Simulated Arbitration

Small Hydroelectric Power Plant – SHPP

Hidrelétrica
Publicado em 12 Apr. 2017. Última atualização em 17 Apr. 2017
ACTIVITY DESCRIPTION

Summary: 

It is an activity which deals with fundamental concepts of arbitration from a simulated environment, in which students experience a case study based on pre-defined roles. Therefore, the class is divided into groups that are assigned with certain roles, and they must deal with a case concerning a Small Hydroelectric Power Plant (SHPP), internally interacting in groups and between groups. It is intended that students develop the skills and competencies needed to the performance of an arbitration attorney.

Objective: 

- GENERAL GOALS: It is to address fundamental concepts of arbitration and make the students simulate practical situations that they will experience as lawyers working in arbitration.
- SPECIFIC GOALS: The students should simulate an arbitration procedure involving a conflict over a Small Hydroelectric Power Plant (SHPP). The choice of a SHPP is justified because most arbitration cases in Brazil involve the infrastructure theme. Also, the students should interact in groups.
- ABILITIES AND SKILLS TO BE DEVELOPED: it is intended that students develop technical capacity in arbitration, oral skills and in writing, the legal writing, and inquiry techniques of witnesses and argument.

Dynamics: 

- TEACHING METHOD: role-playing and simulation. 
- REQUIREMENTS: there were needed approximately 15 meetings, using the first seven to work concepts, skills and competencies through lectures, Socratical dialogue, etc. The content of the preparatory classes were general notions about the Arbitration Law (Law no. 9307/96), the arbitration agreement, the arbitration agreement and the autonomy of the arbitration clause, the competence-competence, the applicable law and thirst arbitration, complex arbitrations, the contentious pre-arbitral litigation, precautionary measures and anti-arbitration, arbitration requirement, answer and counterclaim, jurisdictional objections, writing techniques of pleadings in arbitration, arbitration and construction contracts. The simulation took place from the 8th to the 15th class, in which there were worked texts and content involving the topics that affect the development of the dynamics.
- INTRODUCTION TO THE DYNAMICS: at the first class of the course, the professor explained that there would be a dynamics and defined the roles the students would play, as follows: a judge, two arbitrators, five or more witnesses (three are technical and two are of fact and may vary according to the number of students), and lawyers of the parties, divided between those who will make the pre-arbitral litigation, and those who will do the written part of the arbitration and those who will take care of the arbitration hearing. The arbitrators were chosen by the students from five candidates who volunteered in the first class. The candidates circulated their resumes to the class and there were the parties’ lawyers that nominated two colleagues who participated as the other arbitrators. These two arbitrators chose the presiding arbitrator from a list of five external professors appointed by the class’ professor.
- DEVELOPMENT OF THE DYNAMICS: from a previously fixed schedule, the activity began shortly before the 8th class. The development of the dynamics was performed out of the classroom, in addition to them, the devoted time was used to train the simulation. The students had to perform the steps of an arbitration proceeding, as described in the schedule (see attachment). The hearing is one of the most important parts of the simulation. Therefore, it was used the entire class to prepare them for hearings in arbitration, developing the skills to question witnesses, go to the arbitrator, develop argumentation, oral presentation, among other skills. Before the day of the hearing, the arbitrators had defined the work order, forwarding it to other students in the class. On the day, the class’ professor acted as an observer to evaluate the student performance. It was left to the presiding arbitrator (visiting professor) to lead it along with the arbitrators-students and be responsible for the ongoing dynamics, such as coordination of the manifestation of the parties, the investigation of the witnesses, the questioning by the judges, among others.
- END OF THE DYNAMICS: part of the class previous to the audience served for the professor to make critical and detailed considerations of student’s participation, but without any discussion on the merits of the claims and arguments. According to the schedule, the two students who acted as arbitrators headed, after the hearing, a sentence report to the professor, as well as to the invited external professor who acted as chairman of the Arbitral Tribunal. After the review of the President (guest external professor), the sentence was sent to the entire class.
- ATTENTION IN THE CLASSROOM: 
1) It is recommended not to use examples or case studies of simulation in the preparatory classes.                                                                                                                  
2) The evaluation and schedule criteria with deadlines should already be in the course program and should be explained in the classroom (see attachment). The prospective arbitrators must be aware of the possibility of not being chosen by room.                                                    
3) It is important to record the hearing audio, or audio and video, so that the arbitrators can have access, if they wish, in order to make the sentence, as well as activity the record for future classes.                                                                                                                               4) It is necessary to detail the most of the script of fact witnesses as well as any eventual technical witnesses. The contact of the parties with their witnesses is free, but it is not possible that there is misrepresentation of scripts, distort facts, etc. All students are advised to follow the ethical rules that involve contact with witnesses in the arbitration. The testimony of these is confidential and it is a work for the professor.                                       
5) If there are more candidates than vacancies for roles, you need to make a draw in the classroom.                                                                                                                  
6) Depending on the choices of students, it is possible that one more part is indicated to the arbitration. In this case, the professor will decide whether lawyers will be transferred or whether they will be the same students who work for one of the other parties.

 

Evaluation: 

- FEEDBACK: in every stage of the simulation the professor gave feedback on the results and at the performance of students.                                                                                               
- GRADE EVALUATION: 20% of participation in the classes of the course, including the preparatory and training for the simulation, and 20% of performance in the simulation, not considering the result itself, but the development and the way the students play their roles. In the case of the witnesses, it was evaluated mainly their resourcefulness and if it adhered to the statement given by the teacher. In the case of the lawyers, subgroups were evaluated according to their tasks (example: lawyers responsible for the oral arguments at the hearing were evaluated according to their posture, articulation and speaking, etc.; lawyers responsible for the written parts were evaluated according to their argument, his expression writing and legal writing, and so on). The judge and arbitrators were evaluated by the decisions taken and their substantiation. In all cases, the students were also evaluated by their technical knowledge about the fundamental concepts of arbitration. The final test occurred shortly after the hearing and its goal was the final arbitral decision. She made up the remaining 60% of the grade, along with the partial test, which is held in the middle of the course: 30% for the partial test and 30% for the final test. Both written tests were also integrated with the simulation and corresponded to a practical case simulation step.

Observation: 

1) If possible, it is interesting to participate in the simulation, an external professor who is engineer to assist with technical issues, given that the case study involves the construction of a SHPP.                 
2) If possible, the simulation would amount to 50% of the total final grade. There could also be the allocation of additional points for the group that represent the winning party in the simulated arbitration.

Copyright from the cover page image (cropped):

Image: "Turbinas da usina de Furnas", available by the Wikimedia Commons user "Luiz Coelho", picture from the user, under the Creative Commons BY-SA 3.0 license.

Activity Details

Name: 

Simulated arbitration: Small Hydroelectric Power Plant – SHPP

Institution: 

FGV DIREITO SP

Concentration area: 

  • Arbitration
  • Procedural law

Discipline : 

Arbitragem - Curso de Processo Civil

Course: 

  • Graduate course lato sensu level

Key words: 

  • Arbitration
  • Infrastructure contracts
  • Small Hydroelectric Power Plant (SHPP)
  • Procedure and process simulation

Number of students: 

From 20 to 40

Time of application: 

More than 4 hours

Edition: 

Diogo Rais Moreira
Fernanda Tie Yamamoto
Guilherme Forma Klafke
Vitória Oliveira

Copyright

Licença Creative Commons
This work is licensed under a Creative Commons Atribuição-NãoComercial-CompartilhaIgual 4.0 Internacional

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