Regulation of the Mediation Chamber of the Brazilian Intellectual Property Association (CMed-Abpi)

1.1. The purpose of this Regulation is to regulate the mediations and manage its procedure before the Mediation Chamber of the Brazilian Intellectual Property Association (“CMed-ABPI”), when submitted by the initiative of any concerned parties and member institutions.

1.2. Parties who resolve to submit any dispute to CMed-ABPI are bound by this Regulation and acknowledge the exclusive competence of CMed-ABPI and the mediators appointed to administer and conduct the procedure.

1.3. Any changes to this Regulation will apply to the proceedings in progress, except for acts already consummated.

2.1. Mediation is a technical activity exercised by an impartial third party without decision-making power, who, chosen or accepted by the parties, assists and encourages them to identify or develop consensual solutions to the dispute.

3.1. The Parties interested in proposing mediation must send a communication to the Executive Secretariat of CMed-ABPI, accompanied by proof of payment of the initial administration fee, expressing in writing their willingness to initiate a procedure, indicating, among others included in the appropriate form the name; qualification; the scope proposed for negotiation; the physical, electronic addresses and telephone numbers for contact of the other Party; of its Legal Representatives and; attorneys, if case a single pleading of all parties concerned is not presented.

3.1.1. If any Party is a legal entity, a regular copy should be filed with the updated articles of organization, and proof of authority of those signing for the entity, duly registered, in accordance with the provisions of Article 6.5.1 of this Regulation, or in case of individuals, an ordinary copy of the identity card and of the taxpayer identification CPF.

3.1.2. The requesting Parties must designate, even if by clearance certificate, the existence of any other judicial or extrajudicial proceedings started or resolved regarding the scope to be negotiated in this procedure, identifying the subject matter thereof.

3.1.3. In any case, if there is a mediation agreement, the Parties will detail the full content thereof, sending a full copy of the document.

3.2. Once the request for mediation has been admitted and the initial administration fee paid, CMed-ABPI will send an invitation letter to the Parties and their attorneys, as appropriate, setting a date and time for them to attend the first mediation meeting.

3.2.1. The first mediation meeting may, if requested, take place separately and will comply with the conditions arising from the parties’ agreement, if any, and the applicable law.

3.2.2. The first mediation meeting will be conducted by a Mediator chosen by the Parties or, if there is no consensus or nomination, appointed by the Chamber’s Director, pursuant to the following chapter.

3.2.3. If a mediator who is not a member of CMed-ABPI’s roster of mediators, the conditions set forth in Article 9.2.4 will apply, in which case the appointment must be submitted for approval to the Clearing Director.

3.2.4. If a mediator who is not a member of CMed-ABPI’s roster of mediators is indicated, his/her resume and contact information must be also provided.

3.2.5. Mediation with more than one Mediator will follow the same procedure established for mediations with a single Mediator, according to CMed-ABPI’s table of costs and fees.

3.2.6. Mediation meetings will be held with the Parties, either jointly or separately.

3.2.7. The requirements of independence and impartiality, the guiding principles of the function provided in the CMed-ABPI Code of Ethics, as well as the Regulation contained in Article 4 of this Regulation, will apply to the Mediator.

3.2.8. All participants in the mediation meetings will sign a Confidentiality Agreement.

3.3. Once the Parties express their interest in mediation, the Mediators will be chosen pursuant to Article 4 of the Regulation.

4.1. The Parties must, within five (05) calendar days from the receipt of the invitation letter for the first mediation meeting, indicate five (05) names, in order of preference, of mediators who may or may not be members of CMed-ABPI’s staff, to act as mediators, according to their availability and acceptance of the task.

4.2. If the Parties fail to nominate the five names of the Mediators within the time limit established above or fail to reach consensus on the nomination of at least one Mediator who will act in the proceedings within the time limit established in this Chapter (Article 4.1), it will be incumbent upon the Director of the Chamber to appoint the Mediators.

