Arbitration as a field of the accounting officer

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SILVA, Fabrício Cássio da [1]

SILVA, Fabrício Cássio da. Arbitration as a field of the accounting officer. Multidisciplinary Core scientific journal of knowledge. 03 year, Ed. 06, vol. 06, pp. 5-14, June 2018. ISSN:2448-0959

Summary

The objective of this work is to demonstrate a field that is on the rise and should encompass the participation of the accounting officer. After the promulgation of the law of arbitration, opens a field so that the counter can act, and so highlight thoroughly the field counter referee, explain the concepts used, as well as the place of performance and their functions. Given this, it is worth pointing out that the law of arbitration if the tariff law 9,307/96 and it has parameters for the performance of a trader. In this scenario, it is observed that arbitration crawls toward being one of the ways of resolving conflicts in society, and the most common and best known is the judicial process in which has lawyers, the parties, the judge and a site known as Forum. Given this, the arbitration involves some actors who work in the Forum and adds others, however, the site is now on the boards of arbitration, which gets a speedy character, however more expensive. And in this field the parties involved need to fill some requirements, as well as having rights available and have a compromissório contract to arbitration, namely the praxis of professional Arbitration Act differ from those that are relevant to the Forum, even if the goal is the understanding of the dispute.

Keywords: Accountant, Referee, Board of Arbitration, law.

Introduction

13,105/15 law brings among others the question of arbitration matters, that is, norms on this new field that aims to resolve conflicts, this law reinforces the law of arbitration 9,307/96. In this sense, open field for performance counter, and whereas there will be discussions involving equity issues of individuals and legal entities and the same rights, in that sense, what are the functions of the counter before the Board of arbitration? So, the goal is to demonstrate what is arbitration, the benefits of that path to resolution of the dispute.

To this end, the clarification of this article will be through theoretical searches on dissertations and theses. Thus, it appears that is a field that must have a representative accounting and that this field is prone to this professional, what allow to conclude that the rights may be achieved and the deal will be extinguished so fruitful, since the professional accounting will be able to judge the free-form questions.

It is known that the accounting, social science has as object and scope of practice of heritage, as well as of individuals, so that the equity is understood as the goods, rights and obligations (CFC number 774 of 1,994).

Given this, the boards of arbitration argue very much what the Accounting Board considered as patrimony, that is, the camera arbitrate on the property, rights, and therefore the obligations that the contracts generate. However, the law of arbitration brings in your belly, that can only be discussed questions of people who have rights available, or may be, rights that have pecuniary character.

Fields of activity of the arbitration

9,307/96 law that deals with the law of arbitration is reinforced by law 15/13,105 that brings new concepts on arbitration and extends the field of the counter. According to the Federal Accounting Council-CFC, the field comes down to the patrimony of individuals and corporations (CFC number 774 of 1994), and the term Heritage covers the goods, rights and obligations vis-à-vis third parties.

However, the law 9,307/96 directs people capable can make use of arbitration for the resolution of disputes concerning property rights available. Accordingly, when the law dealing with rights, generates a redundancy, because equity issues in accounting are assets, rights and obligations, in other words, people can make use of arbitration to resolve disputes that have as object what regarding the accounting.

Given this, Brittes and Antonio (2009) conceptualize simply the term arbitration as a means of resolving conflicts in which there is no intervention by the State. In this issue of non-intervention of the State can understand that the issues discussed there are faster, since the judiciary is saturated, and the arbitration comes as a parallel route to settle the deal.

The scope of operation of the meter is in labor arbitration, commercial, corporate, among others. This bias, the law 9,307/96 brings in article 1 that the Board should resolve disputes related to assets available, therefore, the Board of arbitration did not entertain disputes, for example, that focus on criminal, family sphere, among others.

From the perspective of Brittes and Antonio (2009) the term that refers to goods available is not clear in the law of arbitration, but mention that are goods that can be freely disposed of, data as collateral which may be made up of cash value, and may disposal at any time.

Given this, the professional, known as referee will proceed according to the dictates of Justice with a view to clarify and give an opinion (MARTINEZ and FERNANDEZ, 2003). However, the problems have reached the Arbitration Chambers in the point of view of Lara and Santos (2014) are the corporate matters, meanwhile, are values that have not been paid, dissolution of the company, corporations, etc.

Added to this, the field of action of the counter, on the labor arbitration, commercial, corporate, contracts and various other, however there needs to be a compromissal clause, as says Silva and Parents (2015). This clause, as the authors is an item that should be included in the contract in which the parties undertake to have recourse to arbitration as a means of solving the conflict, avoiding the common court.

