OK, readers! Here goes the link to my interview at LA Talk Radio.
http://www.latalkradio.com/Players/Tom-082409.shtml
quarta-feira, 9 de setembro de 2009
sexta-feira, 28 de agosto de 2009
WORLD GOVERNMENT and Other Polemics Issues (Author: Francisco César Pinheiro Rodrigues)
"This book is a chronicle of our times, addressing issues that are not only current and polemic, but fascinating at the same time.(...) From varying perspectives and through diverse approaches, what we find united here is an estimable archive of thoughts, a serious contribution to the hard task of understanding that which is taking place in our times..." (Words of Francisco Rezek, a former judge of the International Court of Justice)
quinta-feira, 27 de agosto de 2009
Moral Harassment (Assédio Moral)
Assédio Moral no Trabalho (Workplace Harassment) vem atingindo consideravelmente os trabalhadores brasileiros, daí a importância de se informar a respeito do tema.
Workplace Harassment considerably has been reaching Brazilian workers, so it is important to inform about the theme.
terça-feira, 25 de agosto de 2009
Cryogenics - What do you think about???????
Francisco César Pinheiro Rodrigues
Lawyer, retired principal judge and writer. He’s a member of IASP (Instituto dos Advogados de São Paulo)
_______________________________________________________________________________
DOCTRINE
1.10 “CRYONICS”: A POLEMYC PLUNGE INTO THE FUTURE
FRANCISCO CÉSAR PINHEIRO RODRIGUES
When Alberto Santos Dumont, on October 23rd, 1906, in the fields of Bagatelle, Paris, got to raise in the air his phantasmagoric and awkward “14-Bis”, he couldn’t imagine that in that very moment he was casting the seeds of a future branch of Law, the Aeronautical Law, accepted as an autonomous branch in the most recent Brazilian constitutions.It is amazing to know nowadays that, in the second flight, on November 12th of the same year, the apparatus flew 220 meters in 31 seconds, in the “vertiginous” 2-meter height. It was Humankind’s first controlled flight. A speed – 37.5 km/h – that was slightly inferior, of course, to the “14 Bis” great-great-great-grandchild, the supersonic Concorde.The evolution, as we may see, was fast. In May, 1927, Charles Lindbergh made the first solo, nonstop transatlantic flight, from west to east, proving the human being’s creative speed, at least in the technical area. Those who occasionally have watched a documentary film on the history of rockets, would certainly get amazed with the disorientation of those initial artifacts that, contradicting the engineers’ calculations, seem like gigantic serpent fireworks, deprived of the slightest notion of the place where they were going to fall. In those ancient documentaries it is impossible not to laugh – seeing the escape speed of the legs of technicians, engineers and workers – much higher, on the ground, than the “14 Bis” speed on the air. Filmed at a distance, the men look like desperate ants, running away from the probable place of impact of that machine that was crazy and also mortal, because it was filled with tons of fuel.In spite of that difficult beginning, in 1969 the “Apollo 11”, a spacecraft designed to carry astronauts, landed on the Sea of Tranquillity in the Moon. Something at first inconceivable, for many – even for those with a scientific education – because spacecrafts don’t have flaps that may have influence on their steering. Flaps are useless in the vacuum. As somebody has already remarked, air is the enemy of the rocket and vacuum is the enemy of spacecrafts. And we shouldn’t forget that when the rocket is set in motion, our planet isn’t motionless. Earth’s rotation speed is significant. We aren’t centrifugally “spat” into space because of gravity. The shortest calculation error in the project and the spacecraft crew would be lost in the huge vacuum in a one-way trip. How was such voyage calculated with no errors? Today, the task is very easy, compared to the project of sending a spacecraft carrying astronauts to the planet Mars.The rocket “nuts” – don’t forget the chief one, the German Von Braun – didn’t know, at that time, that they were launching not only their rockets but also the foundations of another branch of Law, the Space Law, equally raised to recognition by the Constitution legislators (Art. 22 of the Federal Constitution, 1988).Von Braun was so important to the prudent North-American people – who were not acquainted with the rocket technology at that time – that the launching bases of the “V-2” (rockets that tormented London in World War II) could be destroyed by the Royal Air Force, provided that the dorms where the scientists lodge were spared. A detail that raised difficulties to the British pilots, forcing them to get dangerously near to select their targets. But the English pilots, though frustrated with the restraint, showed that they were a good shot. Von Braun and his associates survived the air raids and, when the war was over, were requested to work in the United States, urging the space conquest.A technological advance that, I suppose, is still going to shake our civilization – with obvious influences on the juridical area – maybe in a much deeper scale than the invention of the airplane or the rocket, is in the use of low temperatures as a way to preserve human bodies affected by severe accidents or diseases that are still incurable. Our children maybe won’t, but at least our grandchildren who graduate in Law will have to pore over the creation of new juridical rules to discipline the prickly field of cryogenics, or cryobiology, in the item of conservation of human beings in extremely low temperatures for a future thawing. Consequently, there will be, in a remote future, a “Cryonics Law”.The preservation of fruit, meat, fish, semen or fertilized ova in an extremely cold temperature is routine nowadays. Such activities are connected to cryogenics. However, for the “science” or technique – still incipient – of preservation of human beings no specific term has been coined yet in Portuguese. And the natural way for this “christening” seems to be the “Portuguesecizing” of the English word cryonics, adopted by Robert Ettinger, a North American Physics Professor, in his book The prospect of immortality, published in 1964. The access to information on that subject in the internet is only possible using the keyword cryonics.“Criônica”, therefore will be the probable designation of that latest research area in Portuguese. Anyway, the word is of the least importance and the subscriber hereto doesn’t object to the use of any other term that may be best chosen by authorized minds in the academic world.Even the most tolerant reader must be wondering: - What causes the author of this article to look for such an odd subject? Isn’t this issue better located in a science fiction magazine?In fact, the subject fits both spaces. And in the Medical one as well. I ponder, as a justification, that the Law graduates are also entitled to speculate on the future, though the Law is usually remembered only after the pioneer work of scientists and inventors. And only when the first conflicts of interest arise. Law is like the night-clubs’ bully doormen or the police officer: it is called only after the first fights start on the floor. Since in Brazil, at least, there hasn’t already been any legal conflict connected with the freezing of people for a future reviving – and not even the deliberate freezing in itself – it is natural that even the word is unknown here. And I satisfy the reader’s curiosity as to the source of the subject.Several months ago I read in the international news section of a newspaper published in São Paulo that an English lady, probably with an incurable disease – the news was very concise, almost telegraphic - , had contacted a company, or an entity in England that is dedicated to this new and odd activity of preservation of human beings in liquid nitrogen – minus 196º Celsius – up to moment when science will be able not only to cure the disease, but also to repair the damage caused by the prolonged freezing.The news also said that the price demanded for the preservation of the whole body was very high – save that the newspaper committed a mistake, it was US$ 800,000. So, since she didn’t have such amount of money, the lady hired the company just to preserve her head (“neuro-suspension”), implying a cost reduction to US$ 300,000. She surely relied on the future possibility, though a remote one, of a “body transplant”.Seemingly, the lady has paid dearly because, currently in California there is an entity named “Alcor Life Extension Foundation” that charges one hundred and twenty thousand dollars to preserve the whole body. A reduction that seems to be a large progress, in terms of diffusion of the idea – taking for granted that it is a serious entity. The exotic side to the initiative doesn't imply dishonesty. And, for what I’ve read, a huge enthusiasm is transmitted to those people interested in turning the mere possibility into reality.Since it was a news on an actual fact, not a science fiction joke, or horror literature - provided that it was an unlikely irresponsibility of the newspaper – , I got interested in the issue as a subject for a future fiction work, without thinking in the legal developments.The backers of the revolutionary novelty are supported by the theoretical possibility of preservation of cells, in the liquid nitrogen temperature – minus 196º Celsius, as I’ve said – up to the moment when not only the disease will be easily cured but also the damages caused by the freezing will be restored. With the occasional “bonus” of an indefinite prolongment of life in case the aging process is detained or restored.It is no news that the extreme low temperature paralyzes the activities of the cell-destructing toxins. And in cold regions there are cases of people found apparently dead, with a severe hypothermia, frozen for two or three hours, who, when properly heated and with the aid of medicines, are able to return to their normal condition. And, as I’ve said, the freezing of bovine and human sperms is a scientifically trivial procedure and there is no evidence that the calves and persons conceived with frozen sperm are in any way inferior to those conceived as usual.The large technical problem in cryonics – let’s adopt, at least for the moment, this designation – resides in the fact that our cells contain a high percentage of water. And when water freezes there is the building of crystals provided with edges that pierce the cell membrane. As I’ve deduced, in the freezing process, water also “leaks”, freezing outside the cells, among them. With the changing from water into ice crystals, there is an expansion of the liquid; something similar to the rupture of pipes that take water to the houses in the cold climate Countries. In order to minimize such cell damages, the entities that currently freeze human beings remove the individual’s blood soon after the decease, injecting in the individual’s arteries and veins a substance named glycerol, which mitigates the problem of crystal building. And they soak the bodies in anticoagulant agents, allowing the water to remain in very low temperatures without freezing. Those liquids are at least similar, I suppose, to those utilized in the vehicles’ radiators in cold Countries.The enthusiasts of cryonics have their stakes in the invention of a future technique that will solve the ice crystals problem. Much larger problems, they say, have already been solved by humankind. Why would this sole one be unsolvable?Another approach of the new pioneers is in the future use of nanotechnology, that is, the technique of creation of microscopic “machines” that, when injected immediately after thawing, would repair, one by one, the damaged cells. As far as I know, the person who developed the speculations concerning this ultra-revolutionary outlook – nanotechnology, reconstruction of things in the molecular level – is a man named Eric Drexler, who published a book entitled Engines of Creation, and a more technical work entitled Nanosystems.The use of nanotechnology (nano comes from the Greek nânos, meaning dwarf) for the repair of millions of cells that were damaged by freezing is, from the intellectual point of view, more difficult to “be swallowed”. The manufacture of such “machines” seems to me something to be thought just in the very remote future, far beyond one century. It is certain that genetic engineering already works in the molecular level, changing the position of genes inside the cromossomes, but it is too much to believe that so soon those microscopic “machines” may be created – in protein, moreover! – and will be able to repair, one by one, the damaged cells.The champions of this new technique, nanotechnology, – which would be, in Biology and other areas, more revolutionary than the computer chip – argue that some viruses already do that without a previous universitarian education. Those minute beings adhere to a bacterium’s membrane, drill a hole there, inject their ADNs inside the bacterium and it starts generating, not new bacteria, but new viruses. They become “factories” or “wombs” of invading viruses.How nature gets such ingeniousnesses is actually a mistery. Religious people have a name for that. And a larger mystery is the very anatomy and physiology of the vertebrates. But we, human beings, “instructing” a “gadget” created by Man, to repair the cells damaged, or cause the creation of healthy duplicates of those cells themselves will be a task for a very remote future, if we get there.I have nothing against this ambitious intention to utilize nanotechnology. The world has nothing to lose, except time, with such projects, but I suppose that science will solve the frozen cells’ impairment problem following another route: preventing the building of crystals.Someone with common sense may ask: “how is it that there are people in the USA