FAQ - more frequent Questions

We place here the responses for the questions most frequent on the use of the Arbitration. They are the basic concepts for the perfect agreement. However, if you it will have other doubts, it enters in contact with us and we will answer readily.

1- What they are Conciliation, Mediation and arbitration?

TASP: Conciliation, Mediation and Arbitration are alternative means to solve litigations. Let's have a closer look at each one of them: Conciliation takes place when a third person (conciliators), helped by a mediator, makes suggestions aimed at finding a consensus between the directly involved parties. Mediation is a dialogue among the conflicting parties, helped by a mediator, so as to reach an agreement. In Mediation always prevails the decision of the conflicting parties. The Mediator will never impose solutions. He/she will only bring the conflicting parties closer in order to make them negotiate directly and make them recognize the conflict and search some kind of solution that reasonably contemplates and satisfies the interests of all of them. In Arbitration the Arbitrators, by assuming the position of the conflicting parties, reach a decision. The decision to do so was previously placed into them through a so-called Arbitrational Commitment Clause. In Brazil, law 9.307 (September / 1996) has authorized the usage of Arbitration for the judgment of litigations involving Existing Property Rights, which means, those rights that the parties may transact - contracts in general (civil, commercial, labour). The verdicts reached by Arbitrational Courts are as valid as a juridical sentence. The main difference lays in the fact that the maximum duration of a lawsuit solved through Arbitration is six months.

The Brazilian project of BID/CACB supports the institutional model in which an "Arbitration and Mediation Center" can be defined as an initiative with institutional support, having as fundamental object the paid remuneration of the mediation services. These services are available to different specialized sectors (business sector included), offering to its users juridical safety, ethical solidness, constant professional upgrades and the generation of a jurisprudence based on memory and the organizational learning process.

2- When can I make use of Arbitration?

TASP: It is possible to make use of Arbitration in order to solve any conflict of civil and commercial that is involves Existing Property Rights. This conflict may have happened between people or companies. Whenever there is a conflict in contracts with an Arbitrational Commitment Clause, TASP is called in to take action. When the litigation is about Existing Rights (used in contracts or not), even if there is not an Arbitrational Commitment Clause, the Arbitrational Court may act if the involved parties elect arbitration as the way to solve the problem. In order to do that, the Arbitrational Commitment Term must be signed.

3- How does TASP work?

TASP: TASP is a private court which is destined to solve litigations through Mediation techniques, Conciliation and, if necessary through Arbitration. The first step to be taken in order to use the Mediation and the Arbitration at the Arbitrational Court of São Paulo is to add a clause to the contracts - rental, purchase and sale, service provision, health and other insurances, social contract besides the ones related to civil and commercial law. This so-called Arbitrational Commitment Clause authorizes TASP to act. It must stipulated as follows: " It is decided that the Arbitrational Court of São Paulo, located at Av. Paes de Barros, 399, Mooca, São Paulo/SP is in charge to solve any conflict related to this contract". This Arbitrational Commitment Clause can be added in two moments: - while the contract is being elaborated and through Anticipation in already existing contracts. In cases when litigation has already taken place and there is no Arbitrational Commitment Clause, the Arbitrational Court may act. The only necessary step is that the conflicting parties must agree to do so. The parties will have to sign the Arbitrational Commitment Term. There are other models of arbitrational commitment clauses. It depends on the nature of the contract. Get in touch with us to learn which Arbitrational Commitment Clause is best for you needs The Arbitrational Procedure Once there is a conflict, the first step of TASP is to try to reach a friendly agreement between the conflicting parties through Mediation and Conciliation. If this proves to be impossible, Arbitration will take place and the final decision is presented by the Arbitrators in charge. The arbitrators (the ones who belong to TASP) are always in impair numbers and chosen by the conflicting parties. Those Arbitrators will announce decision to definitely end the litigation.

4- What are the advantages I have when I use TASP?

TASP: The advantages of Arbitration, based on an Arbitrational Court are many:
- Effectiveness (verdicts are as valid as public state courts)
- Agility(maximum duration until the verdict is six months)
- Specialization (by the use of specialized Arbitrators)
- Secrecy - (guaranteed by law 9.307/96)
- The parties autonomy prevails (They choose the Arbitrators)
- Lower costs (2 to 6% of the total value of a lawsuit, according to the internal policy of TASP).
- Apart from that, since less time is spent the use of Arbitration is economically worth it. Plus:
- The atmosphere where Arbitration takes place is less formal and more flexible than the ordinary justice system. - There is no juridical trauma or the rigidness of procedures of the ordinary justice system.
- Arbitration relieves the judiciary system. Therefore, it offers better conditions for the judiciary system to dedicate itself to the litigations that involve the public interest or Existing Rights.

