CAM-CCBC: overview and latest developments

In summary

CAM-CCBC continues to improve its case management regime, and the main developments are detailed below, along with a breakdown of the centre’s caseload. After 10 years managing over 1,000 arbitration cases under the 2012 Arbitration Rules, CAM-CCBC welcomed the new and modernised 2022 Arbitration Rules. Along with the institutions’ efforts to provide greater legal certainty, a new set of corporate dispute arbitration rules was drafted aiming to keep CAM-CCBC up to date with the best practices in the case management of complex arbitrations. The organisational structure was also adapted to provide higher levels of governance and fine-tune internal procedures. The centre remains dedicated to promoting arbitration and other forms of ADR, and its outreach initiatives are summarised in this article.

Discussion points

• What makes Brazil an attractive regional arbitration hub
• CAM-CCBC’s focus on fine-tuning procedures and infrastructure
• New provisions introduced by the 2022 Arbitration Rules
• Launch of the Corporate Arbitration Rules
• New organisational structure

Referenced in this article

• Brazilian Arbitration Act
• 2022 CAM-CCBC Arbitration Rules
• Complementary Rule 02/2023 (Corporate Arbitration Rules)

The Centre for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (CAM-CCBC) is the Latin American trendsetter in international dispute resolution. It is responsible for the administration of a significant portion of the arbitration proceedings that take place in the region. CAM-CCBC has over 40 years of experience in administering arbitration proceedings (under its own rules or general rules, such as the United Nations Committee on International Trade Law (UNCITRAL)), and it also offers expedited proceedings for arbitration, mediation and dispute boards, in addition to acting as the appointing authority in ad hoc proceedings on request.

The institution’s remarkable reputation has been achieved through years of dedication and consistent excellence in ADR case management. As at May 2023, the centre had administered over 1,580 ADR proceedings with claims totalling approximately 140 billion reais.

This is mainly the result of a modern and robust arbitration framework in Brazil, which was set up since the enaction of the Brazilian Arbitration Act, in 1996, and benefits from the support of state courts. At the core of its growth, is the centre’s adoption of best practices for case administration, and its active role in the promotion and development of arbitration in both domestic and international cases.

Brazil’s ADR community faced unprecedented challenges in 2020 and 2021, and CAM-CCBC adapted its services during the covid-19 pandemic, while maintaining high quality and prioritising health and safety for all. The obstacles presented by the pandemic, however, did not prevent the institution from growing and developing its services. In 2022 and 2023, the institution resumed the in-person format for its events and hearings, while maintaining online and hybrid services, and kept improving its internal structure, regulatory framework and case management techniques. This brief overview summarises the latest developments at CAM-CCBC, including its key activities, statistics and new regulations.

Brazil’s arbitration framework and the CAM-CCBC 2012 Arbitration Rules

Brazil’s legal framework for arbitration has proven to be robust and reliable, setting the foundations that in only a couple of decades turned the country from a non-player in the area into one of the world’s largest users of arbitration, recognised by practitioners as an arbitration-friendly jurisdiction.

The Brazilian Arbitration Act (BAA)^[1] was enacted in 1996 and is based on the UNCITRAL Model Law. In 2001, the Brazilian Supreme Federal Court (STF) confirmed the constitutionality of the BAA through a decision rendered in a leading case.^[2] Further, with the adoption of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, ratified through a presidential decree on 23 July 2002,^[3] Brazil established a modern legal framework for arbitration, in line with international standards.

The BAA was revised in 2015^[4] and included some important innovations and clarifications concerning emergency proceedings and disputes involving state entities. In addition, Brazilian courts have consistently shown a deep understanding of and regard for party autonomy, kompetenz-kompetenz and internationally prevalent best practices in arbitration.

With this strong legal framework, a more pronounced growth curve can be seen in the number of proceedings entrusted to administration by the CAM-CCBC. Given the growing complexity of arbitration cases perceived through the years, the 2012 CAM-CCBC Rules for Arbitration were approved in September 2011, enabling the centre to apply more sophisticated rules and techniques in its role managing proceedings, to better face the challenges presented by the most recent disputes.