who risk their money in such adventure when the technicians themselves confess that they haven’t already “ressucitated” any patient?The answer is simple. If the patient suffers from an incurable disease and just waits for death to be buried or cremated, the percentage of chance to return to life is zero. If someone is frozen and “awaken” within fifty or one hundred years, the chance will be higher than zero, because scientific evolution is getting faster. In theory, at least, this fast freezing followed by a return to the status quo is perfectly possible, provided that the proper technique is discovered.In 1966, a Japanese scientist, Isamu Suda, froze a cat’s brain after soaking it in glycerol. One month later, he carefully thawed the brain. Submitted to an EKG, the machine recorded traces of some brain functions. At least this is told in an Internet page, “A short History of Cryonics”, written by Charles Platt. The Japanese scientis’s thesis, according to the author, would have been published in Nature magazine, a renowned periodical in the Biology field.There is also a good justification, or excuse, for the non-freezing so far of patients maintained in refrigeration: they are people bearing incurable diseases, almost always cancer, the disease for which there is still no safe treatment. To thaw patients, at the moment, as a demonstration, would be an irresponsibility and breach of contract. The entity’s commitment is thawing the person when the disease will be perfectly curable and the technique able to restore the damages caused by the cold itself will be applied. We must have in mind that the extreme cold may also cause fractures.As the enthusiasts of cryonics say, some dogs were unfrozen, apparently with no damage, but only a few hours after being frozen.As we see, we are rather in a gamble situation. And since a good part of mankind likes to gamble, we suppose that very soon we will have some gamblers, here in Brazil, staking their money.A problem that still hinders the diffusion of this unusual attempt to survive is the financial cost. The entities that at first were devoted to that activity received from the patients’ relatives the promise of a monthly contribution for the defrayal of the service of preserving the body in liquid nitrogen. As thermally insulated as the body was in the box _”dwar” – some of the environment heat penetrates in the aluminum container, causing part of the nitrogen to evaporate. So, there is the need to add more liquid nitrogen from time to time, costing money, not much, because nitrogen in itself is well supplied in the nature.The experience, however, proved that this financial system wasn’t proper. The “dead person’s relatives soon lost their interest in applying their resources in something that was so uncertain – and conflicting with their own interests. If the “nutty old man” really “wakes up” – they seemed to think – won’t he demand the inheritance money back? And, without resources for the maintenance of the bodies, the patients ended up unfreezing.In 1978, a demand arouse in the Unites States, severely shaking the already small trust of people in the fable of freezing people. The episode was known as “The Chatsworth Scandal”.Robert Nelson, the first “cryonaut”, a strong enthusiast of the subject, maybe a honest man who previously was a mere technician of TV sets, was the founder of “CSC – Cryonic Society of California”. Either in good or bad faith, he was accused, by the relatives of one of his patients, of negligence in the patients preservation, allowing them to thaw. Journalists, police officers and medical examiners obtained a warrant to examine the basement of the company and found out that the bodies were only partially frozen, resulting in the sentencing of CSC to pay high damages, together with the funeral agent who helped him in the works of preparation of the patients.At the Court, Robert Nelson alleged that the patients’ relatives who didn’t pay for the maintenance were the same claiming they were victims of pain and suffering. Those ones, on their turn, argued that they didn’t pay exactly because they didn’t trust in the business earnestness. As I infer – because I don’t have means to examine the case deeply – the issue got similar to the old dispute over who came first: the egg or the hen.Anyway, the case had a ruinous repercussion to the cryonics reputation but it was useful to prove the system’s mistake of putting in the hands of the relatives of the “dead person” the task of paying for the patient’s maintenance. Thus, the tireless enthusiasts of the novelty started demanding advanced payment.The new financial technique, however, presented the drawback of requiring a high allowance for something that was so uncertain. And the relatives of the “nutty old man” had good reasons to be against this decrease in their financial prospects. Even because, let’s admit, the field is, in thesis, promising to every sort of swindler. How may one know if the “ice businessman” is really acting in good faith? Who may confirm that the “company” will be operating within twenty, thirty or fifty years?Again, the bold North Americans found a more ingenious financial way out: the patient, well before the end, even before getting ill, makes a life insurance, appointing the “freezing” entity as the beneficiary. With a relatively low monthly premium, a thirty-five year old man is able to nourish within himself the idea of being almost everlasting – assuming that within fifty or one hundred years the aging process will be reversed by means of genetic engineering. And the likely heirs will not feel themselves at risk, provided that their beloved father makes a will expressly determining what his children will definitively inherit after the freezing.The few entities working in that area in the USA advise the applicants to hire the insurance as soon as possible because, the younger they are, the smaller will be the premium demanded by the insurance companies. Remember that people suffering from severe diseases aren’t accepted by insurance companies, and if one omits the disease in the proposal, the compensation won’t be paid.As time went by, the entities in the sector also learned that they had to operate in a more professional basis, decreasing the financial risks of a compensation claim that may ruin any company. If one of those companies has to pay a high compensation, it will be deprived of the funds required to maintain the other patients who have nothing to do with that procedure, and who will see their hopes thawed together with their physical shapes.Thinking about that, the companies started operating in distinct segments: some of them just take care of the first operations, soon after the patient’s death. Others only take care of the preservation. Distinct company objects and assets. If one relative thinks that his/her father was “pressed” to sign the agreement when he wasn’t able to discriminate what he was doing because of his frail conditions – and he/she convinces the court of that – , the compensation will be sentenced only to the company that made the agreement with the patient. The entity in charge of preserving has nothing to do with this defect of the will, with that demand, and won’t be shaken at the point of risking the company object thereof.As we may see, when this odd activity reaches Brazil, the legal issues to be solved will be many. Mainly in the criminal area, for freezing the patient as soon after death as possible is in the core of this new activity. In many cases, the presence of paramedics – the future patient starts wearing a bracelet, or a collar, for the fast finding and calling of the technicians – beside the impending corpse, waiting, alert, will be able to characterize inducement to suicide. A patient with the first symptoms of “Alzheimer’s disease” will find it convenient to be frozen before his/her brain gets fully damaged. Technically, there will be a suicide. And the “team” of the preserving entity will hardly be free from the suspicion of homicide or inducement to suicide. Another problem: if a criminal is frozen, is he/she under limitation during that time? The laws, as we see, must be deeply changed, mainly with the creation of surveillance mechanisms for the entities, maybe with the work of the Attorney General office. “And now this, on top of everything else!”, will be the reaction of any member of parquet.The religions will rise against the idea. They will say: “And the soul, how does it remain? During the freezing years, where will it be?” A Buddhist will say that it was reincarnated. So, how can we bring it back, leaving the new body it is in?It all sounds now as idle digression or almost as an insult. But I’m sure that Mankind will follow this way. Whether it is correct, I don’t know. Even because, especially if it is correct, social problems will arise, including the populational increase. Something that may minimize the development of that activity is the prospect, increasingly larger, of genetic engineering to change the aging process of people still alive, causing the cells to renew as if it was a young body. And also the cure of diseases that are currently incurable. But certainly there will be incurable diseases, even with genetics engineering. And maybe diseases that are still unknown.One thing is certain: mankind longs for immortality. In any possible way. Spiritual or material. Previously, only material because there were no alternatives. Now, with this mere enticement of a biological eternity, hundreds or thousands of people will try to embark in this adventure, provided that it is economically viable. They will purely and simply take the risk. Including the risk of “waking up” in a fully different world, something that is, for many, exciting, not sad. They assume that the “new world” will be less hostile than the current one because it will be more civilized. Men and women from the stone age waking up in the elegant Paris.There will always be the adventurers. The vikings risked their lives through the seas, without being excessively prudent, even without a compass.For many, life is excessively short. Even now, with an average expectancy of seventy-five years of age. Up to the twenty, the “yearling” happily goes at a gallop through the world, neighing and kicking in joy – if it is lucky in the “choice” of parents. Then, it falls in the rough fight for survival. It fights to support the family, rarely working in something it really likes to do. Reaching the retirement age, it would be able to make what it really likes to do, but then, it realizes that its strengths are reaching the end, waving goodbye. And it dies frustrated.Cryonics will be essential for the Space conquest. For mankind to reach other solar systems, even in our galaxy, spacecrafts must carry extremely longevous people, in view of the huge distances. And no astronaut expects to live, at this moment, three hundred or four hundred years.Ars longa, vita brevis, has always been the artists’ complaint. And don’t argue that our children and grandchildren will complete the works started by us. No! They are born with other concerns. And they are entitled to them. The parent is, say, a bright scientist, with a long work project in front of him/her. The child, however, prefers to ride a motorcycle, write poems, construct buildings, design cars or write law books. Each generation coming into the world is a new barbarian invasion, someone said. The scientist’s work will be, maybe, finished by a stranger. And a long time later, because he/she maybe won’t be so “devoted”. Even a doctor, dedicated only to his/her profession, will hardly be able to embrace all the medical knowledge of our time. And this limitation, for some, “hurts”. If, for one hand, there are people who rebuke that excessive intellectual curiosity, others defend it, saying that such curious people are the salt of the earth. Others would like to be fluent in several languages. For such curious people, our current life range isn’t satisfactory. There are those who enjoy living and are willing to fight for a very larger life range.So far, “eternity” was restricted to the soul, or memory. It had to do with leaving a good reputation on the earth. Writing a book, painting a famous picture, composing an unsurpassed music, being nominated for the Oscar. At least the name of one street or on a bench in the square of some little town in the inland. Or even, paradoxically, if there is no other alternative, committing a famous crime, murdering a statesman or a rock singer.Mankind doesn't accept the idea of nothingness. People turn restlessly in their tombs, half discarnate, grinding their teeth, fake or real, just to think that no one will remember them as important persons.This is mankind. And for that reason, I have no doubt that, even here in Brazil, entities will arise – honest or dishonest, as in every other activity – that will exploit this never fulfilled longing for a much longer and certainly more promising life in unknown times. If they wake up somewhat weak-minded – in case they wake up – what can we do? And the insurance companies will be interested in that void that hasn’t been filled for the time being. The doctors themselves, currently cautious as to the subject – because they fear to get discredited – will take a better look into the technical possibilities. They will certainly conclude that the task of saving mankind from the diseases and from pain does not necessarily imply restricting their mission to the use of the technical resources currently available.I close this writing with a request. If, occasionally, some doctor or scientist reads this article and is interested in the subject, I would be very interested in knowing his/her arguments. Mainly if they are opposed to the actual possibility, even in the future, of a successful unfreezing. After all, I’ve only read articles published by the enthusiasts of the idea.