Under this contract, the parties may choose freely the rules they want to follow, provided that there is no violation of good customs and public order, or the rules of law, they may, themselves build their own rules based on local issues and your own interest (9,307/96 law, art. 2nd). In the same judgment, the parties may choose the referee who wish, especially, if you wish the counter evaluation about matter that embraces your expertise, thereby waived the need for expertise, since the own referee already have knowledge of the matter.

Corroborate Brittes and Antonio (2009) in this area, by saying that "the technical competence of the counters is of extreme relevance matter appreciated involves accounting issues, making it essential for these professionals" (BRITTES and ANTONIO, 2009, p. 35). Therefore, if you see that is essential to participation of counters in the elucidation of the facts that are the subject of study in accounting, proving to be one of the advantages in that way.

Another important factor that NETTO (2008) points out, is that in arbitration the parties have complete freedom to indicate their representatives, therefore, being discharged the representation by lawyers during the process of arbitration, however, according to the law 9,307/ 96 the professional should possess some features like impartiality, independence, competence, diligence and discretion, valuing by article 21 of the law of arbitration that candle by the adversarial principle.

Besides being quick, the arbitration has as advantage to specialization, since the arbitrator's expert in the field, eliminating the expertise, whereupon, Brittes and Antonio (2009) emphasize that being the official accountant he can exercise the role of expert, for these authors, the counter takes on this role when the part calls for the expert, unlike what happens in court when judge common unaware of accounting matter and calls for expertise to help elucidate the issues, what causes delay in the process.

Another factor had as leverage according to Santos (2011) is the irrecorribilidade, IE, after given the judgment or award is impossible to appeal, although the Court common. In this sense, OABMG (2009) reinforces that "the award cannot be modified by the judiciary, and against it no appeal shall lie" (OABMG, 2009, p. 12), however it is up appeals against the Praxis adopted, if perhaps characterizes vices in the procedure.

Arbitration in the field of labour law

It is observed that arbitration should stick out about economic rights available, and to that end to include in the labour sphere generate doubts what would be the labour law available, since the labour law is collective. Thus, Pereira e Silva (2012) States that the individual labour law has two approaches, being the absolute and relative unavailability and these two approaches that give the Bank the irrelevance, not doctrinal understanding in unanimous What labor rights be unavailable.

However, for Pereira e Silva (2012) some labor rights are not available and cites as an example "the personality rights of the employee, diffuse, collectives and norms regarding medicine, safety and the work environment" (PEREIRA E SILVA, 2012, p. 13).

Given this, the law 13,467/2017, that altered the CLT-consolidation of labor laws, in art. 507-A, ensures that the arbitration can be applied in the field of labour law when in the individual employment contract the value of wages to be paid is more than twice the maximum limit established for the benefits of the general scheme of Social Security.

In this perspective, Pereira e Silva (2012) emphasizes that the arbitration clause cannot be inserted in the contract of employment, because at that time the employee is in a vulnerable financial situation, noting that this worker will be in a situation of weaker position in this relationship, however when applies in the situation in which the worker go receive twice the limit, it is assumed equiparidade of power.

Under another approach, Pereira e Silva (2012) States that to end the employment relationship there is no what talking about labor rights available, especially ending the relationship of work, having more the strength of the employer under the employee, can express your mood freely, and can seek arbitration if you so desire.

Procedures to become a Chamber of arbitration

The Constitution of companies is one of the standard procedures of the counter, however there are some specifics that this professional should be aware of, is what ensures the CONIMA DISTRICT (2010). In your booklet available on the site, the National Council for mediation and arbitration institutions-CONIMA DISTRICT reports a script, excepting the praxis.

For the CONIMA DISTRICT (2010), preliminarily, it is necessary to obtain legal knowledge about the Extrajudicial methods in solving conflicts, the requirements and the requirements, among others.  Therefore, be within the regulations that were created by the Ministry of Justice in accordance with the code of ethics.

Despite this, the CONIMA DISTRICT (2010) reports that the biggest questions hovering over the table of costs and fees in the provision of services, in particular, the unions of Accountants of Minas Gerais do not provide fees on arbitration.

Arbitration Chamber of Minas Gerais – CAMARB, when audiences with a Secretary and the deal has discussion value up to £ $200,000.00 (200,000 dollars), the administration fee, the amount to be charged will be R $4,500.00 (4500) , that in Belo Horizonte, should the need arise to offset added to R $1,000.00 (UM thousand reais), still being required if, perhaps, there are other local rental expenses and other expenses.

