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The genesis of Brazilian Institutional Arbitration
Almost 20 years ago, arbitration in Brazil was embryonic, to say the least: while it was provided for in the Brazilian legal system, there was no specific arbitration law; and even after an arbitration law was enacted, its constitutionality was heavily debated for several years.
It was in this adverse context that the Center for Arbitration and Mediation of the Chamber of Commerce Brazil–Canada (CAM/CCBC) was created. As a pioneer in the field, the Center weathered those early years, contributing greatly to the debate. When arbitration eventually flourished, the CAM/CCBC found itself in the unique position of rendering a high-level, world-class dispute administration service.
In 1979, a group of lawyers and professors of the University of São Paulo founded the CAM/CCBC with the audacious aim of developing the idea of alternative dispute resolution. The Center was clearly ahead of its time: it took 17 years for the Brazilian arbitration law to be passed in 1996 and 22 years until the country’s Supreme Court recognised its constitutionality in 2001.
With arbitration being recognised as a viable dispute resolution method, in 2002 Brazil finally ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), bringing national arbitration in line with international standards.
Since then, arbitration in Brazil has been experiencing exponential growth year by year and the country is now one of the top users of arbitration worldwide. As an early adopter, when the arbitration boom came about, the CAM/CCBC was prepared to meet the sudden demand.
As a natural industry leader, the CAM/CCBC has contributed to society’s acceptance of arbitration in several respects:
- the Secretariat provides unique case management services;
- the CAM/CCBC Arbitration Rules reflects the recent international trends and the most established doctrine in arbitration; and
- the Center fosters knowledge in the field by encouraging educational activities and concluding cooperation agreements with many arbitral institutions around the world.
Along with its institutional role, the Center has set the standard for quality secretariat services, providing highly efficient proceedings, within the framework of its modern arbitration rules, while counting with cutting-edge facilities which are unparalleled in the whole of Latin America.
In no small measure due to the CAM/CCBC’s contribution, Brazilian arbitration has developed considerably and Brazil is today a viable seat for international arbitrations. This proves that the role of the arbitration chamber can exceed traditional case management.
A unique formula of case management
The CAM/CCBC’s case management is founded upon four major pillars:
- fair and equitable treatment for the parties;
- impartiality and independence; and
Bearing those ideals in mind, the administration services of the Center, aligned with the provisions of the Arbitration Rules, are designed to provide efficiency and celerity to the proceedings.
Once a request for arbitration is filed in the CAM/CCBC, it receives a registration number and the case is randomly assigned to a case manager. From the beginning to the end of the procedure, that one case manager will accompany every step of the proceedings. The case manager will be the direct channel between the parties, lawyers, arbitrators and the Center.
Having the same case manager during the whole arbitration enables a more dynamic and personal treatment for parties and arbitrators.
While each arbitration is individually managed, the Secretariat as a whole works in unison, following pre-established procedures that have been certified according to ISO 9001:2008. The ISO certification attests to the consistency of the Center’s services at each step of every arbitration.
To cope with the significant increase in demand, the CAM/CCBC’s staff has doubled since 2013.
The Secretariat is composed by a team of highly qualified case managers, all of whom are certified lawyers with extensive practical and academic experience in alternative dispute resolution.
The CAM/CCBC case managers and their respective assistants work full time, providing administrative support to parties, arbitrators, mediators and lawyers. Our staff is proficient in several languages such as English, French, Spanish and German, managing an ever-more internationalised docket of disputes, seated in Brazil and abroad.
Overseeing the quality of the CAM/CCBC’s case management are the deputy secretary general and the assistant deputy secretary general, specialised attorneys with years of experience in the field and a track record of hundreds of successfully administered arbitrations.
Therefore, the CAM/CCBC provides a unique formula of case management guaranteeing a tailor-made administration to meet the peculiarities of the cases, in a consistent and highly efficient manner.