DOCTRINE
1.10 “CRYONICS”: A POLEMYC PLUNGE INTO THE FUTURE
FRANCISCO CÉSAR PINHEIRO RODRIGUES
When Alberto Santos Dumont, on October 23rd, 1906, in the fields of Bagatelle, Paris, got to raise in the air his phantasmagoric and awkward “14-Bis”, he couldn’t imagine that in that very moment he was casting the seeds of a future branch of Law, the Aeronautical Law, accepted as an autonomous branch in the most recent Brazilian constitutions.It is amazing to know nowadays that, in the second flight, on November 12th of the same year, the apparatus flew 220 meters in 31 seconds, in the “vertiginous” 2-meter height. It was Humankind’s first controlled flight. A speed – 37.5 km/h – that was slightly inferior, of course, to the “14 Bis” great-great-great-grandchild, the supersonic Concorde.The evolution, as we may see, was fast. In May, 1927, Charles Lindbergh made the first solo, nonstop transatlantic flight, from west to east, proving the human being’s creative speed, at least in the technical area. Those who occasionally have watched a documentary film on the history of rockets, would certainly get amazed with the disorientation of those initial artifacts that, contradicting the engineers’ calculations, seem like gigantic serpent fireworks, deprived of the slightest notion of the place where they were going to fall. In those ancient documentaries it is impossible not to laugh – seeing the escape speed of the legs of technicians, engineers and workers – much higher, on the ground, than the “14 Bis” speed on the air. Filmed at a distance, the men look like desperate ants, running away from the probable place of impact of that machine that was crazy and also mortal, because it was filled with tons of fuel.In spite of that difficult beginning, in 1969 the “Apollo 11”, a spacecraft designed to carry astronauts, landed on the Sea of Tranquillity in the Moon. Something at first inconceivable, for many – even for those with a scientific education – because spacecrafts don’t have flaps that may have influence on their steering. Flaps are useless in the vacuum. As somebody has already remarked, air is the enemy of the rocket and vacuum is the enemy of spacecrafts. And we shouldn’t forget that when the rocket is set in motion, our planet isn’t motionless. Earth’s rotation speed is significant. We aren’t centrifugally “spat” into space because of gravity. The shortest calculation error in the project and the spacecraft crew would be lost in the huge vacuum in a one-way trip. How was such voyage calculated with no errors? Today, the task is very easy, compared to the project of sending a spacecraft carrying astronauts to the planet Mars.The rocket “nuts” – don’t forget the chief one, the German Von Braun – didn’t know, at that time, that they were launching not only their rockets but also the foundations of another branch of Law, the Space Law, equally raised to recognition by the Constitution legislators (Art. 22 of the Federal Constitution, 1988).Von Braun was so important to the prudent North-American people – who were not acquainted with the rocket technology at that time – that the launching bases of the “V-2” (rockets that tormented London in World War II) could be destroyed by the Royal Air Force, provided that the dorms where the scientists lodge were spared. A detail that raised difficulties to the British pilots, forcing them to get dangerously near to select their targets. But the English pilots, though frustrated with the restraint, showed that they were a good shot. Von Braun and his associates survived the air raids and, when the war was over, were requested to work in the United States, urging the space conquest.A technological advance that, I suppose, is still going to shake our civilization – with obvious influences on the juridical area – maybe in a much deeper scale than the invention of the airplane or the rocket, is in the use of low temperatures as a way to preserve human bodies affected by severe accidents or diseases that are still incurable. Our children maybe won’t, but at least our grandchildren who graduate in Law will have to pore over the creation of new juridical rules to discipline the prickly field of cryogenics, or cryobiology, in the item of conservation of human beings in extremely low temperatures for a future thawing. Consequently, there will be, in a remote future, a “Cryonics Law”.The preservation of fruit, meat, fish, semen or fertilized ova in an extremely cold temperature is routine nowadays. Such activities are connected to cryogenics. However, for the “science” or technique – still incipient – of preservation of human beings no specific term has been coined yet in Portuguese. And the natural way for this “christening” seems to be the “Portuguesecizing” of the English word cryonics, adopted by Robert Ettinger, a North American Physics Professor, in his book The prospect of immortality, published in 1964. The access to information on that subject in the internet is only possible using the keyword cryonics.“Criônica”, therefore will be the probable designation of that latest research area in Portuguese. Anyway, the word is of the least importance and the subscriber hereto doesn’t object to the use of any other term that may be best chosen by authorized minds in the academic world.Even the most tolerant reader must be wondering: - What causes the author of this article to look for such an odd subject? Isn’t this issue better located in a science fiction magazine?In fact, the subject fits both spaces. And in the Medical one as well. I ponder, as a justification, that the Law graduates are also entitled to speculate on the future, though the Law is usually remembered only after the pioneer work of scientists and inventors. And only when the first conflicts of interest arise. Law is like the night-clubs’ bully doormen or the police officer: it is called only after the first fights start on the floor. Since in Brazil, at least, there hasn’t already been any legal conflict connected with the freezing of people for a future reviving – and not even the deliberate freezing in itself – it is natural that even the word is unknown here. And I satisfy the reader’s curiosity as to the source of the subject.Several months ago I read in the international news section of a newspaper published in São Paulo that an English lady, probably with an incurable disease – the news was very concise, almost telegraphic - , had contacted a company, or an entity in England that is dedicated to this new and odd activity of preservation of human beings in liquid nitrogen – minus 196º Celsius – up to moment when science will be able not only to cure the disease, but also to repair the damage caused by the prolonged freezing.The news also said that the price demanded for the preservation of the whole body was very high – save that the newspaper committed a mistake, it was US$ 800,000. So, since she didn’t have such amount of money, the lady hired the company just to preserve her head (“neuro-suspension”), implying a cost reduction to US$ 300,000. She surely relied on the future possibility, though a remote one, of a “body transplant”.Seemingly, the lady has paid dearly because, currently in California there is an entity named “Alcor Life Extension Foundation” that charges one hundred and twenty thousand dollars to preserve the whole body. A reduction that seems to be a large progress, in terms of diffusion of the idea – taking for granted that it is a serious entity. The exotic side to the initiative doesn't imply dishonesty. And, for what I’ve read, a huge enthusiasm is transmitted to those people interested in turning the mere possibility into reality.Since it was a news on an actual fact, not a science fiction joke, or horror literature - provided that it was an unlikely irresponsibility of the newspaper – , I got interested in the issue as a subject for a future fiction work, without thinking in the legal developments.The backers of the revolutionary novelty are supported by the theoretical possibility of preservation of cells, in the liquid nitrogen temperature – minus 196º Celsius, as I’ve said – up to the moment when not only the disease will be easily cured but also the damages caused by the freezing will be restored. With the occasional “bonus” of an indefinite prolongment of life in case the aging process is detained or restored.It is no news that the extreme low temperature paralyzes the activities of the cell-destructing toxins. And in cold regions there are cases of people found apparently dead, with a severe hypothermia, frozen for two or three hours, who, when properly heated and with the aid of medicines, are able to return to their normal condition. And, as I’ve said, the freezing of bovine and human sperms is a scientifically trivial procedure and there is no evidence that the calves and persons conceived with frozen sperm are in any way inferior to those conceived as usual.The large technical problem in cryonics – let’s adopt, at least for the moment, this designation – resides in the fact that our cells contain a high percentage of water. And when water freezes there is the building of crystals provided with edges that pierce the cell membrane. As I’ve deduced, in the freezing process, water also “leaks”, freezing outside the cells, among them. With the changing from water into ice crystals, there is an expansion of the liquid; something similar to the rupture of pipes that take water to the houses in the cold climate Countries. In order to minimize such cell damages, the entities that currently freeze human beings remove the individual’s blood soon after the decease, injecting in the individual’s arteries and veins a substance named glycerol, which mitigates the problem of crystal building. And they soak the bodies in anticoagulant agents, allowing the water to remain in very low temperatures without freezing. Those liquids are at least similar, I suppose, to those utilized in the vehicles’ radiators in cold Countries.The enthusiasts of cryonics have their stakes in the invention of a future technique that will solve the ice crystals problem. Much larger problems, they say, have already been solved by humankind. Why would this sole one be unsolvable?Another approach of the new pioneers is in the future use of nanotechnology, that is, the technique of creation of microscopic “machines” that, when injected immediately after thawing, would repair, one by one, the damaged cells. As far as I know, the person who developed the speculations concerning this ultra-revolutionary outlook – nanotechnology, reconstruction of things in the molecular level – is a man named Eric Drexler, who published a book entitled Engines of Creation, and a more technical work entitled Nanosystems.The use of nanotechnology (nano comes from the Greek nânos, meaning dwarf) for the repair of millions of cells that were damaged by freezing is, from the intellectual point of view, more difficult to “be swallowed”. The manufacture of such “machines” seems to me something to be thought just in the very remote future, far beyond one century. It is certain that genetic engineering already works in the molecular level, changing the position of genes inside the cromossomes, but it is too much to believe that so soon those microscopic “machines” may be created – in protein, moreover! – and will be able to repair, one by one, the damaged cells.The champions of this new technique, nanotechnology, – which would be, in Biology and other areas, more revolutionary than the computer chip – argue that some viruses already do that without a previous universitarian education. Those minute beings adhere to a bacterium’s membrane, drill a hole there, inject their ADNs inside the bacterium and it starts generating, not new bacteria, but new viruses. They become “factories” or “wombs” of invading viruses.How nature gets such ingeniousnesses is actually a mistery. Religious people have a name for that. And a larger mystery is the very anatomy and physiology of the vertebrates. But we, human beings, “instructing” a “gadget” created by Man, to repair the cells damaged, or cause the creation of healthy duplicates of those cells themselves will be a task for a very remote future, if we get there.I have nothing against this ambitious intention to utilize nanotechnology. The world has nothing to lose, except time, with such projects, but I suppose that science will solve the frozen cells’ impairment problem following another route: preventing the building of crystals.Someone with common sense may ask: “how is it that there are people in the USA who risk their money in such adventure when the technicians themselves confess that they haven’t already “ressucitated” any patient?The answer is simple. If the patient suffers from an incurable disease and just waits for death to be buried or cremated, the percentage of chance to return to life is zero. If someone is frozen and “awaken” within fifty or one hundred years, the chance will be higher than zero, because scientific evolution is getting faster. In theory, at least, this fast freezing followed by a return to the status quo is perfectly possible, provided that the proper technique is discovered.In 1966, a Japanese scientist, Isamu Suda, froze a cat’s brain after