken by the emergency arbitrator must be enforced by the parties. The Arbitral Tribunal, once constituted, may modify, revoke or annul the decisions previously handed down. However, The decisions made by the emergency arbitrator must be enforced by the parties. The Arbitral Tribunal, once constituted, can modify, revoke or annul the decisions previously handed down. However, the decisions of the emergency arbitrator will no longer be mandatory if the arbitration proceeding ends without the issuance of a final arbitration award.
In addition, the CAM-CCBC provides that it is necessary for the parties to request the initiation of the main arbitral proceedings within 15 days of receipt of the application by the Chair of the CAM-CCBC, under penalty of the emergency procedure being terminated.
It is important to note that the changes will apply to any dispute submitted to the CAM-CCBC regulation. The previous administrative resolution (RA nº 32/2018) will continue to apply to procedures instituted on the basis of arbitration agreements signed between July 20, 2018 and December 1, 2020, unless otherwise provided.
Finally, considering that the emergency arbitrator procedures are gaining more space in the legal environment, and that the details may vary according to the institutions, it is important to exercise caution when drafting the arbitration agreement and the election of the chamber who will administer the procedure.
Author: Giulia Spalletta
