A partner in the litigation and arbitration team, André focuses on national and international arbitration, as well as civil and multi-jurisdictional litigation. Experienced in the area of credit, he represents creditors in company restructurings. As an arbitration specialist, André joined Brazil’s Federal Senate Committee in 2013 to amend arbitration legislation and draft a law on mediation. He is the coordinator of a postgraduate course called Commercial Arbitration and Consensual Methods for Conflict Resolution at the Pontifícia Universidade Católica do Rio de Janeiro (PUC-RJ) and a law professor at the same institution. André is also a director of the Brazilian Committee on Mediation and Arbitration (CBAr) and was a foreign associate at Baker Botts LLP in Washington, DC in 2006.
Master of Laws (LL.M.) – Columbia Law School, New York
Postgraduate Degree in Civil and Constitutional Law – Universidade do Estado do Rio de Janeiro (UERJ)
Bachelor of Laws – Universidade Candido Mendes (UCAM)
Chambers Brazil (formerly Chambers Latin America) – Tax (2010 – 2021)
Euromoney Expert Guides Tax Women in Business Law (2016 – 2017, 2020 – 2021)
IFLR 1000 Financial and Corporate – Notable practitioner (2018 – 2022)
International Tax Review – Women in Tax Leaders (2016 – 2022)
Latin Lawyer 250 – Tax (2020 – 2021)
The Legal 500 – Tax (2014-2016, 2018 – 2019)
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Published the decree that rules the arbitration involving Brazilian Public Administration in the port and transportation sectors
On September 23, 2019, Decree No. 10,025/2019 was published on Federal Gazette, which rules the arbitration to settle disputes involving Federal Government or its entities, public-utility companies, sub-public-utility companies, permittee, lessee, authorizing company or port operators, under port, road, rail, waterway, and airport transportation sectors. The abovementioned Decree revokes the Decree No. 8,465/2015 that used to regulate the arbitration proceeding under the port sector.
The rule deals with various topics, such as arbitration subject, standards of arbitral proceedings and arbitration agreement, fixing guidelines applicable to the arbitration clause and arbitral submission in the partnership agreements. The Decree also sets out deadlines and costs of the proceeding, as well as rules the accreditation and choosing of arbitration chamber and arbitrators, among others matters.
Among the main provisions of the Decree, the following stand out:
• Extension of the definition of “waivable property right”, including: (i) issues related to the economic and financial rebalancing of contracts; (ii) the calculation of indemnities arising from the termination or from the transfer of the partnership agreement; and (iii) the breach of contractual obligations by any party;
• The determination that the arbitration will be held in Brazil, in Portuguese and awarded according to the Brazilian law;
• It will be exclusively admitted the arbitration at law. Arbitration in equity is forbidden.
• The determination that the arbitration will be, preferably, institutional, being admitted the arbitration ad hoc if justified;
• The extension of arbitration rules for the road, rail, waterway and airport sectors (in addition to the port sector previously regulated by Decree No. 8,465/2015);
• The possibility to maintain the necessary information confidential for the preservation of trade secret, as well those considered confidential by Brazilian law;
• The unappealableness of the administrative decision challenged in the arbitration proceeding. The arbitration award is considered final and definitive;
• The determination that the arbitral chamber chosen to settle disputes should be previously credentialed by the Office of the General Counsel for the Federal Government;
• The possibility of agreement by the parties on other alternative dispute resolution mechanisms, including mediation and direct negotiation with the public administration to be foreseen in the partnership agreements;
• The determination that the arbitration clause, when stipulated, will be set out prominently in the contract, such as the information if the arbitration will be institutional or ad hoc;
• The provision that, in case of absence of arbitration clause, the Brazilian Public Administration will analyze previously the advantages and disadvantages of arbitration in the case before celebrating the arbitration agreement;
• The preference of using arbitration in cases with eminently technical issues in dispute and where the delay in settling the dispute may (i) harm the proper provision of the service or the operation of the infrastructure, and (ii) inhibit investments considered as priorities;
• The provision that the arbitral award shall be issued within 48 months;
• The provision that the costs and expenses related to the arbitration proceeding will be paid in advance by the contracted party; and
• That the payment of arbitral award by the Federal Government or its entities will be made by registered warrants or a small amount request.
The provisions of the Decree shall not apply to arbitrations which have been subject to an arbitration agreement signed before its effective date unless otherwise agreed by the parties.
The new rule, by extending the use of arbitration to the entire transportation sector, before limited to the port sector, ratifies the arbitration as a method of resolving disputes against the public administration, assuring procedural promptness and neutrality, which will create a more attractive environment to the investor.
For more information, please contact the Litigation and Arbitration and Infrastructure Practice partners.
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