4.3. Once the mediators are chosen, pursuant to Article 3.2.2, or the appointment of mediators outside CMed-ABPI is confirmed, pursuant to Article 3.2.3, the Executive Secretariat will send them a communication so that, within three (3) days, they can say whether or not they accept the appointment.

4.3.1. If the first mediator nominated by consensus does not accept the appointment, the second name agreed upon by the Parties will automatically be invited, and so on, in the form of art. 4.1.

4.3.2. If the second name agreed upon by the Parties is not available, for any reason, the Chamber Director will make the appointment.

4.4. Once the appointment is accepted by the mediator, he/she must send to the Executive Secretariat the Declaration of Independence and Impartiality, using the specific form established by CMed-ABPI and answer the chamber’s specific questionnaire.

4.5. The Executive Secretariat will send, within three (3) calendar days, a communication confirming the name of the Mediators chosen after acceptance and informing the Parties of the amounts involved, as well as the confirmation or change of the date of the first meeting foreseen in article 3.2.

4.6. Notwithstanding any other provision foreseen in the Regulation of Procedure of the CSD-ABPI, may not act as a Mediator those who fall under any of the hypotheses of art. 7 of the CMed-ABPI Regulation.

4.6.1. Any Party may challenge the impediment or suspicion of the Mediator within three (3) days from the date of the communication sent by the Executive Secretariat pursuant to Article 4.5 of the Regulation.

4.6.2. The period for challenging the appointed Mediators provided in article 4.6.1 above without any express manifestation from the Parties, the choice of the Mediators will be presumed confirmed.

4.7. The Mediators will be replaced in case of resignation, force majeure, or supervening event that impairs the fulfillment of the duties of independence and impartiality.

4.8. A substitute will be appointed in the same procedure as in the preceding articles of this Regulation.

4.9. The substitution provided for in Article 4.7 of this Regulation is dispensable in the case of mediation conducted by more than one Mediator, following the procedure with the remaining Mediator, provided that the Parties do not object.

4.10. The mediator can recommend, and the participants can jointly request Co-mediation. If accepted by all, the Mediator will be appointed by the Mediator chosen or accepted by the parties after appointment by the Director of this Chamber.

5.1. CMed-ABPI is headquartered in the same place as the Brazilian Intellectual Property Association.

5.2. Notwithstanding the above, the mediation meetings may take place at another location in the City of São Paulo or in another City, if approved by the Director of CMed-ABPI and the chosen Mediators, subject to the table of costs.

6.1. Once the mediation is accepted, the Parties, their respective lawyers and other participants, when present, and the Mediators will sign, in a meeting, the Mediation Minutes, to govern the proceedings among the concerned parties.

6.2. The Mediation Minutes will necessarily contain:

a) the names and qualifications of the Parties and their respective attorneys and representatives, if any, and the chosen Mediators

b) the place of mediation and its language

c) the object, even if subject to change, to be discussed throughout the procedure

d) the Regulation of the mediation procedure

e) the costs of mediation and the responsibility for the payment of fees and charges, as well as the form of the respective payment and the estimate of other costs of the procedure

f) Start date, the preliminary schedule of meetings, according to the availability of the interested parties and the Mediators The fixed schedule may be revised and modified, by mutual agreement, at any time during the procedure by the interested parties

g) the confidentiality agreement, which may be totally or partially waived only in cases where the nature of the conflict, the interests under discussion, and/or those involved in the procedure so require

6.2.1. The participants in the procedure may make other provisions as they deem fit, to be discussed with the Mediators.

6.3. The Parties, their respective attorneys, and other participants, when present, will sign at the initial meeting a Declaration releasing CMed-ABPI from liability, the Mediators, as well as CSD-ABPI from participation and responsibility in any judicial dispute that may exist or be initiated by the participants in the procedure administered by CMed-ABPI.