soaking it in glycerol. One month later, he carefully thawed the brain. Submitted to an EKG, the machine recorded traces of some brain functions. At least this is told in an Internet page, “A short History of Cryonics”, written by Charles Platt. The Japanese scientis’s thesis, according to the author, would have been published in Nature magazine, a renowned periodical in the Biology field.There is also a good justification, or excuse, for the non-freezing so far of patients maintained in refrigeration: they are people bearing incurable diseases, almost always cancer, the disease for which there is still no safe treatment. To thaw patients, at the moment, as a demonstration, would be an irresponsibility and breach of contract. The entity’s commitment is thawing the person when the disease will be perfectly curable and the technique able to restore the damages caused by the cold itself will be applied. We must have in mind that the extreme cold may also cause fractures.As the enthusiasts of cryonics say, some dogs were unfrozen, apparently with no damage, but only a few hours after being frozen.As we see, we are rather in a gamble situation. And since a good part of mankind likes to gamble, we suppose that very soon we will have some gamblers, here in Brazil, staking their money.A problem that still hinders the diffusion of this unusual attempt to survive is the financial cost. The entities that at first were devoted to that activity received from the patients’ relatives the promise of a monthly contribution for the defrayal of the service of preserving the body in liquid nitrogen. As thermally insulated as the body was in the box _”dwar” – some of the environment heat penetrates in the aluminum container, causing part of the nitrogen to evaporate. So, there is the need to add more liquid nitrogen from time to time, costing money, not much, because nitrogen in itself is well supplied in the nature.The experience, however, proved that this financial system wasn’t proper. The “dead person’s relatives soon lost their interest in applying their resources in something that was so uncertain – and conflicting with their own interests. If the “nutty old man” really “wakes up” – they seemed to think – won’t he demand the inheritance money back? And, without resources for the maintenance of the bodies, the patients ended up unfreezing.In 1978, a demand arouse in the Unites States, severely shaking the already small trust of people in the fable of freezing people. The episode was known as “The Chatsworth Scandal”.Robert Nelson, the first “cryonaut”, a strong enthusiast of the subject, maybe a honest man who previously was a mere technician of TV sets, was the founder of “CSC – Cryonic Society of California”. Either in good or bad faith, he was accused, by the relatives of one of his patients, of negligence in the patients preservation, allowing them to thaw. Journalists, police officers and medical examiners obtained a warrant to examine the basement of the company and found out that the bodies were only partially frozen, resulting in the sentencing of CSC to pay high damages, together with the funeral agent who helped him in the works of preparation of the patients.At the Court, Robert Nelson alleged that the patients’ relatives who didn’t pay for the maintenance were the same claiming they were victims of pain and suffering. Those ones, on their turn, argued that they didn’t pay exactly because they didn’t trust in the business earnestness. As I infer – because I don’t have means to examine the case deeply – the issue got similar to the old dispute over who came first: the egg or the hen.Anyway, the case had a ruinous repercussion to the cryonics reputation but it was useful to prove the system’s mistake of putting in the hands of the relatives of the “dead person” the task of paying for the patient’s maintenance. Thus, the tireless enthusiasts of the novelty started demanding advanced payment.The new financial technique, however, presented the drawback of requiring a high allowance for something that was so uncertain. And the relatives of the “nutty old man” had good reasons to be against this decrease in their financial prospects. Even because, let’s admit, the field is, in thesis, promising to every sort of swindler. How may one know if the “ice businessman” is really acting in good faith? Who may confirm that the “company” will be operating within twenty, thirty or fifty years?Again, the bold North Americans found a more ingenious financial way out: the patient, well before the end, even before getting ill, makes a life insurance, appointing the “freezing” entity as the beneficiary. With a relatively low monthly premium, a thirty-five year old man is able to nourish within himself the idea of being almost everlasting – assuming that within fifty or one hundred years the aging process will be reversed by means of genetic engineering. And the likely heirs will not feel themselves at risk, provided that their beloved father makes a will expressly determining what his children will definitively inherit after the freezing.The few entities working in that area in the USA advise the applicants to hire the insurance as soon as possible because, the younger they are, the smaller will be the premium demanded by the insurance companies. Remember that people suffering from severe diseases aren’t accepted by insurance companies, and if one omits the disease in the proposal, the compensation won’t be paid.As time went by, the entities in the sector also learned that they had to operate in a more professional basis, decreasing the financial risks of a compensation claim that may ruin any company. If one of those companies has to pay a high compensation, it will be deprived of the funds required to maintain the other patients who have nothing to do with that procedure, and who will see their hopes thawed together with their physical shapes.Thinking about that, the companies started operating in distinct segments: some of them just take care of the first operations, soon after the patient’s death. Others only take care of the preservation. Distinct company objects and assets. If one relative thinks that his/her father was “pressed” to sign the agreement when he wasn’t able to discriminate what he was doing because of his frail conditions – and he/she convinces the court of that – , the compensation will be sentenced only to the company that made the agreement with the patient. The entity in charge of preserving has nothing to do with this defect of the will, with that demand, and won’t be shaken at the point of risking the company object thereof.As we may see, when this odd activity reaches Brazil, the legal issues to be solved will be many. Mainly in the criminal area, for freezing the patient as soon after death as possible is in the core of this new activity. In many cases, the presence of paramedics – the future patient starts wearing a bracelet, or a collar, for the fast finding and calling of the technicians – beside the impending corpse, waiting, alert, will be able to characterize inducement to suicide. A patient with the first symptoms of “Alzheimer’s disease” will find it convenient to be frozen before his/her brain gets fully damaged. Technically, there will be a suicide. And the “team” of the preserving entity will hardly be free from the suspicion of homicide or inducement to suicide. Another problem: if a criminal is frozen, is he/she under limitation during that time? The laws, as we see, must be deeply changed, mainly with the creation of surveillance mechanisms for the entities, maybe with the work of the Attorney General office. “And now this, on top of everything else!”, will be the reaction of any member of parquet.The religions will rise against the idea. They will say: “And the soul, how does it remain? During the freezing years, where will it be?” A Buddhist will say that it was reincarnated. So, how can we bring it back, leaving the new body it is in?It all sounds now as idle digression or almost as an insult. But I’m sure that Mankind will follow this way. Whether it is correct, I don’t know. Even because, especially if it is correct, social problems will arise, including the populational increase. Something that may minimize the development of that activity is the prospect, increasingly larger, of genetic engineering to change the aging process of people still alive, causing the cells to renew as if it was a young body. And also the cure of diseases that are currently incurable. But certainly there will be incurable diseases, even with genetics engineering. And maybe diseases that are still unknown.One thing is certain: mankind longs for immortality. In any possible way. Spiritual or material. Previously, only material because there were no alternatives. Now, with this mere enticement of a biological eternity, hundreds or thousands of people will try to embark in this adventure, provided that it is economically viable. They will purely and simply take the risk. Including the risk of “waking up” in a fully different world, something that is, for many, exciting, not sad. They assume that the “new world” will be less hostile than the current one because it will be more civilized. Men and women from the stone age waking up in the elegant Paris.There will always be the adventurers. The vikings risked their lives through the seas, without being excessively prudent, even without a compass.For many, life is excessively short. Even now, with an average expectancy of seventy-five years of age. Up to the twenty, the “yearling” happily goes at a gallop through the world, neighing and kicking in joy – if it is lucky in the “choice” of parents. Then, it falls in the rough fight for survival. It fights to support the family, rarely working in something it really likes to do. Reaching the retirement age, it would be able to make what it really likes to do, but then, it realizes that its strengths are reaching the end, waving goodbye. And it dies frustrated.Cryonics will be essential for the Space conquest. For mankind to reach other solar systems, even in our galaxy, spacecrafts must carry extremely longevous people, in view of the huge distances. And no astronaut expects to live, at this moment, three hundred or four hundred years.Ars longa, vita brevis, has always been the artists’ complaint. And don’t argue that our children and grandchildren will complete the works started by us. No! They are born with other concerns. And they are entitled to them. The parent is, say, a bright scientist, with a long work project in front of him/her. The child, however, prefers to ride a motorcycle, write poems, construct buildings, design cars or write law books. Each generation coming into the world is a new barbarian invasion, someone said. The scientist’s work will be, maybe, finished by a stranger. And a long time later, because he/she maybe won’t be so “devoted”. Even a doctor, dedicated only to his/her profession, will hardly be able to embrace all the medical knowledge of our time. And this limitation, for some, “hurts”. If, for one hand, there are people who rebuke that excessive intellectual curiosity, others defend it, saying that such curious people are the salt of the earth. Others would like to be fluent in several languages. For such curious people, our current life range isn’t satisfactory. There are those who enjoy living and are willing to fight for a very larger life range.So far, “eternity” was restricted to the soul, or memory. It had to do with leaving a good reputation on the earth. Writing a book, painting a famous picture, composing an unsurpassed music, being nominated for the Oscar. At least the name of one street or on a bench in the square of some little town in the inland. Or even, paradoxically, if there is no other alternative, committing a famous crime, murdering a statesman or a rock singer.Mankind doesn't accept the idea of nothingness. People turn restlessly in their tombs, half discarnate, grinding their teeth, fake or real, just to think that no one will remember them as important persons.This is mankind. And for that reason, I have no doubt that, even here in Brazil, entities will arise – honest or dishonest, as in every other activity – that will exploit this never fulfilled longing for a much longer and certainly more promising life in unknown times. If they wake up somewhat weak-minded – in case they wake up – what can we do? And the insurance companies will be interested in that void that hasn’t been filled for the time being. The doctors themselves, currently cautious as to the subject – because they fear to get discredited – will take a better look into the technical possibilities. They will certainly conclude that the task of saving mankind from the diseases and from pain does not necessarily imply restricting their mission to the use of the technical resources currently available.I close this writing with a request. If, occasionally, some doctor or scientist reads this article and is interested in the subject, I would be very interested in knowing his/her arguments. Mainly if they are opposed to the actual possibility, even in the future, of a successful unfreezing. After all, I’ve only read articles published by the enthusiasts of the idea.
LAW Of the ARBITRATION LAW Nº 9.307, 23 OF SEPTEMBER OF 1996.
It makes use on the arbitration. The PRESIDENT Of the REPUBLIC I make to know that the National Congress decrees and I sanction the following Law:
CHAPTER I GENERAL DISPOSALS
CHAPTER I GENERAL DISPOSALS
Art. 1st - the people capable to contract could use themselves the arbitration to nullify relative litigations the available patrimonial rights.
Art. 2nd- the arbitration could be of right or fairness, the criterion of the parts. § 1º - the parts Will be able to choose, freely, the rules of law that will be applied in the arbitration, since that it does not have breaking to the good customs and the public order. § 2º - They will be able, also, the parts to stipulate that the arbitration if on the basis of carries through the general principles of right, in the uses and customs and the international rules of commerce.
CHAPTER II Of the ARBITRATION CONVENTION and ITS EFFECT
Art. 3rd - the interested people can submit to the solution of its litigations to the arbitrational judgment by means of arbitration convention, thus understood the arbitragem clause and the arbitrational commitment.
Art. 4th - the arbitragem clause is the convention through which the parts in a contract commits to relatively submit it to the arbitration the litigations that can come to appear, to such contract. § 1º - the arbitragem clause must be stipulated by writing, being able to be inserta in the proper contract or separated document that it if relates. § 2º - In adhesion contracts, the arbitragem clause will only have effectiveness if the adherent one to take the initiative to institute the arbitration or to agree, express, with its institution, since that for writing in attached document or boldface, with the signature or visa especially for this clause.
Art. 5th - Referring the parts, in the arbitragem clause, to the rules of some institucional arbitrational agency or specialized entity, the arbitration will be instituted and processed in accordance with such rules, being able, equally, the parts to establish in the proper clause, or another document, the form stipulated for the institution of the arbitration.
Art. 5th - Referring the parts, in the arbitragem clause, to the rules of some institucional arbitrational agency or specialized entity, the arbitration will be instituted and processed in accordance with such rules, being able, equally, the parts to establish in the proper clause, or another document, the form stipulated for the institution of the arbitration.
Art. 6th - not having previous agreement on the form to institute the arbitration, the interested person will reveal to the other part its intention to give beginning to the arbitration, for saw postcard or for another way any of communication, by means of act of receiving evidence, convoking it for, in day, certain hour and place, to firm the arbitrational commitment. Only paragraph - not appearing the convoked part or, appearing, to oppose to firm it the arbitrational commitment, will be able to another part to consider the demand that it deals with art. 7º of this Law, before the agency of the Judiciary Power the one that, originariamente, would touch the judgment of the cause.
Art. 7th - Existing arbitragem clause and having resistance how much to the institution of the arbitration, the interested person will be able to require the citation of the other part to appear in judgment in order to cultivate the commitment, assigning the judge special hearing for such end. § 1º - the author will indicate, with precision, the object of the arbitration, instructing the order with the document that to contain the arbitragem clause. § 2º - Appearing the parts to the hearing, the judge will try, previously, the conciliation concerning the litigation. Not getting success, the judge will try to lead the parts to the celebration, of common agreement, the arbitrational commitment. § 3º - not agreeing the parts on the terms of the commitment, will decide the judge, after to hear the male defendant, on its content, in the proper hearing or the stated period of ten days, respected the disposals of the arbitragem clause and taking care of to the made use one in arts. 10 and 21, § 2º, of this Law. § 4º - the arbitragem clause is swum to make use on the nomination of arbitrators, will fit to the judge, heard the parts, to decree the respect, being able to nominate only arbitrator for the solution of the litigation. § 5º - the absence of the author, without just reason, to the hearing assigned for the drafting of the arbitrational commitment, will import the abatement of action without merit judgment. § 6º - not appearing the male defendant to the hearing, will fit to the judge, heard the author, to decree regarding the content of the commitment, being nominated only arbitrator. § 7º - the sentence that to judge originating the order will be valid as arbitrational commitment.
Art. 8th - the arbitragem clause is independent in relation to the contract where he will be inserta, of such luck that the nullity of this does not imply, necessarily, the nullity of the arbitragem clause. Only paragraph - It will fit to the arbitrator to decide ex-officio, or for provocation of the parts, the questions concerning the existence, validity and effectiveness of the convention of arbitration and the contract that the arbitragem clause contains.
Art. 8th - the arbitragem clause is independent in relation to the contract where he will be inserta, of such luck that the nullity of this does not imply, necessarily, the nullity of the arbitragem clause. Only paragraph - It will fit to the arbitrator to decide ex-officio, or for provocation of the parts, the questions concerning the existence, validity and effectiveness of the convention of arbitration and the contract that the arbitragem clause contains.
Art. 9th - the arbitrational commitment is the convention through which the parts submits a litigation to the one arbitration or more people, being able to be judicial or extrajudicial. § 1º - judicial the arbitrational commitment will be celebrated for term in files of legal documents, before the judgment or court, where the demand has course. § 2º - the extrajudicial arbitrational commitment will be celebrated by act under private signature, signed for two witnesses, or public act.
Art. 10 - It will consist, obligatorily, of the arbitrational commitment: I - the name, profession, civil state and domicile of the parts; II - the name, profession and domicile of the arbitrator, or the arbitrators, or, will be the case, the identification of the entity to which the parts to delegate the indication of arbitrators; III - the substance that will be object of the arbitration; e IV - the place where the award will be pronounced.
Art. 11 - It will be able, still, the arbitrational commitment to contain: I - local, or places, where the arbitration will be developed; II - the authorization so that the arbitrator or the arbitrators judges for fairness, if thus will be stipulated by the parts; Ill - the stated period for presentation of the award; IV - the indication of the national law or the applicable corporative rules to the arbitration, when thus to stipulate the parts; V - the declaration of the responsibility for the payment of the honorary ones and the expenditures with the arbitration; e Vl - the setting of the honorary ones of the arbitrator, or the arbitrators.
Only paragraph - Fixing the parts the honorary ones of the arbitrator, or the arbitrators, in the arbitrational commitment, this will constitute extrajudicial executive heading; not having such stipulation, the arbitrator will require the agency of the Judiciary Power that would be competent to judge, originariamente, the cause that fixes them for sentence.
Only paragraph - Fixing the parts the honorary ones of the arbitrator, or the arbitrators, in the arbitrational commitment, this will constitute extrajudicial executive heading; not having such stipulation, the arbitrator will require the agency of the Judiciary Power that would be competent to judge, originariamente, the cause that fixes them for sentence.
Art. 12 - It extinguishes - the arbitrational commitment: I - excusing any of the arbitrators, before accepting the nomination, since that the parts have declared, express, not to accept substitute; II - falecendo or being disabled to give to its vote some of the arbitrators, since whom the parts declare, express, not to accept substitute; e Ill - having exhaled the stated period the one that if relate art. 11, interpolated proposition III, since that the interested person it has notified the arbitrator, or the arbitrational chief justice, granting the stated period of ten days for the utterance and presentation to it of the award.
CHAPTER III Of the ARBITRATORS
Art. 13 - any competent person can be arbitrator and that he/she has the confidence of the parts. § 1º - the parts will nominate one or more arbitrators, always in uneven number, being able to nominate, also, the respective substitutes. § 2º - When the parts to nominate arbitrators in number pair, these is authorized, since soon, to nominate plus an arbitrator. Not having agreement, they will require the parts to the agency of the Judiciary Power the one that would touch, originariamente, the judgment of the cause the nomination of the arbitrator, applicable, in whom to fit, the procedure foreseen in art. 7º of this Law. § 3º - the parts will be able, of common agreement, to establish the process of choice of the arbitrators, or to adopt the rules of an institucional arbitrational agency or specialized entity. § 4º - Being nominated some arbitrators, these, for majority, will choose the arbitrational chief justice. Not having consensus, the most aged president will be assigned. § 5º - the arbitrator or the chief justice will assign, if to judge convenient, a secretary, who could be one of the arbitrators. § 6º - In the performance of its function, the arbitrator will have to proceed with imparcialidade, independence, ability, diligence and discretion. § 7º - the arbitrator or the arbitrational court Will be able to determine to the parts the advancing of mounts of money for expenditures and diligências that to judge necessary.
Art. 14 - The people who have, with the parts or the litigation are hindered to function as arbitrators that Ihes will be submitted, some of the relations that characterize the cases of impediment or suspicion of juízes, apply-if them, in that to fit, the same duties and responsibilities, as foreseen in the Code of Civil action. § 1º - the indicated people to function as arbitrator has the duty to disclose, before the acceptance of the function, any fact that denotes doubt justified how much to its imparcialidade and independence. § 2º - the arbitrator could only be refused by reason occurred after its nomination. Its nomination could, however, be refused by previous reason, when: a) will not be nominated, directly, for the part; or b) the reason for the refusal of the arbitrator will be known later to its nomination.
Art. 15 - The interested person that to argue the refusal of the arbitrator will present, in the terms of art. 20, the respective exception, directly to the arbitrator or the arbitrational chief justice, deducing its reasons and presenting the pertinent tests. Only paragraph - Received the exception, will be moved away the suspicious or hindered arbitrator, who will be substituted, in the form from art. 16 of this Law.
Art. 16 - If the arbitrator to excuse themselves before the acceptance of the nomination, or, after the acceptance, to come to falecer, to become disabled for the exercise of the function, or will be refused, will assume its place the substitute indicated in the commitment, will have itself. § 1º - not having substitute indicated for the arbitrator, the rules of the institucional arbitrational agency or specialized entity will be applied, if the parts will have invoked them in the arbitration convention. § 2º - Nothing making use the arbitration convention and not arriving the parts at an agreement on the nomination of the arbitrator to be substituted, will proceed the interested person from the form foreseen in art. 7º of this Law, unless the parts have declared, express, in the arbitration convention, not to accept substitute.
Art. 17 - The arbitrators, when in the exercise of its functions or reason of them, they are equalized the public officers, for the effect of the criminal legislation.
Art 18 - The arbitrator is right and lay judge, and the sentence that to pronounce is not subjects the resource or the homologation for the Judiciary Power.
CHAPTER IV Of the ARBITRATIONAL PROCEDURE
Art. 19 - It is considered instituted the arbitration when accepted the nomination for the arbitrator, will be only, or for all, they will be several. Only paragraph - Instituted the arbitration and understanding the arbitrator or the arbitrational court who has necessity of explicitar some question made use in the arbitration convention, will be elaborated, together with the parts, an addend, firmed for all, that will start to be integrant part of the arbitration convention.
Art. 20 - The part that to intend to argue relative questions to the ability, suspicion or impediment of the arbitrator or the arbitrators, as well as nullity, invalidity or inefficacy of the arbitration convention, will have to make it in the first chance that will have of if revealing, after the institution of the arbitration. § 1º - Received the challenge of suspicion or impediment, he will be the arbitrator substituted in the terms of art. 16 of this Law, recognized the incompetence of the arbitrator or of the arbitrational court, as well as the nullity, invalidity or inefficacy of the arbitration convention, will be the parts sent to the agency of the competent Judiciary Power to judge the cause. § 2º - not being received the challenge, will have normal continuation the arbitration, without damage to come to be examined the decision for the agency of the competent Judiciary Power, when of the eventual bringing suit of the demand that it deals with art. 33 of this Law.
Art. 21 - The arbitration will obey the procedure established for the parts in the convention of arbitration, that will be able to refer it the rules of an institucional arbitrational agency or specialized entity, authorizing itself, still, to the parts to delegate the proper arbitrator, or to the arbitrational court, to regulate the procedure. § 1º - not having stipulation concerning the procedure, discipliná- will fit to the arbitrator or the arbitrational court lo. § 2º - They will be, always, respected in the arbitrational procedure the principles of the contradictory, of the equality of the parts, the imparcialidade of the arbitrator and its judicial discretion. § 3º - the parts will be able to claim for intermediary of lawyer, respected, always, the college to assign who represents them or attends in the arbitrational procedure. § 4º - It will compete to the arbitrator or the arbitrational court, in the beginning of the procedure, to try the conciliation of the parts, being applied itself, in that to fit, art. 28 of this Law.
Art. 22 - The arbitrator or the arbitrational court will be able to take the deposition of the parts, to hear witnesses and to determine the accomplishment of perícias or other tests that to judge necessary, by means of petition of the parts or ex-officio. § 1º - the deposition of the parts and the witnesses will be taken in place, day and hour previously communicated, for writing, and reduced the term, signed for the deponent, or its I supplicate, and for the arbitrators. § 2º - In desatendimento case, without joust cause, of the invocation to give personal deposition, the arbitrator or the arbitrational court it will take in consideration the behavior of the faulty part, when pronouncing its sentence; if the absence will be of witness, in the same circumstances, will be able the arbitrator or the arbitrational chief justice to require to the judiciary authority that the obstinate witness leads, proving the existence of the arbitration convention. § 3º - the default of the part will not hinder that the award is pronounced. § 4º - Excepted made use in § 2º, having necessity of coercitive or action for a provisional remedy measures, the arbitrators will be able to request them it the agency of the Judiciary Power that would be, originariamente, competent to judge the cause. § 5º -, during the arbitrational procedure an arbitrator to come to be substituted is the criterion of the substitute to repeat the tests already produced.
Art. 22 - The arbitrator or the arbitrational court will be able to take the deposition of the parts, to hear witnesses and to determine the accomplishment of perícias or other tests that to judge necessary, by means of petition of the parts or ex-officio. § 1º - the deposition of the parts and the witnesses will be taken in place, day and hour previously communicated, for writing, and reduced the term, signed for the deponent, or its I supplicate, and for the arbitrators. § 2º - In desatendimento case, without joust cause, of the invocation to give personal deposition, the arbitrator or the arbitrational court it will take in consideration the behavior of the faulty part, when pronouncing its sentence; if the absence will be of witness, in the same circumstances, will be able the arbitrator or the arbitrational chief justice to require to the judiciary authority that the obstinate witness leads, proving the existence of the arbitration convention. § 3º - the default of the part will not hinder that the award is pronounced. § 4º - Excepted made use in § 2º, having necessity of coercitive or action for a provisional remedy measures, the arbitrators will be able to request them it the agency of the Judiciary Power that would be, originariamente, competent to judge the cause. § 5º -, during the arbitrational procedure an arbitrator to come to be substituted is the criterion of the substitute to repeat the tests already produced.
CHAPTER V Of the AWARD
Art. 23 - the award will be pronounced in the stated period stipulated for the parts. It swims having been stipulated, the stated period for the presentation of the sentence is of six months, counted of the institution of the arbitration or the substitution of the arbitrator. Only paragraph - the parts and the arbitrators, of common agreement, will be able to prorogue the stipulated stated period.
Art. 24 - The decision of the arbitrator or the arbitrators will be express in written document. § 1º - When the arbitrators will be several, the decision will be taken by majority. If it will not have majority agreement, will take advantage the vote of the arbitrational chief justice.
§ 2º - the arbitrator who to divergir of the majority will be able, wanting, to declare its vote separately.
§ 2º - the arbitrator who to divergir of the majority will be able, wanting, to declare its vote separately.
Art. 25 - Supervening in the course of the arbitration controversy concerning unavailable rights and verifying themselves that on its existence, or not, the judgment will depend, the arbitrator or the arbitrational court it will send the parts to the competent authority of the Judiciary Power, suspending the arbitrational procedure. Only paragraph - Decided the prejudicial matter and joined to files of legal documents the transited sentence or sentence in judgeship, the arbitration will have normal pursuing.
Art. 26 - They are requisite obligator of the award: I - the report, that will contain the names of the parts and a summary of the litigation; Il - the beddings of the decision, where the right and matters of fact will be analyzed, mentioning itself, express, if the arbitrators had judged for fairness; Ill - device, where the arbitrators will decide the questions that Ihes will be submitted and will establish the stated period for the fulfilment of the decision, will be themselves the case; e IV - the date and the place where it was pronounced. Only paragraph - the award will be signed by the arbitrator or all the arbitrators. It will fit to the arbitrational chief justice, in the hypothesis of one or some of the arbitrators not to be able or not to want to sign the sentence, to certify such fact.
Art. 27 - The award will decide on the responsibility of the parts concerning the costs and expenditures with the arbitration, as well as on decurrent mount of money of litigation of bad-faith, will be the case, respected the disposals of the arbitration convention, will be had.
Art. 28 - If, in the continuation of the arbitration, the parts to arrive the agreement how much to the litigation, the arbitrator or the arbitrational court it will be able, the order of the parts, to declare such fact by means of award, that will contain the requirements of art. 96 of this Law.
Art. 29 - Pronounced the award, the arbitration is given for finda, having the arbitrator, or the arbitrational chief justice, to send copy of the decision to the parts, for saw postcard or for another way any of communication, by means of evidence of act of receiving, or, still delivering it directly to the parts, by means of receipt.
Art. 30 - In the stated period of five days, to count of the act of receiving of the notification or the personal science of the award, the interested person, by means of communication to the other part, will be able to request to the arbitrator or the arbitrational court who: I - any material error of the award corrects; Il - some blackness, doubt or contradiction of the award clarify, or if decision pronounces on point omitted regarding which had to be disclosed it. Only paragraph - the arbitrator or the arbitrational court will decide, in the stated period of ten days, amending the award and notifying the parts in the form of art. 29.
Art. 31 - The award produces between the parts and its successors, the same effect of the sentence pronounced for the agencies of Judiciary Power e, being condemnatory, constitute executive heading.
Art. 31 - The award produces between the parts and its successors, the same effect of the sentence pronounced for the agencies of Judiciary Power e, being condemnatory, constitute executive heading.
Art. 32 - The award is null if: I - the commitment will be null; Il - it emanated of who could not be arbitrator; III - not to contain the requirements of art. 26 of this Law; IV - it will be pronounced outside of the limits of the arbitration convention; V - not to all decide the litigation submitted to the arbitration; VI - proven that it was pronounced by prevarication, official corruption or passive corruption; VII - pronounced outside of the stated period, respected the made use one in art. 12, interpolated proposition III, of this Law; e VIII - the principles will be disrespected that it deals with art. 21, § 2°, of this Law.
Art. 33 - The interested person will be able to plead to the agency of the competent judiciary Power the decreement of the nullity of the award, in the cases foreseen in this Law. § 1º - the demand for the decreement of nullity of the award will follow the common, foreseen procedure in the Code of Civil action, and will have after to be proposal in the stated period of up to ninety days the act of receiving of the notification of the award or its amendment. § 2º - the sentence that to judge originating the order: I - the nullity of the award will decree, in the cases of art. 32, interpolated propositions I, II, Vl, VII and VIII; II - it will determine that the arbitrator or the arbitrational court pronounces new finding, in the too much hypotheses. § 3º - the decreement of the nullity of the award also could be defendant by means of action of embargoes of the debtor, as art. 741 and following ones of the Code of Pro I cease Civilian, will have judicial execution.
