Articles written by Gabriel Jacintho

30/07/2010 Arbitration is progressing a lot in Brazil

Since Law No. 9307 of September 23, 1996, a lot has occurred on this subject matter. Many still do not know this procedure for settling conflicts, many do not believe in its reliability, others think that its costs are very high, but it s still an ongoing basis.
My evaluation of the arbitration tends not to be exempt, since I have close ties with the system for some time. I am a member of SP Arbitration – Chamber of Business Arbitration of São Paulo since its foundation on May 5, 2000. I ve acted as an arbitrator several times; I ve used the system twice, and currently am an expert assistant in the international proceedings in the ICC (International Court of Arbitration) in a claim in New York. Recently, I was invited to a new proceeding in a chamber that I consider the largest that we have today in Brazil, which is the CCBC (Chamber of Commerce Brazil-Canada).
I would like to make a comment, which may not be well accepted, about the resistance that many lawyers to whom I talk to still have on arbitration. Do not ask me why. Those who love and work in this field are still not many, but they are increasing. Most large law firms in Brazil already have their team of experts due to the growing demand of this type of work.
Since I cannot comment about the claims in which I acted as an arbitrator, I will write about the situations when I used arbitration proceedings to settle a fee dispute with a client. It is worth mentioning again that a good start is to always establish in any commercial contract, the famous "arbitration clause". For example: "Any dispute or controversy resulting from the interpretation or execution of the contract hereby shall be settled by means of arbitration by one or more arbitrators appointed pursuant to the Arbitration Rules of “SP Arbitral” – Chamber of Business Arbitration of São Paulo, located at Av . Tiradentes No. 960 - 3rd floor - Bairro da Luz - Centro – Zip Code: 01102-000, an entity that manages the arbitration pursuant to the Rules hereby mentioned. All our companys contracts have this clause.
Well, a dispute arose between a client and I over outstanding amounts and he simply disregarded me. I therefore, took the litigation to arbitration. Incredibly, the counsel of the other party ignored the arbitration clause and considered that the matter should be taken to a regular legal court. The judge immediately overruled the file, arguing that it should be settled through arbitration. At this moment the proceedings were ongoing. I can assure you that if this claim was proceeding through a regular legal court, it would not have been settled by now. Since the respondent party cannot appeal to the decision, the client was enforced to settle the debt.
I am now a great fan of the system.
The speech in defense of the arbitration proceedings made by the Minister of Supreme Court of Justice (STJ) and adviser of the SP Arbitration, Fatima Nancy Andrighi, made at the inauguration of our Board is still unforgettable. Brazil would certainly be a better country with other citizens such as the minister. What a renowned and intelligent person!
Therefore, to wind up, I would suggest to everyone to always consider the possibility of settling any trade dispute through arbitration.

* GABRIEL DE CARVALHO JACINTHO is an accounting businessman and arbitrator of the accounting class in the Business Arbitration Chamber of São Paulo (Caesp).

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