Net user- I would like to be informed about what kind of conflicts I can solve by arbitration. Please use practical examples.

TASP : All kind of conflicts related to contracts (rental, purchase and sale, services, insurances, etc) can be solved through Mediation and Arbitration, as long as no underage or unfit person's interests are involved. Thus, questions of any civil nature (damages and interests, condominium lawsuits, etc) or commercial nature (demands at payment) may be solved through Arbitration.

Net user:- Before receiving the enrolment form, I'd like to free myself from some doubts. If I take this course will I have the same rights and chores of an Arbitrator in SP? Which means, I would like to take this course and then be prepared to work in Foz do Iguaçu, Paraná. Will I have any kind of certification stating I am an Arbitrator or Mediator after finishing the course? After finishing this course, will I be able to act as an Arbitrator in other cities or states that may have an Arbitrational Court?

TASP: Dear Sir, TASP has been holding the "Basic Course of Mediation and Arbitration" for 3 years and we have prepared Mediators and Arbitrators to work all over Brazil. Once the course is finished a certificate is given to you, although there is no law requiring the possession of such a certificate. In order to work as an Arbitrator it is necessary to be well-prepared and have a deep knowledge of the law 9.307/96, which is exactly what is taught in the course. If and how an Arbitrator acts depends on the conditions stipulated by the entity and you. We are available in case you have further doubts.

Net user- I read the TASP website and I found the information provided very interesting in. Since some doubts still remain, I would like to clear them up: How can I choose an Arbitrator of my preference and how does this Conciliator get paid? Thanks.

TASP : - TASP has a list of qualified Arbitrators of many different specializations and one of them may be designated, to work on the solution of the disagreement that is presented to them. Their payment depends on the difficulty of the job and the value of the cause. Law 9.307/96 does not designate an Arbitrator, however, he has to be capable and doesn't fall under the conditions of suspicion and impediment as stated in the Civil Code.

Net user: - I go to "Universidade de Caxias do Sul",( Canela University Cener ) in Rio Grande do Sul and would like to make a research about TASP. If you could please answer me, I will mention this in my assignment, and then, send a copy to you. Thanks for the cooperation: 1- What is TASP`s opinion about the constitutionality of the legal disposition article 5, Constitution of 1988? 2- In your opinion isn't the lack of qualification of the judge according to Arbitration law a negative factor which makes it more difficult to end conflicts in justice? 3- The non-existence of a 2nd degree jurisdiction works against the constitution? Comment on this. 4- Notwithstanding who are the parties, don't you think that Arbitrational law deviates conflicts from the Judiciary system and goes against the 1988 Constitution?

TASP : Dear Sir. Arbitration is in no way unconstitutional. Not talking about law 9.307/96, the institute has always been stated, what happens in our law since the constitution of 1824. Your point of view regarding the unconstitutionality of the law is interesting, even though I do not know your reasons, because as you may know Arbitration is practiced world wide with great results to keep the order in society when talking about the nature of property. We make society a peacefuller place thanks to the use of Arbitration law since 1988, our results are excellent and helpful for everybody. At last, only as a matter to think about, we would like to mention that today everybody trusts most of social an economic matters to private hands, without much thinking about it. E.g.: - We trust our health to private doctors and hospitals, education of our children likewise, even though, there are public schools, doctors and hospitals. The reasons we do so are numerous and they are not very different from these which would justify the usage of a private professional to solve some of the disagreements that happen in society. To me, there doesn't seem to exist anything absurd or unconstitutional in using such services as Arbitration. Best regards - TASP.

Net user: We are interested in participating in TASP. We have already taken the course in another entity. What shall we do?

TASP: In order to become an Arbitrator at TASP the "Basic Course of Mediation, Conciliation and Arbitration" must be taken, and up-to-date resume presented. The next step is to take the specialization course in Mediation and Arbitration - then a paper about the studied themes is prepared by the student and afterwards presented to the TASP Board of Arbitrators (mini-monograph). After that, the student attends as a trainee the hearings that take place at TASP (20 hours minimum). After all those steps, the name of the student will be included in the list of the TASP Board of Arbitrators and he may be called to be a Mediator, Conciliator or Arbitrator, according to the nature of the process and the need of the specific situation. Another possibility is that the student proves his/her specific and broad knowledge, and experience by handing in and presenting a paper in order to validate his/her habilitation.