The information shown below, organized in the form of questions and answers, may help you to find out more about the universe of arbitration. If you still have any queries after reading these topics, contact us by e-mail: firstname.lastname@example.org
Arbitration is a consensual means to solving disputes, whereby the arbitrator(s), chosen by parties, decides(decide) on the merits of the existing dispute.
The roots of arbitration are found in consensus regarding the way of solving disputes outside the realm of the state, as it is born of the expression of the will of the Parties in an arbitral agreement, characterized by being an adversarial procedure, whereby at its end, an impartial third party, usually chosen by the parties, will serve a definitive and binding award, without recourse to appeal. The arbitration award, also called arbitration sentence, is qualified by Brazilian civil procedural law as a judicial title, with power of enforcement comparable to that of a court decision.
In short, in Brazil, in refers to a procedure governed by Law 9,306/96, amended by Law 13,129/2015, which provides the possibility that parties to litigation take the deadlock to be resolved by a particular individual (arbitrator(s)). The arbitrator(s) is (are) a person(s) chosen by parties to settle the conflict, who is (are) usually a specialist(s) in the subject under discussion, whereby assuring the parties to litigation a specialized and thorough award in matters involving intellectual property assets and connected transactions, in any financial dispute wherein the parties decide to settle by arbitration.
The role of the Arbitrator is to decide on the conflict existing between the parties that elected him/her, acting impartially.
The Arbitrator will act in accordance with the CArb-ABPI Code of Ethics, assuring balanced participation and fair treatment for all throughout the procedure.
CArb-ABPI is an abbreviation for the “Arbitration Chamber of the Brazilian Association of Intellectual Property (ABPI)”. The ABPI is a non-profit entity, founded on August 16, 1963 and focused on the study of Intellectual Property, notably industrial property law, copyright law, competition law, transfer of technology and other similar branches.
As a highly recognized and specialized entity, it has a select bench of arbitrators trained and equally specialized in the areas listed above, who have broad technical and practical knowledge of the subject matter to decide disputes of the parties interested in settling conflicts in Intellectual Property.
CArb-ABPI also stands out for offering costs that are accessible to parties interested in settling their disputes by arbitration, acting with diligence and zeal in managing the procedures under its responsibility.
Any private citizen or legal entity seeking a solution to their conflict and who has entered into an agreement to arbitrate, choosing the “Arbitration Chamber of the Brazilian Association of Intellectual Property (ABPI)”, CArb-ABPI.
The procedure is supported by the Regulations of the Arbitration Chamber of the Brazilian Association of Intellectual Property.
Yes, it is indeed possible to participate in an arbitration already underway, provided that all the requirements of the CArb-ABPI Regulations are met, in particular Articles 36 to 38.
The purpose of CArb-ABPI is to manage conflicts involving intellectual property rights and other related or similar branches of law. Disputes whose subject matter refers to available equity law may be submitted before CArb-ABPI.
CArb-ABPI can be indicated to solve a dispute by way of Agreement to Arbitrate, arbitration clause or commitment, which may be freely drafted by the parties, provided that the legal requirements are met. CArb-ABPI provides a model arbitration clause.
The Regulations, in addition to the Rules of Order, the Code of Ethics, the Table of Prices and Arbitrators’ Fees, the bench of Arbitrators and models of CArb-ABPI, can be found on this website.
The documents of the arbitration procedures will only be provided to the parties, considering the privacy thereof.
The costs of CArb-ABPI arbitration procedures can be consulted in the CArb-ABPI Tables of Prices and Arbitrators’ Fees by clicking here.
Pursuant to Art. 16 et seq. of the Regulations, an arbitral procedure is instituted before CArb-ABPI by submitting a Request for Arbitration before the CArb-ABPI Secretariat, in a number of copies that includes receipt of the Request for Arbitration by all Parties, Arbitrators and Secretariat, containing the requirements of Art. 17 of the CArb-ABPI Regulations.
The Petitioner(s) seeking Arbitration must complete a User Registration. Thereafter, the Petitioner should access the user page through the area “Access for Registered Users” at the top of this page, subsequently registering new arbitration.
Once the registration is received by CArb-ABPI, an invoice will be sent for payment of the applicable fees.