CHAPTER VI Of the RECOGNITION and EXECUTION OF FOREIGN AWARDS
Art. 34 - the foreign award recognized or will be executed in Brazil of conformity with the international dealt ones with effectiveness in internal order e, in its absence, strict in accordance with the terms of this Law. Paragraph only - It considers - award foreign the one that has been pronounced outside of the domestic territory.
Art. 35 - Recognized or to be executed in Brazil, the foreign award is subjects, solely, to the homologation of the Supreme Federal Court.
Art. 36 - It is applied the homologation for recognition or execution of foreign award, in that to fit, the made use one in arts. 483 and 484 of the Code of Civil action.
Art. 37 - The homologation of foreign award will be required by the interested person, having the complaint brief to contain the indications of the procedure law, as art. 282 of the Code of Civil action, and to be instructed, necessarily, with: I - the original of the award or a copy duly certified, notarized for the Brazilian and folloied consulate of official translation; II - the original of the arbitration convention or copy duly certified, folloied of official translation.
Art. 38 - The homologation for the recognition or execution of foreign award could only be denied, when the male defendant to demonstrate that:
I - the parts in the arbitration convention were incapable;
II - the arbitration convention was not valid according to law to which the parts had submitted it, or, in the lack of indication, virtue of the law of the country where the award was pronounced; III - it was not notified of the assignment of the arbitrator or the procedure of arbitration, or has been violated the principle of the contradictory, disabling legal defense;
II - the arbitration convention was not valid according to law to which the parts had submitted it, or, in the lack of indication, virtue of the law of the country where the award was pronounced; III - it was not notified of the assignment of the arbitrator or the procedure of arbitration, or has been violated the principle of the contradictory, disabling legal defense;
IV - the award was pronounced outside of the limits of the arbitration convention, and it was not possible to separate the exceeding part of that one submitted to the arbitration;
V - the institution of the arbitration is not in accordance with the arbitrational commitment or arbitragem clause;
VI - the award if, still, has not become obligator for the parts, she has been annulled, or, still, she has been suspended for judicial agency of the country where the award will be rendered.
Art. 39 - Also the homologation for the recognition or foreign arbitrational judgement execution will be denied, if the Supreme Federal Court to evidence that: I - according to Brazilian law, the object of the litigation is not susceptible to be decided by arbitration; II - the decision offends the national public order. Only paragraph - offence to the national public order will not be considered the efetivação of the citation of the resident or domiciliated part in Brazil, in the molds of the convention of arbitration or the procedure law of the country where if it carried through the arbitration, admitting itself, also, the postal citation with unequivocal test of act of receiving, since that it assures to the Brazilian part skillful time for the right of action of defense.
Art. 40 - The denial of the homologation for recognition or execution of foreign award for formal vices, does not hinder that the interested person renews the order, a time cured the presented vices.
CHAPTER VII FINAL DISPOSALS
Art. 41 - arts. 267, interpolated proposition VII; 301. interpolated proposition IX; e 584, interpolated proposition III, of the Code of Civil action starts to have the following writing: "Art. 267 -..................................................................................................................... Vll - for the arbitration convention;" "Art. 301 -.............................................................................................................. IX - arbitration convention;" "Art. 584 -............................................................................................................. III - the award and the homologatória sentence of transaction or conciliation;" Art. 42 - Art. 520 of the Code of Civil action starts to have plus an interpolated proposition, with the following writing: "Art. 520 -............................................................................................................ VI - to judge originating the order arbitration institution." Art. 43 - This Law enters in vigor sixty days after the date of its publication. Art. 44 - They are revoked arts. 1.037 the 1,048 of the Law nº 3,071, 1° of January of 1916, Brazilian Civil Code; arts. 101 and 1,072 the 1,102 of the Law nº 5,869, 11 of January of 1973, Code of Civil action; e too much disposals in the opposite. Brasilia, 23 of September of 1996: 175° of Independence and 108° of the Republic. Fernando Enrique Cardoso Nelson the Jobim Published in I GIVE it, of 24/09/96.
World Government??????????
Francisco César Pinheiro Rodrigues
Lawyer, retired principal judge and writer. He’s a member of IASP Institute of Lawyers of São Paulo. _______________________________________________________________________________
Does anyone still doubt the need for a World Government?
The Middle East is currently one of the best arguments for this imperative. There are others, such as the quasi-collapse of the WTO (nothing more logical, natural, without laying specific blame on any particular government), environmental pollution and chaotic population growth, where those who are able to provide adequate conditions for rearing children do not have them, and those who cannot provide such conditions have them in abundance.
There are simple and effective ideas which, in spite of being so, give rise to ill-judged reactions, irrespective of whether such reactions are based on reasoning, emotions or that vast cerebral archive of automated opinions.
The human brain is rather like the enormous control panel of a supersonic aircraft, with hundreds of highly sensitive buttons and devices that, at the lightest touch, even an accidental one, unleash automatic reactions that may even bring down the plane. Obviously, all these buttons are necessary for the safety of the aircraft or the comfort of its passengers. The problem lies in the automatic nature of the response, as each item has no knowledge (of course, this would be impossible) of the function of its neighbor on the control panel. Do what is required, react as programmed, nothing more. If the aircraft crashes, it is not the poor button’s fault, but that of the pilot, or that of the stewardess’s elbow that should not be there. In the event that the plane crashes and the button is still in one piece, it would think, with smoke still arising from it: “Why did the plane crash? I only did what was required of me! I just don’t understand anything any more...”
This is the kind of reaction shown by the vast majority of people – irrespective of whether they are cultured, uncultured or somewhere between the two – when one speaks of a possible world government in the form of a democratic federation. This adjective is in bold and underlined because two of the aforementioned mental buttons, “sovereignty” and “patriotism”, react right away instinctively, possibly for the reason of simply being close to one another, like certain automatic hand driers that “divine” the need for their blast of hot air.
The foregoing considerations come to mind whenever I see photos and headlines in newspapers of the conflict involving Israel in Palestine and Lebanon.
There is no other more obvious example of the need for effective Global Justice in order to resolve a conflict that looks like being permanent and which may result in immense difficulties for the whole world, if there is no legitimate democratic centralized power able to impose the fairest possible solution.
For centuries, in the internal order of all countries (all, without exception), when neighbors begin to fight and cannot reach agreement, there has been found to be a need for an “outside” state power, a legitimized judge, professionally prepared for the role, to pass sentence and ensure that an eventual ruling is fulfilled, even if it displeases one of the parties involved. It would be too much, unthinkable, to require that every judicial decision always satisfy both parties, even the party that is in the wrong. Essentially, justice is almost always “outside” in origin, i.e., external to the parties involved in the dispute. In those cases where justice lies “within” the parties themselves, there is no conflict or a need for any kind of “judge”. In disputes, the parties involved obviously intervene in the process, but solely by putting forward arguments and evidential proof of their allegations. Even “private justice” (i.e., arbitration) is “external” in origin, involving an arbitrator with no material or ideological interest in the conflict. Besides this, the arbitrator is chosen by both parties involved. Nevertheless, once a ruling has been made, there must be compliance with the arbitrator’s decision, irrespective of whether or not the losing party agrees with it. Elementary, isn’t it?
However, it is not this that occurs in the international area, where the elementary is rarely given recognition. Each country does exactly what it wants in the “house where anything goes”, which could be better defined as the “madhouse where anything goes”. Whoever has the most power sheds the least tears. In addition, just to aggravate the problem, the governments of countries or peoples involved in conflict, even if they feel, at heart, that their reactions are exaggerated, believe that they are under an obligation, based on rancorous “patriotism”, to crush the adversary. Like “big boys”, it is necessary, to put on a show of valor for electors, who are generally rather perplexed and only concerned with saving their own skins, and do not have the slightest concern for the suffering of others, or the just or unjust manner in which their government treats the enemy.
Israel and its Arab neighbors are going to continue to kill one another, as long as no “outside power” interferes, in order to impose (as fair as a decision pronounced by human beings can be) and following an in-depth analysis of the arguments put forward, an immutable and really respected frontier. Taking the law into one’s own hands is considered a crime according to the internal legislation of all civilized countries. In the international area, however, it is a “virtue”, as it involves patriotism, sovereignty, “pride of our race”, “break but not bend” and other such notable grandiloquent phrases. However, there is an associated problem: the opposing party repeats the same kind of phrases in a similar fashion, but with diametrically opposite content.
For centuries, the Jewish people have suffered as a result of residing in the home of others. The Jews were subject to a particularly notable massacre when Hitler, with his ferocious eloquence, politically exploited the abuse imposed by the Treaty of Versailles. Commiserate with the Holocaust, the world applauded the creation of the State of Israel. However, the area in question was already occupied by the Palestinians, who are also human beings and do not consider themselves to be (and are not) the instigators of the Jewish expulsion. Some, not all, have reacted and, reacting in this way, are labeled as “terrorists”.
Given that the State of Israel has been created (an irreversible fact), an “outside power” (the UN in this case) should establish the frontiers of the Jewish homeland and set up compensation for Palestinians displaced from land they have occupied for centuries. As such compensation did not occur, only pure and simple expulsion, it is only natural that this is unacceptable to those Arabs who are more disposed to fight. They became “terrorists”, in the same way that the Jewish followers of Menachem Begin, members of the “Irgun Zwai Leumi” movement, who fought against the British occupation of Palestine, were also labeled “terrorists”. This struggle was also not merely verbal in nature.
During World War II, hundreds of French people, in whose eyes the German occupation of their country was unacceptable, also reacted on their own account, without waiting for orders to be issued by the French government. This was the patriotic “Resistance”, however, as far as the Germans were concerned, those involved were little more than “terrorists”, as they acted on their own account, without formal delegation by the French government. Indulging in a mere game of reasoning, if the United States were to be invaded by the Soviet Union, there would certainly be a resistance movement that would manifest itself in the form of attacks against the invader. In this case, the Americans would be called “terrorists” by the Soviets.
