Wednesday, November 08, 2006

What does Brazilian law say about the appointment of the arbitral tribunal?

As a principle, the arbitral tribunal is appointed in accordance with the parties’ agreement.

Due to the recognition of the principle of party autonomy, the Brazilian Arbitration Act (“BAA”) gives to the parties broad freedom to —by mutual agreement— either (i) establish their own rules for the appointment of arbitrators, or (ii) adopt any institutional arbitral rules they may chose (Section 13(3) of the BAA). It is important to highlight that Section 13(1) of the BAA establishes that the number of arbitrators must be uneven.

In the absence of such parties’ agreement, or if the arbitration agreement is silent, the concerned party may apply to the court with jurisdiction over the place of arbitration to appoint the arbitrator. The court is supposed to follow —to the extent possible— the procedure foreseen in Section 7 of the BAA.

Section 7(4) of BAA establishes that “if the arbitration clause fails to provide for the appointment of arbitrators, the court, after hearing the parties, shall rule thereon, being allowed to appoint a sole arbitrator to decide the dispute”.

Please, don't hesitate to comment or send me an e-mail.

No comments: