Mediation On-Line
A Newsletter from ADR Resources
http://adrr.com/adr9/043.htm
Volume 4, No. 8.
From: Ethesis@aol.com (Ethesis)
To: SMarsh@adrr.com
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Mediation On-Line
A Newsletter from ADR Resources
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Greetings:
I should repeat that I am still very, very pleased to have Bob Marquardt's essay at http://adrr.com/adr4/sdo.htm. Settling Disputes Online: Just Another Tool, or are Negotiators, Mediators and Arbitrators Approaching Extinction? is thoughtful, intelligent and well worth reading. I am also pleased to have an excerpt from Elgin's book at http://adrr.com/aa/ -- replacing the previous user of the /aa/ directory.
I have also added some material on Supplement: Setting Up Your Own Dispute Resolution Program at http://adrr.com/adr9/043a.htm. Well worth the visit if you are considering setting up a conflict management or dispute resolution program..
Finally, the season of US News & World Report rankings and such is upon us again. While they don't rate all dispute resolution programs, just those in law schools, I did have a wonderful debate with Jim Levin about which law school had the best program. He didn't change my mind, I still think it is University of Missouri (Columbia) -- and so does he -- but I did get a better look at the program they use for *teaching* (and let me emphasize the teaching part of that statement) ADR to students. I am more impressed than ever, especially with the way that Missouri has made it easy to understand and replicate their program. I'm still trying to get a copy of the Instructor's Manual for Dispute Resolution and Lawyers that came out of the Missouri experience, so if anyone has a copy they could give me, I would be grateful.
I like the integrated teaching snippets approach (with set focus and materials) and I like the thought of making follow-up available. It is the sort of thing that makes students into better lawyers. If only more of law school had that kind of direct, integrated, teaching approach ...
I found more background information on Mosten Mediation Centers. MMC is a
corporation with a small number of investors that include stockbrokers,
therapists, and lawyers. They are recruiting mediators. Mosten
Mediation Centers now has a GSA contract and a joint venture with www.telelaw.com
for national telephone mediation--they very much need more mediators throughout
the country as well as trainers--particularly in workplace. Contact at
www.mostenmediation.com or 818-380-0456.
The Recommended Book of the Month:
Well, I'm actually recommending volume 50, Number 4 of the Florida Law Review. Everything you needed to know about setting up an ADR curriculum in a law school -- but did not know that you needed to ask.
I'm also recommending Letters from Law School by Lawrence Dieker, Jr., an account of Dieker's first semester in his second year as a top 25% student in a first tier (top 50, rather than the old "top 14" which made up the "top 10" list) law school. It makes good reading for the proper feel that many have while in law school and should help you decide if law school is for you. If you know someone who is in their second year of law school, Letters from Law School will help you understand them better than about anything else I can recommend.
Finally, I am recommending Neil Rackham's SPIN Selling (Situation-Problem-Implication-Need). Indentifying needs, and helping others to identify needs, is a very important part of resolving disputes. Rackham's book provides another perspective that can help many professionals sharpen that skill.
Interesting new Mediation & ADR web sites
Educational Programs:
I am completely revising my "introduction to ADR/introduction to mediation" class outline. I currently am focusing on traditional "40 hour" training for the start, with class assignments of simulation and observation time and five class room hours assigned to "self mediating" conflicts (portions of Dan Dana's book). Makes for both a class that gives students a good understanding of the word "mediation" and also brings the concept home to things they can apply in day-to-day life. I will put the class outline and materials on-line when I have it finished.
I'm also reworking my "basic skills" class materials -- after a friend and a fellow-lawyer pointed out that while I may think people need to understand Satir modes, Miller's law (and Elgin's corallary), sensory modes and the like, as well as needing some solid facilitation training to understand what mediation expands into (there are many times when facilitation is really what is needed, not mediated negotiation) -- calling it "basic" skills or "essential" skills is not as attractive to students as calling it an "advanced" skills class. Since the textbook I was using is no longer in print, I need to rework the materials anyway.
News and Book Reviews/Books/Periodicals
I've kind of wedged all of them into the "recommended" section this month.
Current Issues
I found more background information on Mosten Mediation Centers. MMC is a corporation with a small number of investors that include stockbrokers, therapists, and lawyers. They are recruiting mediators. Mosten Mediation Centers now has a GSA contract and a joint venture with www.telelaw.com for national telephone mediation--they very much need more mediators throughout the country as well as trainers--particularly in workplace. Contact at www.mostenmediation.com or 818-380-0456.
From the (infamous) Law Specialties Rankings: Dispute Resolution
1. University of Missouri–Columbia
2. Pepperdine University (CA)
3. Harvard University (MA)
4. Ohio State University
5. Hamline University (MN)
Willamette University (OR)
7. Cardozo-Yeshiva University (NY)
8. Georgetown University (DC)
University of Texas–Austin
10. Stanford University (CA)
11. Columbia University (NY)
12. Northwestern University (IL)
Ok, of this group, the majority are universities that follow a variant of "the Missouri" plan. Willamette, Pepperdine, Stanford and Columbia all have historic ADR roots (remember I predicted that Columbia (NY) would be in this ranking). UT has significant funding and an ADR center. I'm kind of surprised that Texas Tech (in Lubbock) isn't on the list, it has a strong ADR and Negotiations program, but it may not have gotten the right kind of national attention.
About Missouri, I received the following e-mail comment from a foriegn student had asked my advice:
"I've seen the Missouri University Curriculum and it's my dream come true! My deadline application to a Fulbright grant is 25th June, so I have to work fast. ..."
I believe that is the last word in my argument with Jim Levin <g>.
Submissions to adrr.com
As always, I am interested in any submissions or articles anyone would like to have posted on the web -- and I am glad to be able to point them out in this newsletter. I prefer to post material as you have written it, with no editorial changes by myself.
With my best regards, I remain,
Sincerely yours,
Stephen Marsh
http://adrr.com/adr9/043.htm
Additional material is included in the on-line version.
If you are curious where the term/name Ethesis comes
from, visit
http://adrr.com/living/ethesis.htm
Back issues at http://adrr.com/adr9/mediation.htm
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Post Script (the "extra" material for the on-line version).
Subj: Arbitration Act (Brazil)
BRAZILIAN ARBITRATION ACT
Law nº 9307, 23 September 1996
- Regarding Arbitration -
THE PRESIDENT OF THE REPUBLIC
Let it be known that the National Congress decrees and I ratify the
following law:
CHAPTER I
GENERAL PROVISIONS
Article 1 - Persons capable of entering into contracts will be able to avail
themselves of arbitration in order to resolve disputes relating to freely
transferable property rights.
Article 2 - Arbitration may be in law or ex aequo et bono, depending on the
will of the parties.
§ 1 - The parties may freely choose the rules of law to be applied in
arbitration, as long as there is no violation of good customs and public
order.
§ 2 - The parties may also stipulate that the arbitration be based on the
general principles of law, customs and usages and the rules of international
trade.
CHAPTER II
THE ARBITRATION AGREEMENT AND ITS EFFECTS
Article 3 - The parties can submit their disputes to arbitration by virtue
of the arbitration agreement, being such the arbitration clause and the
submission agreement. (compromis)
Article 4 - An arbitration clause is an agreement by which the parties to a
contract undertake to submit to arbitration the disputes which may arise
with respect to that contract.
§ 1 - The arbitration clause shall be in writing and it can be inserted in
the main contract or in a document to which it refers.
§ 2 - In adhesion contracts, the arbitration clause shall not be deemed to
have efficacy unless the adherent takes the initiative to initiate
arbitration proceedings or agrees expressly to its initiation as long as it
is in writing or in an attached document or in bold, with a signature or
endorsement made specially for this clause.
Article 5 - When the arbitration clause makes reference to the rules of a
particular arbitral institution or specialized entity, the arbitration shall
be instituted and conducted in accordance with such rules, unless otherwise
agreed by the parties.
Article 6 - In the event of absence of provision as to the method of
initiating the arbitration, the interested party shall serve the other party
with a written notice by registered letter or by any other means which
provides a record of delivery, calling for the other party to appear at a
set date, time and place in order to sign the compromis.
Sole Paragraph: Where the party to whom notice is served fails to appear or
refuses to sign the compromis, the other party can, pursuant to article 7 of
this law, seek assistance from the Judicial Court which originally would
have had jurisdiction to hear the case.
Article 7 - Where there is an arbitration clause but one of the parties
shows resistance as to the initiation of arbitration, the interested party
may request a subpoena for the other party to appear in court in order to
prepare the compromis, with the judge designating a special hearing for such
a purpose.
§ 1 - The claimant shall indicate precisely the object of the arbitration,
including the document which contains the arbitration clause.
§ 2 - The judge, previously to the signature of the compromis, shall try to
bring the parties into a settlement. Failing such agreement, the judge shall
lead the parties to approve, by mutual agreement, the compromis.
§ 3 - When the parties fail to agree as to the terms of the compromis, the
judge, after hearing the defendant at the same hearing or within 10 days
therefrom and pursuant to articles 10 and 21 § 2º of this law, subject to
the provisions of the arbitration clause, shall decide the issue.
§ 4 - If the arbitration clause has no provision as to the appointment of
arbitrators, it will be the judge's task, after having heard the parties, to
rule with respect to this, having the option of nominating a sole arbitrator
for the resolution of the conflict.
§ 5 - Should the claimant, without reasonable excuse, fails to appear at the
hearing to determine the preparation of the compromis, the proceedings shall
be deemed to have been terminated without entering into the merits.
§ 6 - Should the defendant fails to appear, it will be up to the judge,
having heard the claimant, to rule with respect to the content of the
compromis, nominating a sole arbitrator.
§ 7 - The judge's decision shall be deemed to be the compromis itself.
Article 8 - An arbitration clause which forms part of a contract shall be
treated as an agreement independent of the other terms of the contract. A
decision that the contract is null and void shall not entail ipso jure the
invalidity of the arbitration clause.
Sole paragraph - It shall be up to the arbitrator to decide on its own
motion or per request of the parties, the issues concerning the existence,
validity and efficacy of the arbitration agreement and of the contract which
contains the arbitration clause.
Article 9 - The compromis is the convention by which the parties submit an
existing dispute to arbitration by one or more persons, either judicially or
extra-judicially.
§ 1 - The judicial compromis shall be held on the file before the court or
tribunal where the suit is pending.
§ 2 - The extra-judicial compromis will be deliberated under private
signature, signed by two witnesses or by a public notary.
Article 10 - The following shall be mandatory in the compromis:
I - the name, profession, marriage status and the place of residence of the
parties;
II - the name, profession, marriage status and the place of residence of the
arbitrator or arbitrators, or, if applicable, the identification of the
institution to which the parties have entrusted the appointment of the
arbitrators;
III - the matter which will be the object of the arbitration; and
IV - the place where the award shall be rendered.
Article 11 - The compromis may also contain:
I - the place or places where the arbitration will be held;
II - if the parties so agree, the provision authorizing the arbitrators or
arbitrators to decide ex equo et bono;
III - the time period in which the award shall be made;
IV - an indication of the national law or corporate rules applicable to the
arbitration, if agreed upon by the parties;
V - a statement about the responsibility of the fees and of the arbitration
expenses; and
VI - the setting of the fee of the arbitrator or arbitrators.
Sole paragraph - If the arbitrators' fees are mentioned in the compromis,
this will be interpreted of being enforced as such. In the absence of such
provision, the arbitrator will request the state judge who would originally
have jurisdiction to hear the case, to fix them by way of judgement.
Article 12 - The compromis shall be deemed to be terminated:
I - should any of the arbitrators, before accepting the nomination, refuse
to act as long as the parties have expressly declared that they will not
accept a substitute;
II - should any of the arbitrators die or become unable to act as such as
long as the parties have expressly declared that they will not accept a
substitute; and
III - should the time period referred to in article 11 (III) expires as long
as the interested party has notified the arbitrator - or the chairman of the
arbitral tribunal - giving him a 10 day-notice for rendering and presenting
the award.
CHAPTER III
THE ARBITRATORS
Article 13 - Any person of legal capacity who enjoys the confidence of the
parties may be appointed as arbitrator.
§ 1 - The arbitral tribunal shall be composed of an uneven number of
arbitrators. The parties are free to appoint substitute arbitrators.
§ 2 - When the parties have agreed on an even number of arbitrators, the
arbitrators are deemed to be entitled to appoint an additional arbitrator.
Failing such agreement, the parties shall apply to the court which
originally would have heard the case in order to have the arbitrator's
nomination, being applicable, where pertinent, the provisions of article 7
of this law.
§ 3 - The arbitrator(s) shall be appointed by any method agreed by the
parties or through the rules of the arbitral institutional or specialized
entity chosen by them.
§ 4 - Once several arbitrators have been appointed they shall elect, by
majority, the chairman of the arbitral tribunal. Should there be no
consensus, the eldest shall be designated the chairman.
§ 5 - The arbitrator or the chairman of the arbitral tribunal may designate
a secretary who may be one of the arbitrators.
§ 6 - In the performance of his duty, the arbitrator shall proceed
diligently, efficiently, independently and shall be free and remain free
from bias.
§ 7 - The arbitrator or the arbitral tribunal may order the parties to
advance the funds for expenses and services deemed necessary.
Article 14 - Persons are disqualified from serving as arbitrators should
they have with one of the parties or with the subject-matter of the
arbitration any relationship falling into the cases of being disqualified as
a state judge and, where applicable, they should be held up to the same
duties and responsibilities as are set forth in the Code of Civil Procedure.
§ 1 - A person appointed to serve as arbitrator, before accepting the case,
shall disclose any circumstances likely to give rise to justifiable doubts
as to his impartiality or independence.
§ 2 - A party may challenge the appointed-arbitrator only for reasons of
which he becomes aware after the appointment has been made, unless:
I - the arbitrator was not appointed directly by the party; or
II - the reason for the challenge was known after the arbitrator's
appointment.
Article 15 - The party who intends to challenge the arbitrator shall,
pursuant to article 20, file the respective plea directly to the arbitrator
or the chairman of the arbitral tribunal, setting forth his reasons and
presenting pertinent evidence.
Sole paragraph - When the challenge is accepted, the suspect or disqualified
arbitrator shall be removed and shall be replaced in the manner set forth in
article 16 of this law.
Article 16 - If the arbitrator should excuse himself before accepting the
nomination, or after the nomination he dies, becomes unable to carry out his
duties or is removed, the substitute indicated in the compromis, if there is
one, shall serve as substitute.
§ 1 - In the case that there is no substitute indicated for the arbitrator,
the provisions of the rules of the arbitral institution or specialized
entity shall apply, if the parties have invoked them in the arbitration
agreement.
§ 2 - In the absence of any provision in the arbitration agreement and the
parties fail to reach an agreement as to the appointment of the substitute
arbitrator, the interested party shall proceed in the manner set forth in
article 7 of this law, save when the parties have expressly stated in the
arbitration agreement that they will not accept a substitute arbitrator.
Article 17 - The arbitrators, when in the exercise of their duties, or in
support of these, shall be considered comparable to public officials for the
purpose of criminal legislation.
Article 18 - The arbitrator acts as judge of fact and law and the award
rendered is not subject to judicial review, appeal or ratification.
CHAPTER IV
THE ARBITRAL PROCEEDINGS
Article 19 - The arbitration shall be deemed to be initiated when the
nomination is accepted by the arbitrator, in the case that there is only
one, or by all, if there are several.
Sole paragraph - Once the arbitration is initiated and should the arbitrator
or the arbitral tribunal feel that there is the need to clarify some issues
presented in the arbitration agreement, an addendum shall be formed, in
conjunction with the parties and signed by all, which will then be a part of
the arbitration agreement.
Article 20 - The party which intends to argue questions related to
competence, suspicion or disqualification of the arbitrator or arbitrators,
as well as the nullity, invalidity or inefficacy of the arbitration
agreement, must do so at the first opportunity, after the initiation of the
arbitration.
§ 1 - When the challenge is accepted the arbitrator shall be substituted
under the terms of article 16 of this law; once is declared that the
arbitrator does not have jurisdiction or when is recognized the nullity,
invalidity or inefficacy of the arbitration agreement, the parties shall be
sent to the competent judicial body to rule on the matter.
§ 2 - When the arguments are not accepted, the arbitration shall proceed
normally, subject however to review of that decision by the competent
judicial body, at the time a petition for setting aside the award is filed,
as provided by article 33 of this law.
Article 21 - The parties are free to agree on the procedure to be followed
by the arbitral tribunal in conducting the proceedings which may follow the
rules of an arbitral institution center or specialized entity, still
permitting the parties to delegate to the arbitrator himself or the arbitral
tribunal the power to regulate the proceedings.
§ 1 - Failing such agreement, the arbitral tribunal shall conduct the
arbitration in such a manner it considers appropriate.
§ 2 - During the arbitration proceedings, there shall always be respect for
the principles due process of law, equality of the parties, impartiality of
the arbitrator and that of his judicial discretion.
§ 3 - The parties are free to postulate before the arbitral tribunal in
person or by way of an attorney and the right to designate who shall
represent or assist them in the arbitral proceedings shall always be
respected.
§ 4 - It shall be up to the arbitrator and the arbitral tribunal, at the
commencement of the proceedings, to attempt the reconciliation of the
parties, applying, where pertinent, article 28 of this law.
Article 22 - The arbitrator or the arbitral tribunal, at the request of the
parties or on its own motion, may take depositions of the parties, hear
witnesses, determine the carrying out of expert examinations and any other
evidence it may deem appropriate.
§ 1 - The deposition of the parties and of the witnesses shall be taken at
the time, place and date previously communicated in writing, and shall be
reduced to a written transcript, signed by the deponent or at his request,
and by the arbitrators.
§ 2 - In case of absence without just cause from the personal deposition
session the arbitrator or the arbitral tribunal shall take into
consideration the behavior of the party at fault on rendering its award; if
the absence is on the part of a witness, the arbitrator or the arbitral
tribunal may, under the same circumstances, with proof of the existence of
the arbitration agreement, request a judiciary authority to subpoena the
reluctant witness.
§ 3 - Default by a party shall not prevent the arbitral award from being
made.
§ 4 - Subject to paragraph 2, the arbitrators may request to the judicial
body that would have originally been competent to hear the case, to grant
interim measures of protection.
§ 5 - If, during the course of the arbitral proceedings, an arbitrator is
replaced, the repetition of evidence already presented will be at the
discretion of the substitute.
CHAPTER V
THE AWARD
Article 23 - The award shall be made during the time frame stipulated by the
parties. If no agreement is stated, the time period for the rendering of the
award shall be six months beginning with the commencement of the arbitration
or the substitution of the arbitrator.
Sole paragraph - The parties and the arbitrator or the arbitrators, by
mutual agreement, may extend the stipulated time period.
Article 24 - The award shall be expressed in a written document.
§ 1 - When there are several arbitrators, the decision shall be by majority
of vote. Should there be no majority agreement, the vote of the chairman of
the arbitral tribunal shall prevail.
§ 2 - The arbitrator who dissents from the majority may, if he so wishes,
state his vote separately.
Article 25 - If during the course of the proceedings, a controversy arises
regarding rights not freely transferable and once is verified that the award
shall depend on whether they exist, the arbitrator or the arbitral tribunal
shall stay the proceedings and shall send the parties to the competent
authority of the judiciary branch.
Sole paragraph - Once the prejudicial question is resolved and the judgement
is placed on the record, the arbitration will continue normally.
Article 26 - The mandatory requirements of the arbitral award are:
I - a report containing the names of the parties and a summary of the
dispute;
II - the grounds for the decision where questions of fact and law shall be
analyzed, mentioning expressly whether or not the arbitrators are deciding
the case on equity basis;
III - the opinion wherein the arbitrators shall resolve questions that are
submitted to them and shall establish the time frame for the compliance with
the decision, if applicable; and
IV - date and place where it was rendered.
Sole paragraph - The arbitral award shall be signed by the arbitrator or all
arbitrators. It shall fall on the chairman of the arbitral tribunal, if one
or more arbitrators cannot or do not wish to sign the award, to certify this
fact.
Article 27 - The arbitral award shall decide the responsibility of the
parties regarding costs and expenses for the arbitration, as well as fees
due to bad-faith conduct, if this be the case, following the provisions of
the arbitration agreement, if existent.
Article 28 - If during the course of arbitral proceedings, the parties
arrive at an agreement about their dispute, the arbitrator or arbitral
tribunal may, at the requested of the parties, state such a fact by means of
the arbitral award, which shall comply with the requirements of article 26
of this law.
Article 29 - The rendering of the arbitral award marks the end of the
arbitration; the arbitrator or the chairman of the arbitral tribunal must
send a copy of the decision to the parties by mail or other means of
communication, with a certificate of receipt, or if delivered personally,
with an actual receipt.
Article 30 - Within a period of five days as from the receipt of the
notification or personal knowledge of the arbitral award, the interested
party, having communicated the other party, may request the arbitrator or
the arbitral tribunal to:
I - rectify clerical errors which may affect it;
II - clarify any obscurity, doubt or contradiction in the award or to
pronounce it regarding any omitted point that should have been dealt with in
the decision.
Sole paragraph - The arbitrator or the arbitral tribunal shall decide within
10 days, amending the arbitral award and notifying the parties pursuant to
article 29.
Article 31 - The arbitral award shall produce as to the parties and their
successors, the same effects as a judgement rendered by the court and,
should it be condemnatory, it will constitute a valid document to commence
an execution process.
Article 32 - An arbitral award is null and void if:
I - the compromis is null and void;
II - it was made by someone who could not have served as an arbitrator;
III - it does not contain the requirements stated on article 26 of this law;
IV - it was rendered outside the limits established in the arbitration
agreement;
V - it does not resolve the entire dispute submitted to arbitration;
VI - it is proved that it was delivered in such a way that constitutes a
breach of duty, passive corruption or graft;
VII - it is rendered after its time limit has expired, with respect to
article 12, section III of this law; and
VIII - the principles covered by article 21, paragraph 2 of this law are not
respected.
Article 33 - The interested party may plead t the competent judiciary body
that the arbitral award be declared null, according to the cases foreseen in
this law.
§ 1 - The claim for nullity shall follow the requirements provided by the
Code of Civil Procedure and shall be filed within ninety days after the
receipt of the notification of the award or of its amendment.
§ 2 - The judgement which considers the claim valid:
I - shall decree that the award is null and void in cases covered by article
32, I, II, VI, VII, VIII;
II - shall determine that the arbitrator or the arbitral tribunal shall
render another award, in all other cases.
§ 3 - The ruling of the nullity of the arbitral award may also be challenged
by way of an action to stay the execution on the part of the debtor,
according to article 741 and subsequents of the Code of Civil Procedure, if
there is a judicial writ of execution on the judgement thereon.
CHAPTER VI
RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS
Article 34 - A foreign award shall be recognized and enforced in Brazil in
accordance with the international treaties with validity in the internal
legal system and, in the absence of that, strictly according to the terms of
this law.
Sole paragraph - A foreign award is considered to be one which has been
rendered outside of the national territory.
Article 35 - To be recognized or enforced in Brazil, the foreign award is
only subject to ratification ("homologation") by the Federal Supreme Court.
Article 36 - That which is set forth in articles 483 and 484 of the Code
Civil Procedure shall be applied to the homologation of foreign arbitration
judgements, where pertinent.
Article 37 - The homologation of a foreign award shall be requested by the
interested party, and requires the initial petition to contain the
indications of the procedural law, according to article 282 of the Code of
Civil Procedure, and must be prepared with:
I - the original of the arbitral award or duly certified copy authenticated
by the Brazilian consulate accompanied by the official translation;
II - the original arbitration agreement or a duly certified copy,
accompanied by an official translation.
Article 38 - Recognition or enforcement of an arbitral award may only be
refused when the defendant furnishes proof that:
I - the parties to the arbitration agreement were under some incapacity;
II - the arbitration agreement was not valid under the law to which the
parties have subjected it or, failing any indication thereon, under the law
of the country where the award was made;
III - it was not given proper notice of the appointment of an arbitrator or
the arbitral proceedings or was otherwise unable to present his case;
IV - the arbitral award was rendered beyond the limits of the arbitration
agreement and it was not possible to separate the exceeding part from that
which was submitted to arbitration;
V - the institution of the arbitration proceedings was not in accordance
with the compromis or the arbitration clause;
VI - the arbitral award has not yet become binding on the parties or has
been set aside or suspended by a court of the country where the arbitral
award was rendered.
Article 39 - The homologation for the recognition or the enforcement of a
foreign award will also be denied if the Federal Supreme Court finds that:
I - according to Brazilian law, the subject-matter of the dispute is not
capable of settlement by arbitration;
II - the recognition or enforcement of the award would be contrary to the
national public policy.
Sole paragraph - The effective citation of a party whose domicile is in
Brazil, within the framework of the arbitration agreement or of the
procedural law of the country where the arbitration was held, shall not be
considered an offence against national public policy, including the
admittance of a postal citation with unequivocal proof of receipt, as long
as it assures the Brazilian party reasonable time to exercise its right of
defense.
Article 40 - The denial of homologation for recognition or enforcement of a
foreign arbitral award due to formal defects does not prevent the interested
party from renewing his request once the defects presented to court are
cured.
CHAPTER VII
FINAL PROVISIONS
Article 41 - Articles 267, section VII; 301, section IX; and 584, section
III of the Code of Civil Procedure shall now contain the following text:
Art. 267..............
VII - by arbitration agreement.
Art. 301......
IX - arbitration agreement
Art. 584....
III - the arbitral award and the homologation decree for settlement or
conciliation.
Article 42 - Article 520 of the Civil Procedure Code shall now contain one
more section, with the following text:
Art. 520...
VI - judicial granting of a request to institute arbitration
Article 43 - This law will come into force sixty days after the date of its
publication.
Article 44 - The following articles are hereby revoked: articles 1.037 to
1048 of Law nº 3071 of January 1st, 1916, Brazilian Civil Code; articles 101
and 1072 to 1102 of Law nº 5869 of 11 January 1973, Code of Civil Procedure;
and other provisions to the contrary.
Brasilia, September 23, 1996; 175th of independence and 108th of the
Republic.
Fernando Henrique Cardoso
Nelson Jobim
(Published in the Official Gazette - DOU - 24 September 1996)
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This Website is by Stephen R.
Marsh
Contact Information at:
http://adrr.com/smarsh/