DECREE NO. 8,465, OF June 8, 2015

Regulatory to § 1º of the art. 62 of Law No. 12,815 of June 5, 2013 to dispose of the arbitration criteria to drive disputes within the port sector.

THE CHAIRPERSON OF THE REPUBLIC, in the use of the assignments that confers it on art. 84, caput, inciso IV and inciso VI, paragraph "a" of the Constitution, and with a view to the provisions of § 1º of the art. 62 of Law No. 12,815, of June 5, 2013, and in Law No. 9,307 of September 23, 1996,

DECRETA:

Art. 1º This Decree has on the standards for the realization of arbitration to direct disputes involving the Union or the entities of the indirect federal public administration and the dealerships, leases, permataries, or the operators port in relation to the inaddition in the pick-up of port fares or other financial obligations in the face of the administration of the port and the National Transportation Agency Aquaviaries-Antaq, as per the provisions of § 1º of the art. 62 of Law No. 12,815 of June 5, 2013.

Art. 2º Include among the disputes relating to available patrimonial rights that may be the subject of the arbitration of which it treats this Decree:

I-default of contractual obligations by either of the parties;

II-issues related to the recomposition of the econo-financial balance of contracts; and

III-other issues related to inadimpletion in the pick-up of port fares or other obligations financial before the administration of the port and the Antaq.

Art. 3º The arbitration of which it treats this Decree will observe the following conditions:

I-will admitted exclusively to the arbitration of law, being vetoed to arbitration by equity;

II -the rules of law on which the arbitration award will be based will be those of the Brazilian legislation, without prejudice to the adoption of special procedural standards for the arbitral procedure;

III-the arbitration will be held in Brazil and in Portuguese language;

IV-all the information about the process will be made public;

V-in case of issues whose economic value is greater than R$ 20,000,000.00 (twenty million reais), the litigation should be addressed by collegiate of at least three referees;

VI-the procedure of arbitration should assure the parts of defence of at least forty-five days;

VII-the expenses with the realization of the arbitration shall be advanced by the contractor when the establishment of the arbitral procedure, included the fees of the arbitrators, possible costs of perices and too much expenses with the procedure;

VIII-the beaten part will bear with the costs of the arbitration procedure;

IX-each party will arm with the fees of its own lawyers and eventual technical assistants or other professionals nominated by the parties to assist in their defence in the face of arbitral judgement, irrespective of the end result; and

X-the sentencing decisions will establish a form of debt update that includes monetary correction and interest de mora.

§ 1º For the purposes of the provisions of the inciso V of the caput, it shall be regarded as value economic of the issue the amount that the public administration understands due.

§ 2º In the case of litigation that should necessarily be decided by collegiate referees, in the form of the inciso V of the caput, at least one of the arbitrators will be a bachelor's degree in law, without prejudice to the compulsory fulfillment of the requirements of the art. 5º.

§ 3º The arbitrators shall be chosen from common agreement between the parties, without prejudice to the possibility of referral from an arbitral institution, observed the conditions set out in the art. 4º and art. 5º.

§ 4º For the purposes of the provisions of the inciso VII of the caput, it shall be deemed to be as contract dealerships, leases, permataries and the port operators.

§ 5º In the case of reciprocal succumbing, the parties will shoulder proportionally with the costs of the arbitration.

Art. 4º The arbitration could be institutional or ad hoc.

§ 1º Will be given preference to institutional arbitration, and the option by the ad hocarbitration should be justified.

para. 2º The arbitral institution chosen to compose the litigation should meet the following requirements:

I-have registered office in Brazil;

II-be regularly constituted for at least three years;

III-being in regular functioning as an arbitral institution; and

IV-having recognized idoneity, competence and experience in administeredarbitral procedures.

Art. 5º Are requirements for the exercise of the role of arbitrator:

I-being in the enjoyment of full civil capacity;

II-detain technical knowledge compatible with the nature of the dispute; e

III-not having, with the parties or with the dispute submitted to it, relations that characterize the cases of impediment or suspicion of judges, as provided for in the Code of Civil Procedure.