6.4. The documents provided for in articles 6.1, 6.2 and 6.3 will be digitally archived by the secretariat, with due regard for the confidentiality protected under art. 10.2 of this Regulation

6.5. The mediation meetings will preferably be held jointly, with the participation of the Parties and the Mediators, being possible the holding of private meetings (caucus), in the cases where the case requires and at the discretion of the Mediators.

6.5.1. The participation of the Parties in the meetings is essential. In case of impossibility of face-to-face participation by the interested Party itself or by Parties with legal personality, they must be represented in the procedure by someone who has proven knowledge of the facts, powers to settle, make and sign agreements, receive and give discharge.

6.6. The Parties and their representatives may be assisted by legal counsel at the mediation meetings, and it is recommended to consult such professionals regarding the legal aspects and questions involving the issues treated in the mediation. In any case, when participating in the mediation procedure, the lawyers must sign the Mediation Agreement and the confidentiality agreement contained therein.

6.6.1. If only one of the Parties is assisted by counsel at the mediation meetings, the Mediator will give the other Party the opportunity to appoint counsel to assist it if it so desires.

6.7. A minimum of ten (10) hours of the Mediators will be considered, not including the hours arising from the first mediation meeting. If it becomes necessary to extend the duration of the procedure, additional hours will be agreed upon by the Parties for the conduct of the procedure, charged according to CMed-ABPI’s Table of Costs and Mediator Fees and the report of hours spent by the professionals involved in the case.

7.1. If the mediation results in an agreement between the Parties, the Mediators, together with the Parties and their respective attorneys, if applicable, will draft a Statement of Agreement, observing the legal requirements.

7.2. A copy of the Term of Agreement will be physically and digitally archived at CMed-ABPI for the record and warranty of the Parties.

7.3. Mediation is voluntary, so if any of the Parties, at any time, expresses its disinterest in participating in the procedure, it will be terminated by CMed-ABPI and/or by the Mediators in charge, and the Executive Secretariat will inform the other Party, if applicable, of the non-continuity of the procedure.

7.4. Mediation may be terminated at any time by the Mediators or by the Parties, jointly o

8.1. Any communication between CMed-ABPI and the Parties, as well as their attorneys, if applicable, will be made by electronic means, and it is possible to use mail with Acknowledgement of Receipt, upon request or express manifestation of the Parties in this sense.

8.1.1. The letter of invitation, provided for in Article 3.2, will be sent to the Parties by electronic and postal means with Acknowledgement of Receipt, to all addresses informed or confirmed by the requesting Parties.

8.2. The Parties should avoid exchanging information about the content of the mediation via e-mail, letter, or any other means of communication.

8.3. No document generated during mediation, with the exception of any document validated and signed by the Parties and expressly provided for, may be used in any other context.

8.4. Mediation may take place through face-to-face meetings or through any form of long-distance communication, such as videoconferencing and telephone, in which case the Parties agree to preserve the confidentiality and secrecy of the conversation and to be responsible for any damage that this breach of secrecy may cause.

8.5. The mediation procedure will be concluded within one hundred eighty (180) days, as from the signature of the Mediation Minutes, and this term may be extended by mutual agreement of the Mediators and the Parties.

8.5.1. In the case of mediation resulting from judicial proceedings, the applicable legal conditions will be observed.

8.6. The time limits in this Regulation are counted in calendar days from the date of receipt of the notification, subpoena, or communication.

8.7. If the due date falls on a day when CMed-ABPI is closed, the time limit will be extended to the next business day.

9.1. The Table of CMed-ABPI Costs and Mediator Fees (“Table”) to be applied by CMed-ABPI is available on the Chamber’s web site and will be revised periodically.

9.2. CMed-ABPI will condition the establishment of the proceedings to the presentation of the proof of payment of the initial administration fee, to be attached to the request for the establishment of mediation submitted by the requesting Party. After the first mediation meeting, subject to the provisions of the Mediation Minutes and the CMed-ABPI Fee Schedule, a semi-annual administration fee and minimum fees for the Mediators are due.