The CAM/CCBC hearing centre
Launched in 2013, the CAM/CCBC’s new hearing centre is state of the art, fully equipped and suitable for lawyers’ and arbitrators’ every need in hearings both large and small.
The hearing centre consists of four meeting rooms and several small supporting rooms, where lawyers may talk freely, and where witnesses may be comfortably allocated prior to depositions.
In addition, the centre also has an auditorium that seats up to 40 people, a perfect venue for lectures, small conferences and workshops sponsored by the CAM/CCBC.
The logistics and high technology available in the meeting rooms also contribute to the success of the hearings and meetings. The available infrastructure enables lawyers and arbitrators to focus solely on the cases.
The case manager designated to follow the proceedings will coordinate all the administrative logistics, including catering services, audio recording, simultaneous translations and other services, before, during and after hearings.
The CAM/CCBC’s case manager contracts the best and most cost-effective suppliers necessary to meet the specific requirements of each hearing or meeting.
Parties are not charged any additional costs for the use of the CAM/CCBC’s facilities. Upon request by the arbitrators, the Secretariat will schedule meetings and manage all the required logistics.
The CAM/CCBC Arbitration Rules
The CAM/CCBC Arbitration Rules are a key element to the Center’s success. The Rules express the most recent trends and the best and most established doctrine in international arbitration.
In 2011, the Center’s arbitration rules were revised to reflect many aspects of the Chamber’s established and recent practices.
In force since 2012, the new Arbitration Rules are guided mainly by the principle of party autonomy, and seek to inject a considerable degree of flexibility in the arbitral proceedings. Under the new rules, the parties are free to modify the standard procedure to a considerable extent, as long as the administrative work of the Center is not affected.
Aligned with most internationally recognised arbitration rules, the CAM/CCBC Rules allow the parties to agree on several aspects of the proceedings, as well as, to establish the pace and frame of the arbitral procedure.
A principal focus of the Rules is the constitution of the arbitral tribunal, which is a key element for a successful arbitration.
In this regard, the CAM/CCBC provides a list of arbitrators comprised of more than 100 industry-leading professionals, specialised in a wide range of subjects and with several different nationalities, including Brazilians, Americans, French, Russians, Germans, Portuguese, Spanish, Colombians, Argentinians and Chileans. While the parties may choose arbitrators not in the list, the president of the Arbitral Tribunal should preferably be a list member.
The Rules also provide a specific mechanism allowing the parties to challenge the appointment of arbitrators on some grounds. Once a challenge is posed, the arbitrator will be afforded the opportunity to provide additional information or clarifications as may be necessary to satisfy the parties’ contentions. If a party chooses to maintain its challenge, the matter will be submitted to a special committee composed of three members of the list of arbitrators to be appointed by the president of the CAM/CCBC.
The CAM/CCBC Arbitration Rules – recent improvements
Over the years, the matter of advances on costs has hindered the proper development of many arbitral proceedings. To tackle this issue, in 2015 a new table of expenses was applied.
Experience has shown that the old method used for advance son costs has proven to be unpredictable for both parties and arbitrators. The arbitrators’ fees were charged per hour and the administrative fees were collected on a monthly basis. This old formula has had a negative impact on the fluidity of arbitral proceedings for a long time.
Pursuant to the Center’s experience, the president of the CAM/CCBC, accounting for the advisory committee consultancy, has passed a new method of charging arbitration costs based exclusively on the estimated amount in dispute.
Under the new table of expenses, most advances on costs are charged at the beginning of the proceedings in a single instalment. The relevant values will follow the CAM/CCBC’s standard fee-schedule in view of the total amount in dispute. Moreover, the costs related to counterclaims may be calculated in parallel to those of the original claims upon request by the interested party.
The provisions set forth in the new table of expenses, which are binding on the parties and the arbitrators, aim at providing more predictability for users of arbitration and at avoiding unfair practices, like ‘cost dumping’ by wealthier parties.