During the time in which the 2012 Rules were in effect, there were no fewer than 1,127 arbitrations initiated. Moreover, its reach went beyond those who acted in these hundreds of cases. The 2012 Rules served as an inspiration for other arbitration rules; they were also the subject of academic debates and were studied by thousands of students and professionals, not only in Brazil – at the North-Northeast Arbitration Competition (2020), at the competitions organised by the São Bernardo do Campo School of Law (2017, 2018 and 2019) and at the Business Arbitration Competition at PUC-Rio Grande do Sul (2019) – but also abroad, at international competitions: at the Washington College of Law (2019), at the Consensual Dispute Resolution Competition Vienna (2017) and at the Willem C Vis International Commercial Arbitration Moot (2017) and the East Moot (2017).

However, after 10 years of using the 2012 Rules, it was time to adapt, improve and modernise the CAM-CCBC Arbitration Rules. In the following section, we will dive into the drafting process of the newly minted 2022 Rules, as well as highlight their major innovations and developments.

The 2022 Arbitration Rules

After seven years as the cornerstone of CAM-CCBC-administered arbitration, the process for the revision of the 2012 Rules began. The drafting process went on for nearly three years, and the reform committee was composed of arbitration specialists, led by Dr Adriana Braghetta, president of CAM-CCBC’s Advisory Board. The reform process was guided by the perception that the rules should reflect not only the institution’s experience throughout the past decade, but also the experience of arbitrators, lawyers, parties and other stakeholders. During the public consultation period, CAM-CCBC received around 300 comments and suggestions from people and groups (offices and associations that joined forces and submitted a unified proposal).

In line with CAM-CCBC’s purpose of ensuring legal certainty in arbitral proceedings, the proposed changes to the rules were thoroughly reviewed and many aspects of the general structure of the 2012 Rules were kept, as they were still considered sound and had worked well.^[5]

A major innovation of the 2022 Rules, that can be seen in its first few articles, is the shift to an electronic procedure, as a default rule. In view of the evolution of digital media and the accumulated experience with the social distancing measures imposed in 2020 and 2021 during the covid-19 pandemic, the rules explicitly adopted the use electronic proceedings. In addition to the greater acceptance of the electronic proceedings by arbitrators, lawyers and parties, who got used to them during the pandemic, the change brings greater speed and lower costs to arbitration.

Moreover, the primary changes brought by the 2022 Rules can be summarised as follows:

• inclusion and consolidation of matters that were previously regulated in scattered administrative resolutions: an expedited arbitration procedure, emergency arbitrators, a procedure governed by the Arbitration Rules of UNCITRAL and third-party funding;^[6]
• inclusion of topics that the CAM-CCBC secretariat observed were frequently discussed during the meetings for the signing of the terms of reference: the secretary of the arbitral tribunal and data protection;^[7]
• rules used for complex arbitrations: changes in the appointment of all members of the arbitral tribunal in multiparty arbitration cases,^[8] new provisions on the consolidation of arbitrations^[9] and inclusion of provisions that deal with the joinder of additional parties and multiple contracts;^[10]
• inclusion of a provision regarding the composition of the arbitral tribunal: if the parties have not defined the number of arbitrators (whether one or three) in the arbitration agreement or fail to reach a consensus, the CAM-CCBC presidency will set this number, taking into account the complexity of the arbitration and amount in dispute;^[11]
• change in the provisions relating to the duty of disclosure of arbitrators.^[12] In the 2012 Arbitration Rules, article 5.2 listed the situations in which a person could act as an arbitrator. Nonetheless, in 2022 this provision was excluded, and article 9.7 introduced^[13] a specific ban on parties designing any supervening fact that creates a conflict and an impediment to one or more arbitrators;^[14]
• conduct of the proceeding: inclusion of an express duty that the parties and the arbitral tribunal make their best efforts to conduct arbitration in an efficient, speedy and safe manner;^[15] inclusion of express powers for the arbitral tribunal to convene in-person or remote hearings or meetings;^[16] and inclusion of a provision that honours other ADR methods, providing that the arbitral tribunal may suggest the resolution of the dispute, in whole or in part, by another ADR method;^[17]
• specification of the process for setting up a special committee to decide on challenges of arbitrators;^[18],^[19]
• inclusion of new provisions regarding the arbitral award: a provision establishing that the arbitral award will be deemed as having been issued at the seat of the arbitration, the possibility of the arbitral award being signed electronically, specification that the award will be sent by the presiding arbitrator to the secretariat who, in turn, will verify that all costs have actually been received to – only then – notify the parties of its content;^[20]
• inclusion of an express provision that the arbitral tribunal may provide the other parties with the opportunity to comment on the requests for clarification presented before the decision;^[21]
• change in the provision of confidentiality of procedures relating to the publication of awards.^[22] The provision contained in the 2012 Rules was more restrictive, as it established that the CAM-CCBC could only publish excerpts of the award, and only for the purposes of research and statistical surveys; and
• inclusion of a specific article dealing with the replacement of arbitrators, including the specification that the time limits for the procedure may be changed for the reconstitution of the arbitral tribunal, taking into account the stage of the arbitration.^[23]