The foregoing considerations only serve to show that, without the existence of an impartial international judge (with the power to impose decisions), the use of force as a means of resolving conflicts is a relic from the time when humans lived in caves. In the international area, we still have a lot of ground to cover. The principal judicial organ of the UN, the International Court of Justice, functions more as an “opiner”. It makes “rulings”, but only those who wish to comply with such rulings actually do so. This is demoralizing. And in a household where there is no order, no head, anything can happen. I am certain that if the USA had treated the expelled Palestinians with the same concern that it treated the Jews, the Twin Towers would still be standing. The world would be quite different.
The world is taking too long to recognize the obvious. The “global village” has already become a city, a state, and, if no action is taken, it will end up being transformed into a lawless badland.
Lawyer, retired principal judge and writer. He’s a member of IASP Institute of Lawyers of São Paulo. _______________________________________________________________________________
Does anyone still doubt the need for a World Government?
The Middle East is currently one of the best arguments for this imperative. There are others, such as the quasi-collapse of the WTO (nothing more logical, natural, without laying specific blame on any particular government), environmental pollution and chaotic population growth, where those who are able to provide adequate conditions for rearing children do not have them, and those who cannot provide such conditions have them in abundance.
There are simple and effective ideas which, in spite of being so, give rise to ill-judged reactions, irrespective of whether such reactions are based on reasoning, emotions or that vast cerebral archive of automated opinions.
The human brain is rather like the enormous control panel of a supersonic aircraft, with hundreds of highly sensitive buttons and devices that, at the lightest touch, even an accidental one, unleash automatic reactions that may even bring down the plane. Obviously, all these buttons are necessary for the safety of the aircraft or the comfort of its passengers. The problem lies in the automatic nature of the response, as each item has no knowledge (of course, this would be impossible) of the function of its neighbor on the control panel. Do what is required, react as programmed, nothing more. If the aircraft crashes, it is not the poor button’s fault, but that of the pilot, or that of the stewardess’s elbow that should not be there. In the event that the plane crashes and the button is still in one piece, it would think, with smoke still arising from it: “Why did the plane crash? I only did what was required of me! I just don’t understand anything any more...”
This is the kind of reaction shown by the vast majority of people – irrespective of whether they are cultured, uncultured or somewhere between the two – when one speaks of a possible world government in the form of a democratic federation. This adjective is in bold and underlined because two of the aforementioned mental buttons, “sovereignty” and “patriotism”, react right away instinctively, possibly for the reason of simply being close to one another, like certain automatic hand driers that “divine” the need for their blast of hot air.
The foregoing considerations come to mind whenever I see photos and headlines in newspapers of the conflict involving Israel in Palestine and Lebanon.
There is no other more obvious example of the need for effective Global Justice in order to resolve a conflict that looks like being permanent and which may result in immense difficulties for the whole world, if there is no legitimate democratic centralized power able to impose the fairest possible solution.
For centuries, in the internal order of all countries (all, without exception), when neighbors begin to fight and cannot reach agreement, there has been found to be a need for an “outside” state power, a legitimized judge, professionally prepared for the role, to pass sentence and ensure that an eventual ruling is fulfilled, even if it displeases one of the parties involved. It would be too much, unthinkable, to require that every judicial decision always satisfy both parties, even the party that is in the wrong. Essentially, justice is almost always “outside” in origin, i.e., external to the parties involved in the dispute. In those cases where justice lies “within” the parties themselves, there is no conflict or a need for any kind of “judge”. In disputes, the parties involved obviously intervene in the process, but solely by putting forward arguments and evidential proof of their allegations. Even “private justice” (i.e., arbitration) is “external” in origin, involving an arbitrator with no material or ideological interest in the conflict. Besides this, the arbitrator is chosen by both parties involved. Nevertheless, once a ruling has been made, there must be compliance with the arbitrator’s decision, irrespective of whether or not the losing party agrees with it. Elementary, isn’t it?
However, it is not this that occurs in the international area, where the elementary is rarely given recognition. Each country does exactly what it wants in the “house where anything goes”, which could be better defined as the “madhouse where anything goes”. Whoever has the most power sheds the least tears. In addition, just to aggravate the problem, the governments of countries or peoples involved in conflict, even if they feel, at heart, that their reactions are exaggerated, believe that they are under an obligation, based on rancorous “patriotism”, to crush the adversary. Like “big boys”, it is necessary, to put on a show of valor for electors, who are generally rather perplexed and only concerned with saving their own skins, and do not have the slightest concern for the suffering of others, or the just or unjust manner in which their government treats the enemy.
Israel and its Arab neighbors are going to continue to kill one another, as long as no “outside power” interferes, in order to impose (as fair as a decision pronounced by human beings can be) and following an in-depth analysis of the arguments put forward, an immutable and really respected frontier. Taking the law into one’s own hands is considered a crime according to the internal legislation of all civilized countries. In the international area, however, it is a “virtue”, as it involves patriotism, sovereignty, “pride of our race”, “break but not bend” and other such notable grandiloquent phrases. However, there is an associated problem: the opposing party repeats the same kind of phrases in a similar fashion, but with diametrically opposite content.
For centuries, the Jewish people have suffered as a result of residing in the home of others. The Jews were subject to a particularly notable massacre when Hitler, with his ferocious eloquence, politically exploited the abuse imposed by the Treaty of Versailles. Commiserate with the Holocaust, the world applauded the creation of the State of Israel. However, the area in question was already occupied by the Palestinians, who are also human beings and do not consider themselves to be (and are not) the instigators of the Jewish expulsion. Some, not all, have reacted and, reacting in this way, are labeled as “terrorists”.
Given that the State of Israel has been created (an irreversible fact), an “outside power” (the UN in this case) should establish the frontiers of the Jewish homeland and set up compensation for Palestinians displaced from land they have occupied for centuries. As such compensation did not occur, only pure and simple expulsion, it is only natural that this is unacceptable to those Arabs who are more disposed to fight. They became “terrorists”, in the same way that the Jewish followers of Menachem Begin, members of the “Irgun Zwai Leumi” movement, who fought against the British occupation of Palestine, were also labeled “terrorists”. This struggle was also not merely verbal in nature.
During World War II, hundreds of French people, in whose eyes the German occupation of their country was unacceptable, also reacted on their own account, without waiting for orders to be issued by the French government. This was the patriotic “Resistance”, however, as far as the Germans were concerned, those involved were little more than “terrorists”, as they acted on their own account, without formal delegation by the French government. Indulging in a mere game of reasoning, if the United States were to be invaded by the Soviet Union, there would certainly be a resistance movement that would manifest itself in the form of attacks against the invader. In this case, the Americans would be called “terrorists” by the Soviets.
The foregoing considerations only serve to show that, without the existence of an impartial international judge (with the power to impose decisions), the use of force as a means of resolving conflicts is a relic from the time when humans lived in caves. In the international area, we still have a lot of ground to cover. The principal judicial organ of the UN, the International Court of Justice, functions more as an “opiner”. It makes “rulings”, but only those who wish to comply with such rulings actually do so. This is demoralizing. And in a household where there is no order, no head, anything can happen. I am certain that if the USA had treated the expelled Palestinians with the same concern that it treated the Jews, the Twin Towers would still be standing. The world would be quite different.
The world is taking too long to recognize the obvious. The “global village” has already become a city, a state, and, if no action is taken, it will end up being transformed into a lawless badland.
Interstate Commercial Arbitration
TYPES OF COMMERCIAL ARBITRATION
There are three major institutional settings in which commercial arbitration appears as a mechanism for the settlement of dispute.
First type
It happens when two persons in a contract delineating a business relationship agree to settle any disputes that may arise under the contract by resort to arbitration before named arbitrators or persons to be named at the time of the dispute. In this, which can be called individuated arbitration, the making of all arrangements, including the procedures for arbitration, rests entirely with the parties concerned. The chief moving factors here are:
1.) a simple wish as in certain crude oil situations where such arrangements exist;
2.) the availability of expert deciders;
3.) the avoidance of possible legal difficulties with the nature of the transaction itself; and
4.) the random acceptance by many businessmen of the idea that arbitration is faster and less expensive than court action.
The primary function of arbitration is to provide the merchants where mercantile disputes will be settled by merchants. This suggests that merchants wish to form, and have for a long time succeeded in forming, a separate, and, to some extent, self-governing community, independent of the larger unit. For law this means that courts may perform, in the commercial field at least, a different function from that which we usually assign to them. In many cases, they may not be the primary for an adjudication. If this is true, when they are called upon to decide a commercial case in one of these areas, it will be either after adjudicatory agency has acted or because the other system cannot, or will not, cope with this case. We cannot understand the significance of the “law” contained in the reports and statutes until we have studied arbitration decisions.
Second Type
A second type of arbitration arises within the context of a particular trade association or exchange. The group establishes its own arbitration machinery for the settlement of disputes among its members, either on a voluntary or compulsory basis, and sometimes makes it available to non-members doing business in the particular trade. A particular association may also have specialist committees, which are investigatory in character, with the arbitration machinery handling only the private disputes involving non-specialist categories of cases.[1]
Third Setting
A third setting for commercial arbitration is found in administrative groups, such as the American Arbitration Association, the International Chamber of Commerce, and various local chambers of commerce, which provides rules, facilities, and arbitrators for any persons desiring to settle disputes by arbitration. Many trade associations with insufficient business to warrant separate organizations make special arrangements with one of these groups to process disputes that arise among their members.
Furthermore, there are many reasons why parties may choose arbitration as a more efficient means of dispute settlement than adjudication. It seems likely that a dispute processed through arbitration will be disposed of more quickly than if the parties had made their way through the court system to a final judgment. One of the arbitral awards handed down in 1994 in commercial cases administered by the American Arbitration Association, an average of 204 days had elapsed between the date the case was filled and the date of the award; the median processing time was 133 days. Arbitration tends to be a speedier process in part because it allows the parties to bypass long queues at the courthouse door and to schedule hearings at heir own convenience. In addition, arbitration procedure is “informal”; pre-trial procedures, pleading, motion practice, and discovery are substantially streamlined or in many cases completely eliminated. And the arbitrator’s decision is likely to be final.
[1] Murray, John S.; Rau, Alan Scott; Sherman, Edward F.; Arbitration (University Casebook Series – Foundation Press), page 25.
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