Table 1: management fee, currency values Real (BRL). Source: CAMARB-administration fees table.
Table 1: management fee, currency values Real (BRL). Source: CAMARB-administration fees table.

Given this, a high cost with financial resources for values discussed in contracts and/or equity issues. Added to this, has the fees of the arbitrator, it is stipulated, in levels of values that are discussed. Thus, values that are up to £ $200,000.00 (200,000 dollars), the minimum to be paid is R $5,000.00 (5000), i.e. the fees more initial rate is less than R $13,000.00 (9000 dollars), is to start a process, the registration fee is R $3,500.00 (3500)

Table 2: values in Real (BRL) for the fees. Source: CAMARB-(adapted).
Table 2: values in Real (BRL) for the fees. Source: CAMARB-(adapted).

In this sense, you can see that the costs of arbitration are not accessible to the public with lower purchasing power, yet it can be observed that in arbitration arbitrators are required in odd number, i.e. If they are necessary three, the value is multiplied in this proportion, and advises the President CAMARB will receive 15% plus the other values.

Therefore, the CONIMA DISTRICT (2010) guides how to profile the Board will act, commercial areas, consumer, small contracts, major contracts, international, among others. It is also necessary that a regulation of arbitration in accordance with the guidelines of the Ministry of Justice. Like, it is also suggested that the future arbitrator make a course on arbitration in an institution of repute.

Final considerations

It can be observed that the arbitration is a quick and easy way to solve conflicts, considering that the judicial process is time-consuming and is jam-packed, but it's a process that has values of more expensive processes because it takes into account the specialties of the arbitrators.

To pursue this path of conflict resolution is necessary to have an arbitration clause in their contracts, and that this verse to the pursuit of arbitration as a means of solving the conflicts, in this sense, the controversies that are under the aegis of the counter are commercial contracts, the financial, commercial, among others, i.e. accounting arbitrage is scoped to the financial rights available.

It is worth mentioning, that the equity accounting involves the assets, rights and obligations of the entities and individuals, with the edition of the law of arbitration in the field of counter was extended and the possibility to insert this Professional in arbitration.

It is observed that the arbitration in labour law has a limited scope and bump into several hurdles, however, the legislator search with that defend the worker of possible abuses of the employer. Given this, the labor reform law reinforced that in a single situation can the employee get to arbitration.

However, individual work contracts there is a levelling of forces between the employee and employer and arbitration clauses including arbitration as exception when workers receive wages twice the size of the social security ceiling .

References

Brazil. 9,307/23 law of September 1996. Rules on arbitration. <Disponível em="">http://www.planalto.gov.br/ccivil_03/leis/L9307.htm, accessed 03/10/2017.</Disponível>

Brazil. 13,467 law/13 July 2017. Changes the consolidation of labor laws. <Disponível em="">http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2017/lei/L13467.htm, accessed 03/10/2017.</Disponível>

NETTO. Cassius Telles Ferreira. Administrative contracts and arbitration. Legal Fields. 2008, Elsever LTDA.

OAB/MG. Order of attorneys of Brazil. Primer of arbitration. 2009. <Disponível em="">http://www.precisao.eng.br/download/cart_arb/Arbitragem.pdf, accessed 03/10/2017.</Disponível>

PEREIRA E SILVA, Paula Regina. Arbitration and labor law: the (in) applicability of individual labour conflicts Institute. 2012. <Disponível em="">http://www3.pucrs.br/pucrs/files/uni/poa/direito/graduacao/tcc/tcc2/trabalhos2012_1/paula_silva.pdf, accessed 03/10/2017.</Disponível>

SANTOS, Ricardo Soares Stersi. The advantages of arbitration. 2011. <Disponível em="">https://bdjur.stj.jus.br/jspui/bitstream/2011/20481/vantagens_da_arbitragem.pdf, accessed 03/10/2017.</Disponível>

SILVA, Fabrício Cassius. PARENTS, Eliane Vera Ficher. Skill versus arbitration. 2015. <Disponível em="">http://www.sinescontabil.com.br/trabalhos/arquivos/e09fd4b00b4809fa2682f65a4b7fe98a.pdf, accessed 03/10/2017.</Disponível>

[1] Accounting technician. Technologist in financial management. Specialist in audit and Controllership. FRANCIS College majoring in accounting.

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