The CAM/CCBC Administrative Resolution No. 3 – Arbitrations involving state entities
In 2014, the president of the CAM/CCBC passed Resolution No. 3, dealing specifically with disputes involving state-owned enterprises and public administration entities. The Resolution implemented the necessary adjustments to the Arbitration Rules in order to meet the particularities of such cases.
Among other peculiarities, under Resolution No. 3, arbitrations involving public entities will follow the constitutional principle of publicity of the proceedings, except as may otherwise be required by law.
Resolution No. 3 followed a trend that was eventually made into law by the latest revision of the Brazilian Arbitration Law, in 2015, which expressly allowed state entities to be part to arbitration proceedings.
The enactment of Resolution No. 3 was the result of a commission specially instituted to discuss arbitration involving public administration entities. Thus, the CAM/CCBC was already prepared to face the new demand which has already begun to increase.
Encouragement of educational activities
Understanding its role in the development of ADRs in Brazil and elsewhere, the CAM/CCBC organises educational activities and sponsors the academic activities from graduation to the highest level of scientific knowledge.
The Center promotes education in alternative dispute resolution by sponsoring several renowned events, such as the International Council for Commercial Arbitration Congress (ICCA Congress) and the Willem C Vis Moot. It also organises joint Congresses with many entities, such as the Brazilian Committee for Arbitration, the Institute for Transnational Arbitration and the National Council for Mediation and Arbitration Institutions.
The CAM/CCBC encourages study groups, courses and mock competitions. The engagement of young law students is very important to the Center, which considers that the students of today will be the arbitrators of tomorrow.
In 2014, the presence of the CAM/CCBC in the Willem C Vis Moot was truly remarkable: the CAM/CCBC Arbitration Rules were applied in that renowned competition, attesting to the credibility of the Rules and the Center’s truly international status.
The Center also encourages specialisation programmes for experienced lawyers and students, such as the scholarship for Brazilian lawyers to attend the American University Washington College of Law Specialized Summer Program on International Commercial Arbitration and the scholarship for PhD students at the Max Plack Institute of Comparative Law and Private International Law in Hamburg, Germany.
In addition, the Center sponsors or provides institutional support to several local and international arbitration events.
One of the most renowned events organised by CAM/CCBC was in association with the Peruvian Arbitration Institute: the 2014 first Pan-American Arbitration Congress in São Paulo. The congress highlighted the importance of the continent in arbitration around the globe.
High-level debates lasted three days concerning the present, the past and the future of arbitration. The discussions were led by some of the most recognised international arbitration specialists.
The scope and quality of the first Pan-American Arbitration Congress expressed and reaffirmed the development of arbitration in the region and its importance for the international community.
The CAM/CCBC internationalisation process – the importance of cooperation agreements
As part of its focus on internationalisation, the CAM/CCBC entered into cooperation agreements with several international arbitration institutions, such as the Permanent Court of Arbitration in the Hague, the German Institute of Arbitration (DIS), the Chamber of Arbitration in Milan in Italy, the CAM-Santiago in Chile, the Chamber of Commerce and Industry in Brussels in Belgium, and the International Centre for Dispute Resolution in the United States, among others.
The scope of those agreements may vary from institution to institution, but essentially they serve as mechanisms to promote the development of arbitration jointly in the correlated countries.
Through those agreements, the institutions may exchange information, as well as, perform joint courses and events such
as the CAM/CCBC and DIS joint events in São Paulo and Berlin, as a result of the partnership developed by both institutions.
Furthermore, the cooperation agreements may also cover exchange of personnel, which means that both arbitral institutions can benefit from each one’s best practices and learn from different experiences. In addition to knowledge, the partner’s institutions may share their available structure and headquarters when needed.
Currently, the CAM/CCBC is undergoing a transition. In May 2015, a new board of directors was elected and with it a new president, vice presidents and the secretary general, all of whom are recognised practitioners of arbitration in Brazil and abroad.