9.2.1. The initial administration fee is due once the initiation of the procedure has been requested. Its payment will be borne in full by the Party requesting the mediation, and the other fees, costs and charges will be borne equally by the Parties or in the manner set forth in the Mediation Minutes.

9.2.2. The initial administration fee includes the initial administration and meetings prior to the signing of the Mediation Agreement, up to two (02) hours.

9.2.3. Should the Parties require additional time and new meetings to sign the Mediation Agreement, the additional first meeting fee will be due after the expiration of the two (02) hours of meetings prior to the signing of the Mediation Agreement, included in the initial administration fee, as per article 9.2.2 supra. The payment of this Additional Fee will be equally prorated by the Parties, unless otherwise provided.

9.2.4. If the Parties choose Mediators external to the CMed-ABPI Mediators, the semi-annual administration fee will correspond to double the value foreseen herein.

9.2.5. If the Parties communicate the option for an external Mediators to the CMed-ABPI staff after making the first payment of the semi-annual administration fee, the difference will be due, and the Parties must make the payment and present the respective receipt, before continuing the mediation.

9.2.6. The initial administration fee, the semi-annual administration fee, and the additional first meeting fee are non-compensable and non-refundable. The Management Fee will be due semi-annually, regardless of the number of months used.

9.3. After the first mediation meeting has been held and the Parties have accepted the procedure, the Parties must prove to CMed-ABPI the payment of the semi-annual administration fee and of the ten (10) minimum working hours of the mediator, so that the mediation can proceed.

9.3.1. The mediator’s minimum hours will be borne equally by the Parties or as otherwise agreed in the Mediation Minutes.

9.3.2. The mediator’s fees correspond to an hour of work per professional. In the case of mediation conducted by more than one Mediator, pursuant to Article 3.2.4, the hours will be computed considering the number of professionals appointed to act in the case.

9.4. An expense fund will be constituted in favor of CMed-ABPI equally by the Parties or in the manner set forth in the Mediation Minutes, so that any expenses eventually incurred by the Mediators and by CMed-ABPI due to the ongoing procedure, such as copies, mail, translation, travel costs, etc. will be deducted from such amount.

9.4.1. If the mediation meetings are conducted in a place other than one of the ABPI’s units or if, due to his domicile, the mediator must travel, the Parties will also advance expenses related to lodging, travel, rental of premises, meals, and any other related costs.

9.5. Once the procedure is closed, CMed-ABPI will account to the Parties for the amounts paid, requesting the complementation of funds, if applicable, or returning any remaining balance.

9.6. In case of interruption of the mediation procedure, CMed-ABPI will reimburse the Parties for the anticipated amounts subject to reimbursement according to the Table, namely, the hours that exceed the minimum hours not worked by the Mediators and the balance constituted and eventually existing as anticipated expenses.

9.7. The eventual reimbursement or collection will obey the same proportion of the payments stipulated in the Mediation Agreement.

10.1. All the documents that may have been presented during the mediation to the Mediators must be returned or eliminated at the end of the mediation, except for the formal documents that involve the CMed-ABPI procedure.

10.2. The mediation process is confidential, except in those cases where the applicable law makes an exception, the nature of the conflict, the interests at stake, and/or those involved in the procedure so require, pursuant to art. 6.2.g.

10.3. The members of CMed-ABPI, the Mediators, the Parties themselves, their attorneys, and other participants are forbidden to disclose any data, proposals or other information related to the mediation proceedings to which they have access as a result of their function or participation in the mediation process.

10.3.1. None of the persons acting in mediation will be called upon or compelled to disclose such information, even in arbitration and judicial proceedings.

10.4. The Parties authorize the use of the mediation content for academic purposes, scientific publications and statistical surveys, always preserving the confidentiality of the names of the Parties and of the subjects and aspects of the case that may make it identifiable.

11.1. This Regulation will come into force on the date of its approval by the ABPI’s Board of Directors, and will remain in force indefinitely.

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