Arbitration and COVID-19

Amidst an unprecedented health crisis, and an uncertain economic scenario, the law community faces a great number of challenges to go through these turbulent times and aid clients in the best way possible.
Even with the best efforts being made by the Judiciary, there is a concern that not all Brazilian Courts will be able to function properly during what could be a long period of lockdown.

In this scenario, the role Arbitration plays as a first choice for urgent and complex matter is reinforced.

As a private procedure, Arbitration adapts more easily – and more efficiently – to the need of staff to work from their homes, and is notoriously more flexible. Also, the entities that manage arbitration procedures have a smaller case load, which allows them to adopt more modern practices and to have quicker responses to the problems generated by COVID-19.

Another contributing factor is that the majority of arbitration entities provide for emergency arbitrators , allowing parties to use Arbitration as a resource also for urgent decisions.

As an example, we outline below the resolutions enacted by some Brazilian arbitration entities – bound to be altered and adjusted along the way –to deal with COVID-19:

International Chamber of Commerce – Brazil

• Duration: March 16th, 2020 – April 17th, 2020
• 100% of staff working from home
• Request for Arbitration  e-mail to arb@iccwbo.org
• Request for Emergency Arbitrator  e-mail to emergencyarbitrator@iccwbo.org
• Requests for ADR e-mail to adr@iccwbo.org
• All meetings and hearings should be done through phone or video
• All travel is suspended
• All events scheduled until April 17th are delayed until further notice

Câmara de Arbitragem do Mercado – CAM – B3

• Resolution 01/2020
• Duration: March 23, 2020 until further notice
• Hard copies of documents and motions will no longer be used, until further notice – filing through CAM Digital or e-mail (attention to files bigger than 20MB; pen-drives are not allowed)
• Any decision regarding suspension of the arbitral procedure, cancellation of hearings, etc, shall be decided by the Tribunal and/or the Parties
• The secretariat shall provide a Dial-In number for meetings and hearings
• In case the parties decide to suspend the procedure, no monthly fee will be charged during the suspension
• Secretariat: Telephone, e-mail or through CAM Digital
• Request for Arbitration: CAM Digital

Centro de Arbitragem e Mediação da Câmara de Comércio Brasil-Canadá – CAM-CCBC

• Resolution 39/2020
• Hard copies of documents and motions will no longer be used, until further notice – filing through e-mail and upload on SharePoint
• Request for Arbitration  e-mail to secgeral@ccbc.org.br
• Hearings and meetings should be done via Microsoft Teams, with virtual presence of respective Case Manager
• 100% of staff working from home – any assistance done through phones and e-mail
• All events scheduled for the first semester of 2020 are canceled

Câmara de Conciliação, Mediação e Arbitragem – FIESP/CIESP

• Resolutions 01/2020 and 02/2020
• Duration: March 17th, 2020 until further notice
• Hard copies with deadlines until March 27th  must be filed by post office until March 30th with receipt
• All petitions and Documents must be filed electronically, with recipient’s confirmation cmasp@ciesp.com.br and secgeral.cmasp@ciesp.com.br
• Files can be sent under. zip format or via shared links
• If parties or the Tribunal insist in filing motions through hard copies, it must be done by post office
• Secretariat will provide Dial-in and Webex (Cisco) for hearings and meetings, as requested by the Arbitral Tribunal
• Request for Arbitration shall be done exclusively by e-mail
• Deadlines will start on the first day after the Secretariat sends e-mail with communication, motion or decision
• The Arbitral Tribunal will send all decisions and awards via e-mail. Only in case of awards, they should also be sent via post office
• 100% of staff working from home – any assistance done through phones and e-mail

Câmara FGV de Mediação e Arbitragem – FGV

• Resolution 01/2020
• Duration: March 19th, 2020 until further notice
• No hard copies shall be filed
• All motions and documents sent must be signed electronically
• Large documents may be sent under .zip format or link for download
• Deadlines will start on the first day after the Secretariat sends e-mail with communication, motion or decision
• Requests for Arbitration  e-mail to camara@fgv.br, arthur.izidoro@fgv.br and maria.dyma@fgv.br
• Arbitral Tribunal and/or Parties will decide on suspension of the procedure and other necessary measures
• 100% of staff working from home – any assistance done through phones and e-mail

Câmara de Mediação e Arbitragem Empresarial – CAMARB

• Resolution 08/2020
• Duration: March 18th until 31, with a possibility of extension
• No hard copies shall be filed
• 100% of staff working from home – any assistance done through phones and e-mail
• Motions and documents will be sent by e-mail (files with over 10MB shall be shared via specific links provided by the case manager)
• Arbitral Tribunal and/or Parties will decide on suspension of the procedure and other necessary measures
• Request for Arbitration email to camarb@camarb.com.br
• Any procedure without a Tribunal shall be electronically conducted by the Secretariat; if the parties do not agree, procedure will be suspended

Centro de Arbitragem e Mediação – AMCHAM Brazil

• Resolution 01/2020
• Duration: March 20th, 2020 until further notice
• All deadlines must be complied with and filed via e-mail
• Hard copies must be filed only after this Resolution ends
• Large documents must be sent under .zip format, links for download or shared file created by AMCHAM
• Deadlines will start on the first day after the Secretariat sends e-mail with communication, motion or decision
• Requests for Arbitration e-mail to amcham.arbmed@amchambrasil.com.br

Centro Brasileiro de Mediação e Arbitragem – CBMA
• Resolution 01/2020
• Duration: March 17th, 2020 until further notice
• No hard copies shall be filed – all filings to be done by e-mail
• All motions and documents sent must be signed electronically
• Large documents must be sent under .zip format, links for download
• Deadlines will start on the first day after the Secretariat sends e-mail with communication, motion or decision
• Requests for Arbitration e-mail to cbma@cbma.com.br
• Arbitral Tribunal will decide on suspension, postponing hearings, and whatever is necessary
• 100% of staff working from home – any assistance done through phones and e-mail

Most entities took similar measures, usually differing according to the specifics of each internal rules. The general intent remains clear: to allow procedures to remain active and, while, at the same time, caring for the health and well-being of the persons involved (staff, arbitrators, lawyers, parties and witnesses).

It is reasonable to believe these measures will be effective, at least in the short term. However, problems will certainly arise if authorities extend this period of social isolation.

The complexity that is common to matters litigated in Arbitration demands intensive and extensive work, not only by attorneys, but also by experts and witnesses, which can be severely harmed by the impossibility of face-to-face meetings. For example, it is harder for an expert to draft a reliable report if he or she is prevented from visiting a construction site. Also, it is undeniable that online hearings or meetings may harm the deposition of witnesses or the arbitrators’ understanding of the case.

These circumstances might impact the parties’ right to due process, which is vital to ensure that the parties obtain a fair decision through the arbitral award.

In this grave setting, our role becomes even more relevant, not only in assisting clients with the choice between the Judiciary and an arbitration proceeding, but also in presenting creative, practical, and effective solutions within the method chosen.

O Costa Tavares Paes Advogados nasceu em 2010 e conta com escritórios em São Paulo, Rio de Janeiro e Brasília. Saiba mais sobre a banca e nossos serviços.