Besides the current board of directors, the president of the CAM/CCBC is advised by an advisory committee composed of its five former presidents and at least five elected members of the list of arbitrators.
Besides having an enormous legacy to live up to, the new presidency will face considerable challenges in the next few years.
Considering the fact that the CAM/CCBC grew faster than expected, some of the major concerns are the investment on administrative personnel and the Center’s headquarters. The project is already ongoing and encompasses hiring extra support personnel for the pure administrative activities and reforming the administrative areas to provide more filing space and comfort for the Secretariat.
Nonetheless, the biggest project envisaged for the second half of 2015 is the launch of a brand new platform which will boost the Secretariat’s administration services into a higher level of efficiency.
This new platform will collect data on arbitral proceedings, including the financial aspects. This state-of-the-art system will make case information available online while preserving the confidentiality of arbitral proceedings.
At first, the new system will function solely for the members of the CAM/CCBC. However, the idea is to expand the online platform to arbitrators and then to lawyers, in such a way that they will be able to follow a particular procedure remotely in a single click from wherever they are.
Along with the new platform, the Center will also provide online extracts of arbitral awards rendered by Arbitral Tribunals according to the CAM/CCBC Arbitration Rules. This project is already ongoing and will probably be available to the general public in the near future.
Another relevant project for the future is the development of the already existing commissions in specific areas of law and dispute resolution, such as intellectual property, corporate advocacy, dispute boards, mediation and public administration, created with the purpose of fostering knowledge.
Each commission has a coordinator and a representative CAM/CCBC member, who is responsible for organising meetings and contributing to debates with the Center’s own experience in a particular field.
More cooperation agreements should be signed soon as the Center is negotiating terms with several other institutions interested in becoming partners.
Furthermore, in relation to the cooperation agreements, the CAM/CCBC is studying the possibility of concluding international exchanging programmes between case managers from other arbitration institutions, an idea that was born in the last presidential mandate and is now being implemented.
The Center will launch a temporary trainee programme in its Secretariat for students pursuing an LLM or a specialisation programme in dispute resolution as another way to promote the CAM/CCBC’s services and to spread its differentials.
Finally, the Center will continue to sponsor educational activities and events related to arbitration in Brazil and worldwide. Nonetheless, the CAM/CCBC’s most audacious project for 2015 is to promote a second and much bigger Pan-American Congress, this time focusing the debates on the future of arbitration in the Pan-American region and the sensitive topics.
The role of local arbitral institutions is intimately connected with the development of arbitration in the region.
The CAM/CCBC’s own development reflects the exponential growth of regional institutions and their potential to gain more space in the international market.
The Center has proven that its activities go beyond the administration of arbitral proceedings. It is constantly contributing to the development of arbitration in its day-to-day activities.
By sponsoring educational activities and exchanging experience through cooperation agreements, the CAM/CCBC helps to foster the knowledge on ADRs locally and internationally.
The Center’s institutional role guides it towards accomplishing its final objective which is to provide highly efficient ADR administration, especially in arbitration. As an international player, the Center promotes Brazil as a viable seat for international arbitral proceedings.
Being a leader in the Brazilian market and a local reference for international arbitration, the CAM/CCBC attributes its success to an outcome of good practices and services.
The CAM/CCBC experienced several changes over the past couple of years. The Center has overcome its own expectations of growth in this period of time. In 2014 alone the CAM/CCBC registered 95 new cases, and 72 new cases up to July 2015.
Since its foundation, the Center registered 600 arbitral proceedings, at a total value of over US$8 billion. Recent improvements and the ones projected for the near future demonstrate the Center’s ability to host an even larger number of high-value arbitrations.
After its 35th anniversary, in 2014, the oldest arbitration centre in the country has proven to be not only a Brazilian pioneer but also a consolidated leader in dispute resolution in Latin America. Undeniably, the CAM/CCBC plays a significant role in the international arbitration scenario.