Commensurate with Art. 19 of the CArb-ABPI Regulations, the start date of the arbitration procedure is the date on which the Request for Arbitration is received by the CArb-ABPI Secretariat.
See Regulations Articles 16 to 65.
The procedure for adopting urgent measure before or after setting up arbitration can be consulted in Articles 117 to 131 of the CArb-ABPI Regulations.
A lawsuit cannot be filed if the conflict is brought before arbitration, relative to the contract establishing arbitration as a solution to the litigation, bearing in mind that the Agreement to Arbitrate has the positive effect of granting the Arbitrator exclusive powers to solve the merits of the dispute, and the negative effect of barring the matter from being heard by the Judiciary.
The duration of arbitration varies from case to case. The arbitration law provides that the arbitral award shall be handed down within the term stipulated by the parties. However, if not agreed upon otherwise, the term for serving the award is six months, counted from institution of the arbitration or replacement of the arbitrator. This term may be extended, by mutual agreement between the Parties and the Arbitrator(s), depending on the specific situations of the procedure in course.
The presence of lawyers is not compulsory, however it is highly recommendable to seek legal advice on specific matters such as intellectual property. Lawyers play a crucial role in legal advice regarding the topics, preparing acts and legal documents, including any potential agreement which may arise from the procedure.
The Parties will be informed of procedural acts by official notice, which, unless otherwise provided for by mutual agreement of the Parties in the Agreement to Arbitrate, shall be made personally to the Parties, by way of their legal representative or attorney, by letter with acknowledgment of receipt, being deemed completed upon receipt of notification by the party.
The Parties shall be deemed notified of the acts practiced at a hearing when they are present at said hearing.
All communications during the course of arbitration procedures shall be in writing, by procedural order or by official letter from CArb-ABPI.
CArb-ABPI Regulations: Articles 135 to 137.
Any communications shall be forwarded to the CArb-ABPI Secretariat, in a number of copies sufficient for receipt by all Parties, Arbitrators and the Secretariat.
The terms specified in the CArb-ABPI Regulations begin to run on the first business day after notice by the Party or the occurrence of the event that triggers the term count, excluding the start day and including the expiry date.
Except where stipulated otherwise in Law or in the Regulations, all the terms will be modified by mutual agreement of the Parties.
CArb-ABPI Regulations: Articles 133 and 134.
As a general rule and unless provided for otherwise by the Parties and by the Arbitrator(s), personal presence is required at the hearings. However, admittedly in the wake of the COVID-19 pandemic, arbitrators and parties have become more flexible to accommodate virtual hearings. It is recommended that virtual hearings (with suitable communication platforms for such) or attendance in person be clearly decided during the procedure.
In the event of no-show at the inaugural hearing, said hearing shall be moved forward to a date on which all can attend.
However, the hearing to establish the facts of the case shall be held even if any Party(ies) fail to show up, provided that notice of such has been given, pursuant to Art. 87 et seq. of the CArb-ABPI Regulations.
The dispute will be settled by the Arbitrator(s) by serving an arbitral award of a definitive and binding nature, thus bringing arbitration to a close.
See Regulations Art. 94 et seq.
The Arbitration Tribunal may serve a total or partial arbitral award, these being definitive and binding, not subject to appeal and the Parties shall comply thereto in the form and within the terms established therein.
See Regulations Art. 101 et seq..
The arbitral award should be enforced and complied with in the form and within the terms established therein, regardless of any formality, provided that the Parties have been notified, as prescribed in the CArb-ABPI Regulations.
CArb-ABPI Regulations: Art. 116.
In the case of spontaneous non-compliance, it is possible to enforce the arbitral award before the Judiciary.
Yes, if the Parties reach an agreement during the course of the arbitral procedure, even before an Arbitration Tribunal is set up, such Tribunal may, at the request of the Parties, ratify the agreement in the form of a specific arbitral award.
CArb-ABPI Regulations: Articles 107 to 109.
Under Art. 7 of the CArb-ABPI Regulations, except in the hypothesis of a provision expressed by the Parties to the contrary, the arbitration procedures under CArb-ABPI Regulations will be conducted in the language in which the respective Agreement to Arbitrate was drawn up.
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