The 2022 Rules also introduced an important amendment regarding arbitrator appointments. According to the previous version of the rules, party-appointed arbitrators were invited to choose the president of the arbitral tribunal from among the members of the List of Arbitrators. Only on an exceptional basis and based on a reasoned justification and approval of the president of the CAM-CCBC, the arbitrators chosen by the parties could appoint a person who was not a member of the List of Arbitrators as president of the arbitral tribunal. According to the newly launched rules, the appointment of the president of the arbitral tribunal should preferably be made only from the members of the List of Arbitrators. The CAM-CCBC’s List of Arbitrators is a valuable tool and remains a reference for the appointments made by the institution. However, the new wording of article 11.5 (4.9 in the former rules) leaves more room for party autonomy while reflecting the maturity levels reached by the Brazilian Arbitration Market.^[24]

The rules are the result of the CAM-CCBC’s years of experience, along with future goals to consistently contribute to social pacification and with the awareness of its pivotal role in the development of arbitration as an efficient means of the resolution of disputes.

Corporate Arbitration Rules

A considerable share of CAM-CCBC’s administered arbitrations relates to corporate disputes. In 2022, for example, among all cases filed, 45 per cent involved shareholders’ agreements and share purchase agreements.

Aware of this and the intrinsic peculiarities of corporate disputes, CAM-CCBC launched on 26 April 2023 its Corporate Arbitration Rules (through the Supplementary Rules No. 02/2023).^[25] The complementary regulation is the result of extensive research by a group of corporate law experts, and the review and contributions of the CAM-CCBC advisory board, the presidency and the board of directors, taking into special consideration the challenges imposed by the legal nature of these disputes and the issuing of awards that are likely to affect the rights of third parties.

The Corporate Arbitration Rules will be applicable when, cumulatively:

• the arbitral award is capable of affecting not only those parties who are the claimant(s) and the respondent(s) named in the request for arbitration, but also the legal sphere of a business corporation, limited liability company or association (legal entity) and, simultaneously, other partners, associates or shareholders who hold securities of the class or type directly subject to the effects of the future arbitral award, and the management who are also subject to it (affected third parties);^[26]
• the nature of the dispute requires a uniform decision for all affected third parties;^[27] and
• the by-laws or the articles of incorporation of the legal entity include a clause whereby the parties agree that the arbitration shall be administered by the CAM-CCBC and governed by the CAM-CCBC Rules, as per article 1 of the CAM-CCBC Arbitration Rules.^[28]

Regarding the subject matter of the disputes, the Corporate Arbitration Rules will be applicable to arbitrations dealing with:

• the invalidity of meetings of partners, shareholders, associates or their respective administrative bodies, as well as the invalidity of any decisions taken at these meetings;^[29]
• total or partial dissolution, withdrawal or exclusion of partners, shareholders or associates, or the determination of assets;^[30]
• liability of the controller, management or members of the fiscal council before the legal entity, its shareholders, partners or associates;^[31] or
• liability of shareholders, partners or associates for the abusive exercise of voting rights.^[32]

The affected third parties will have the opportunity to join the proceedings and, if a new arbitral proceeding is started to discuss the same subject matter as that of a previously on-going arbitration, the jurisdiction of the arbitral tribunal constituted first shall prevail.

The new corporate arbitration rules aim to provide greater efficiency and legal certainty to disputes dealing with a multitude of affected parties, ensuring arbitration as the preferred method for solving corporate disputes.

Statistical breakdown of claims

Since CAM-CCBC was founded and up to May 2023, the 1,460 plus arbitration proceedings initiated amounted to over 123 billion reais in dispute.

At the time of writing, there are over 370 ongoing arbitration proceedings, distributed among the eight case management teams. In the past five years, an average of 109 cases were initiated before CAM-CCBC per year and on average the proceedings closed in just over 20 months.^[33]

Throughout 2022, CAM-CCBC registered nine new cases involving Brazilian state and state-owned enterprises. There were over 30 ongoing arbitral proceedings featuring parties from various levels of the Brazilian public administration.

Among the 115 arbitration proceedings initiated in 2022, the proceedings involving multiple parties as claimants or respondents amounted to 64.35 per cent. The overall number of parties involved in these proceedings was 470, a decrease of 22.2 per cent in comparison with 2021 (which involved a total of 604 claimants and respondents). Those proceedings also featured parties from 11 different countries including Argentina, Brazil, the British Virgin Islands, China, France, Ireland, the Netherlands, Portugal, the United Arab Emirates, the United States and Uruguay.

Corporate contracts still represented the majority of cases in 2022 (45 per cent). Business contracts for loan, leasing, real estate and insurance, (24 per cent) and construction-related and energy contracts (17 per cent) also featured in many cases. Sales of goods and supplies of services, concession contracts and intellectual property contracts are among other identified recurring subjects in the centre’s caseload.

Regarding the diversification of ADR proceedings administered by the Centre, in 2022 the institution appointed one emergency arbitrator. The Centre also received five new requests for mediation and administered 23 mediation proceedings throughout the year.

New organisational structure

In 2023, the CAM-CCBC also welcomed a new organisational structure designed to improve efficiency and governance levels. According to the new Internal Rules, the presidency of the CAM-CCBC will be a body composed by one president and two vice-presidents, as opposed to the former structure that only had a sole president.

For the 2023–2025 term, the CAM-CCBC presidency is comprises Rodrigo Garcia da Fonseca (president) and Silvia Rodrigues Pachikoski and Ricardo Aprigliano (vice-presidents), the authors of this article, who were all present in the 2021–2023 directorate as vice-presidents and widely contributed to the advances achieved in recent years.

In line with the newly elected CAM-CCBC administration, the position of executive director was created and will be held by Patrícia Shiguemi Kobayashi. She served as secretary general in the past two administrations and is now the first person to hold the new position. Luíza Helena Cardoso Kömel steps in as secretary general of the Centre and Ana Flávia Furtado as deputy secretary general.

The new structure was carefully put together with the goal of improving the quality and efficiency of the decision-making process and of the administration of centre in all its aspects.

Specialised case managers and state-of-the-art facilities

The arbitration-friendly environment described above has helped the centre to continually develop and improve the administration of arbitrations and other forms of alternative dispute resolution.

To promote best practices, CAM-CCBC has been constantly improving its internal proceedings and its institutional work. The unique case management model, certified by ISO 9001:2015 – an international certification for quality service providers – guarantees the continued promotion of efficiency and speed in ADR proceedings. In 2019, the Centre went through an independent audit process to expand the ISO certification to all services offered, ensuring a high-quality management standard not only for arbitration, but also for mediation and dispute boards.