Paragraph single. In the foreign arbiter hypothesis, the latter should possess a visa permitting the exercise of the activity in Brazil. Art. 6º The concession contracts, tenancy and authorization of which it treats Law No. 12,815, 2013, will be able to contain arbitration arbitration clause, provided that the standards of this Decree are observed.

§ 1º In case of an option by the inclusion of arbitration arbitration clause, the bidding edital and the instrument of contract will make it remission to mandatory compliance with the standards of this Decree.

§ 2º A arbitration clause of arbitration, when stipulated:

I-will build in a highlighted manner in the bid edital and in the instrument of contract; and

II-will exclude from its comprehensiveness the issues related to the recomposition of the economic-financial balance of contracts, without prejudice to subsequent conclusion of arbitral commitment to the solution of disputes of that nature, observed the requirements of the art. 9º.

§ 3º The absence of arbitration clause of arbitration in the contract shall not preclude it firm arbitration for arbitration to address any disputes covered in the art. 2º, observed the conditions set out in art. 9º.

Art. 7º If provided for in the contracts of which it treats this Decree, the arbitration arbitration clause will be able to:

I-indicate an arbitral institution to address eventual contract-related disputes; and

II-determine the application of the procedure established by a given arbitral institution yet to be chosen as a referee person not bound to that institution.

§ 1º In any case, they will compulsorily observed the conditions set out in the art. 3º.

§ 2º In the case of ad hoc arbitration, the arbitrator or the collegiate of arbitrators shall be defined in the arbitral appointment.

§ 3º The choice of arbitrator or of arbitral institution will be considered direct hiring by bidding inexigibility, and the relevant standards should be observed.

Art. 8º Are mandatory clauses of the arbitral commitment, in addition to the clauses indicated in the art. 10 of Law No. 9,307 of September 23, 1996:

I-the place where you will develop the arbitration;

II-the mandatory that the arbitrator or the arbitrators decide the matter second the standards of material law established by the applicable Brazilian legislation;

III-a enforceability of the standards of this Decree;

IV-the deadline for submission of the arbitral sentence, which may not be more than twenty-four months, and may be extended by agreement between the parties;

V-the fixation of the referees' fees; and

VI-the definition of the responsibility for payment:

a) of fees from the arbitrators;

b) of possible expert fees; and

c) of other expenses with the arbitration procedure.

§ 1º In the agreement hypothesis between the parties, the arbitral compromise may delimit the object of the dispute upon setting of minimum and maximum limits considered incontroverted by the parties.

§ 2º The arbitral commitment shall be affirmed by the parties having legal interest in the object of the dispute, observed the following conditions:

I-if the Union has an interest legal in the matter, the jurisdiction to firm up the arbitral commitment will be of the authority of direct public administration to whom to compete firm contractual additives, the intervening of the Antaq and the port authority being necessary; and

II-in the cases of disputes that do not involve legal interest of the Union, the arbitral commitments will be firmed up by the maximum leaders of the Antaq or the port authority, as the case may be.

Art. 9º Even if the contract does not contain any arbitration arbitration clause, the public administration will be able to enter into arbitration arbitration to direct the disputes of which it treats art. 2º.

§ 1º In the case of concluding arbitral commitments in the situation of which it treats the caput, the public administration should evaluate beforehand the advantages and disadvantages of the arbitration in the concrete case as to the time frame for the settlement of the dispute, the cost of the procedure and the nature of the litigation issue.

§ 2º Will be given preference to arbitration:

I-in the cases of disputes involving technical analysis of non-juridical character; or

II-whenever the delay in the definitive solution of the litigation can:

a) to generate injury to the proper provision of the service or to the operation of the port; or

b) inhibit investments considered priority.

§ 3º The arbitral appointment could be clinched independently from preview of additive term celebration to include arbitration clause of arbitration in the contracts of which it treats this Decree.

§ 4º Case already has been proposed legal action by either party, in addition to the conditions set out in the caput, the celebration of arbitral commitment to address the issue will depend on the fulfillment of the following additional requirements:

I-the competent body for the conclusion of the arbitral commitment shall request the organ of the Advocate-General of the Union responsible for the monitoring of the legal action a report on the possibilities of decision favorable to the public administration and the time perspective required for the closure of the dispute before the Judiciary Branch; and

II-the homologation of judicial settlement in which the parties undertake to take the issue to the doomsday arbitral.

§ 5º The court agreement of which it treats the inciso II of § 4º shall accurately indicate the object of the dispute to be submitted to arbitration.

Art. 10. The Union and its municipal entities shall be represented in the face of arbitral judgment by the Advocate General of the Union and its linked bodies, as per their constitutional and legal powers.

§ 1º The procedural communications addressed to the members of the Advocate-General of the Union and its linked bodies will be carried out personally, not being admitted to communication by post.

§ 2º The Union may intervene in the arbitral causes in which they appear, such as authored or rés, authorities, public foundations, mixed-economy societies and federal public companies.

Art. 11. In the event of arbitrary sentencing sentences involving issues related to the port authority's patrimonial and tariff revenues, the corresponding credits and obligations will be assigned directly to the port authority.

Art. 12. In the event of a sentencing arbitrary sentence that would impose pecuniary obligation against the Union or its municipal entities, the payment shall be given upon the dispatch of precatory or small-value requisition, as the case may be.

Paragraph single. In the hypothesis that it treats the caput, the arbitrator or the chair of the collegiate of arbitrators shall request the competent judicial authority to adopt the necessary arrangements for the precatory or requisition expedition of small value, as the case may be.

Art. 13. When necessary, the arbitrator shall establish interim value for the litigation obligation, which shall bind the parties until it overcomes the definitive arbitral decision.

§ 1º While there is litigation pending arbitration award, the contracts of which it treats this Decree could be extended, observed the remaining legal requirements and regulation, if characterized the public interest, provided that:

I-the contractor has paid integrally the uncontroversial values due to public administration;

II-the contractor has paid or deposited at the disposition of the judgment the amount corresponding to the provisional value of the litigation obligation which is fixed by the arbitrator in the form established by the caput; and

III-the contractor will get paid, under the conditions and deadlines set in the definitive arbitral decision, the whole value to which it will eventually come to be ordered to pay in favour of public administration.

§ 2º The maximum period for the payment referred to in inciso III of § 1º will not exceed five years.

§ 3º Case the arbitrator establishes that the total deadline for payment of which it treats the inciso III of § 1º will be higher than one hundred and eighty days, should establish that payment will occur in periodic instalments, the first instalment being paid within one hundred and eighty days, counted from the date of science of the definitive arbitral decision.

§ 4º In case of omission of the arbitral decision, the payment term referred to inciso III of § 1º will be one hundred and eighty days, counted from the date of science of the decision.

§ 5º In the hypothesis of extension of the contract referred to in the dispute, the term additive will consider, for purposes of defining the econo-financial equation of the contract, the provisional values set by the arbitrator, without prejudice to further economic rebalancing as a result of the definitive arbitral decision.

§ 6º In the situation of which it treats § 5º, should the provisional arbitration ruling not be handed down with minimum advance of ninety days in relation to the final term of the contract, the granting power will be able to define interim values in the additive term for the definition effect of the economic-financial equation regarding the extension period, which will invigorate until it overcomes the definitive arbitral decision, without prejudice to the need for economic rebalancing-financial due to ultimate supervenient arbitral decision-making.

§ 7º In the situation of which it treats § 6º, the provisional values will be defined by the power of the granting and will use as parameter the values of similar contracts relative to the same port or, if not, from other ports.

§ 8º The provisions of § 5º, § 6º and § 7º does not exclude the payment obligation or deposit of the amount to which refers to the inciso II of § 1º prior to the effective celebration of the term additive of prolongation, even if the additive term has not used the provisional value set by the arbitrator for purposes of defining the econo-financial equation of the contract, pursuant to § 6º.

§ 9º The provisions of this article also apply to the celebration of new contracts during the course of procedure arbitral.

§ 10. The condition that it treats the inciso III of § 1º shall be as a resolute clause in the term additive of prolongation or in the instrument of contract which comes to be concluded during the course of the arbitration.

Art. 14. The willing in this Decree applies to the contracts already under way.

Art. 15. This Decree comes into effect on the date of its publication.

Brasilia, June 8, 2015; 194º of Independence and 127º of the Republic.

DILMA ROUSSEFF

Nelson Barbosa

Edinho Araújo

Luís Inácio Lucena Adams