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Our professionals

Partner

Flávio Spaccaquerche

Flávio Spaccaquerche
55 21 3231 8225 flavio.spacca@mattosfilho.com.br Rio de Janeiro
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Experience

Flávio is experienced in litigation and arbitration, advising and representing clients in court proceedings and in domestic and international arbitrations. He assists clients from a variety of economic sectors, focusing especially on oil & gas and construction disputes, and other infrastructure-related matters. 

 

As an arbitration specialist, he has served as a member of the ICC Young Arbitrators Forum for Latin America and is a member of the ICC arbitrator nomination committee for the Brazilian National Committee. He is a member of the American Chamber of Commerce for Brazil’s Mediation and Arbitration Center Advisory Council,  and the arbitration director of the Brazilian Center for Mediation and Arbitration (CBMA).

Education

Bachelor of Laws, Pontifícia Universidade Católica de São Paulo  (PUC-SP)

Specialization in Consumer Relations Law, Pontifícia Universidade Católica de São Paulo (PUC-SP)

Master’s degree in International Economic Law, Université Panthéon-Sorbonne, France

Recognitions

Análise Advocacia 500 – Arbitration (2018-2021), Civil (2020-2021), Electric Power (2019-2020), Machinery & Equipment (2018), Oil & Gas (2020), and Rio de Janeiro (2019-2020);

Chambers Global – Dispute Resolution: Arbitration (2018-2022);

Chambers Brazil (formerly Chambers Latin America) –Dispute Resolution: Rio de Janeiro (2022), Dispute Resolution: Arbitration (2019-2022);

Latin Lawyer 250 – Arbitration (2020-2021) and Litigation (2017);

The Legal 500 – Dispute resolution (2019-2021);

Who’s Who Legal Global – Arbitration: Future Leaders (2020-2022), Commercial Litigation – Future Leaders – Partners (2021);

Who’s Who Legal Partners – The Americas: Most highly regarded (2022).

Who’s Who Legal Brazil – Arbitration (2019-2021)

Único. The Mattos Filho news portal

Authored publications

Mattos Filho in the media

With Flávio Spaccaquerche

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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