CAM-CCBC created a pioneering case management model in Brazil. The Centre continues to push forward its practices and internal procedures, bringing innovation to the Latin American market and providing even better case management and support to its over 350 ongoing cases.

Each of the eight CAM-CCBC case managers are qualified lawyers with extensive practical and academic experience who closely follow every step of the proceeding, from the filing of the request for arbitration to the rendering of the final award. The case managers will also assist the tribunal and serve as a direct channel of communication between parties, counsel and arbitrators, always observing the principles of impartiality and fairness. Since 2018, each secretariat team has been assigned specific areas of expertise, such as intellectual property, construction, oil and gas, etc.

All case managers are trained in CAM-CCBC’s case management style, operated under an ISO quality management system that evolves through constant monitoring and reports of micro-procedural developments. These activities are overseen by the secretariat coordinators (Silvia Salatino and Cristiane Gertel) and the general secretariat. CAM-CCBC aims to provide the perfect balance between transparent and standardised case management while also leaving room for flexibility and party autonomy.

Keeping up with international standards, CAM-CCBC’s main hearing centre is located in Vila Olímpia, in the heart of São Paulo’s business hub. It has state-of-the-art infrastructure, sound technology and IT, providing the best environment for the conduct of proceedings. The centre in São Paulo was remodelled in 2020, following social distancing specifications, and providing an even safer infrastructure for clients and personnel. CAM-CCBC also invested in the technological upgrade of all its hearing rooms, installing in each of the three rooms the best audio and video equipment, such as high-definition dual cameras that provide superior recording of video conferences.

Given the unforeseen circumstances brought about by a global pandemic, remote and hybrid hearings became common in CAM-CCBC administered proceedings. The Centre provided clear guidelines detailing the technical requirements needed for smooth online meetings and valuable insight on the planning and conduct of remote hearings.^[34] Additionally, CAM-CCBC put top-of-the-line cybersecurity measures in place, with several walls of protection ranging from the choice of equipment to the implementation of software and technical training of staff.

The information technology department is set up to assist remote hearings, and case managers have been trained to conduct virtual hearings following the best international arbitration practices. The parties can even choose the preferred platform to conduct meetings and hearings from a range of videoconferencing software.

To sum up, CAM-CCBC offers constant support throughout proceedings, as well as sophisticated hearing facilities and virtual resources at no extra cost. This is one of the main reasons why CAM-CCBC is an market leader in Brazil and recognised globally for its excellence in every aspect of the administration of ADR proceedings. The work developed by the centre is based on six pillars: efficiency, transparency, impartiality, independence, confidentiality and continuous improvements. These principles, along with the secretariat’s work, have set the benchmark for quality secretarial services and established a solid reputation for the centre both in Brazil and abroad.

Institutional and social activities

CAM-CCBC is aware of the importance of its institutional role to promote ADR, concluding cooperation agreements with peer institutions, granting scholarships to law students, counsel and practitioners, promoting internships for students, granting sponsorships, supporting academic initiatives and promoting academic events.

Worldwide, CAM-CCBC has several partnerships with chambers, institutions and universities, and is also active in many other initiatives. In Brazil, CAM-CCBC is recognised as a pioneering institution playing a significant role in assisting the study and practice of arbitration and ADR.

CAM-CCBC regularly organises events with highly recognised universities abroad such as NYU, Columbia University, Bucerius Law School and SciencesPo. The Centre also grants scholarships to Brazilian law students and practitioners in events and universities such as the Washington College of Law (American University), the Sciences Po and organisations such as the Max-Planck Institute for Comparative and International Private Law in Germany.

As a not-for-profit organisation, CAM-CCBC has also provided financial aid on numerous occasions to law students and numerous sponsorships to events such as the International Arbitration Competition of Asunción, the International Negotiation Competition and the Consensual Dispute Resolution Competition (IBA-VIAC Mediation and Negotiation Competition). Additionally, the Centre has been an annual sponsor of the Willem C Vis International Commercial Arbitration Moot. As well as providing sponsorships for the teams participating in the Vis moot, CAM-CCBC also organises two pre-moots: one in São Paulo and the other in Hamburg. In 2022, given the continuity of social distancing policies, the CAM-CCBC maintained the virtual format for both competitions. The São Paulo Pre-Moot had 40 teams from eight nationalities and over 150 arbitrators. The Hamburg Pre-Moot had 38 teams participating from 14 countries.

In 2019, CAM-CCBC launched the NewGen Commission, a group to promote the next generation of dispute resolution practitioners. The Commission promotes worldwide integration, provides academic opportunities and coordinates other initiatives to assist the development of the upcoming names in ADR, with a focus on cultural, regional, ethnic and gender diversity. In the past two years, several projects have been developed, such as NewGen Blog, newsletters, a legal writing course for moot participants, the NewGen council for diversity, as well as scholarships, workshops and webinars.

Furthermore, CAM-CCBC holds its annual international arbitration congress and organises the São Paulo Arbitration Week, a collaborative calendar of events put together by several institutions and law firms dedicated to the best practices in international arbitration.

In 2022, the CAM-CCBC Arbitration Congress brought back the in-person format. The ninth edition of the CAM-CCBC Arbitration Congress brought together more than 600 registered viewers, 29 sponsors and 25 institutional supporters for a two-day event. The event received more than 400 participants and presented an incredible discussion regarding several arbitration hot topics. The carefully selected line-up created the ideal environment for a high-level debate and networking with the most important players in the market. Diversity was also a fundamental factor. Fifty-six per cent of the speakers were women, and panellists from various backgrounds and different nationalities were featured.

Research and data analysis are another important branch of CAM-CCBC’s institutional activities as the Centre is committed to bringing empirical clarity to the ADR community. Throughout 2022 CAM-CCBC contributed to 38 different research in the areas of ADR, including initiatives conducted by the International Council for Commercial Arbitration (ICCA), Brazilian Arbitration Commission (Cbar) and Chartered Institution of Arbitrators (CIArb).

To promote transparency, the since 2019 CAM-CCBC has published its facts and figures in a report comprising the most relevant data regarding the institution’s cases and its main initiatives. The latest edition is already available and contains all relevant information for 2022.^[35]

CAM-CCBC is constantly developing its institutional activities remotely and in-person, including research, events and committees. The aim of the institution is to promote transparency and innovation related to dispute resolution, with a socially responsible leadership. For the coming years, the CAM-CCBC has reiterated its commitment to continuously innovate in its institutional initiatives.

Final remarks

CAM-CCBC is constantly challenging itself to raise its standards in case management and institutional activities, leading the Brazilian and Latin American market and standing out in the international market for an increasingly efficient service and the promotion of ADR in Brazil.

The 2022 Arbitration Rules and the new Corporate Disputes Rules are aligned with the best international practices and reaffirm the Centre’s capability of solving disputes in an efficient manner. All the rules are guided mainly by the principle of party autonomy and seek to inject a considerable degree of flexibility into arbitral proceedings.

However, CAM-CCBC’s work goes far beyond the delivery of cutting-edge services in the administration of ADR proceedings. The Centre is constantly contributing to the development of the market in its daily activities. This, along with the serious commitment to its role in the administrative, institutional and international fields, guaranteed CAM-CCBC the leadership among arbitral institutions not only in Brazil and Latin America, but worldwide.

Aware of its leading position in the Brazilian arbitral community, CAM-CCBC will continue to move forward, maintaining the excellent service provided and developing itself alongside ADR, while fulfilling rising demands. With the best and most reliable structure, norms and internal processes to increase the professionalisation and internationalisation of its services, the institution will continue to support and publicise arbitration and other forms of alternative dispute resolution in Brazil and abroad.

Footnotes