A principled approach to arbitration and ADRs
An industry leader in Brazil and Latin America, the Centre for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (CAM-CCBC) seeks to ensure excellence in every aspect of the administration of arbitral proceedings and ADRs.
The Centre’s main goals are promoting arbitration both in Brazil and abroad and ensuring client satisfaction. To that end, the Centre’s activities are based on five pillars, which guide its immediate and long-term development strategies:
- continuous improvement;
- operational efficiency;
- impartiality; and
Founded upon these principles, the CAM-CCBC set the benchmark for quality secretarial services and established a solid reputation both in Brazil and internationally.
The Centre’s leadership, nevertheless, does not come without its hurdles: the CAM-CCBC is constantly challenged to maintain and develop upon its own standards, providing ever more efficient case management and promoting arbitration as a viable dispute resolution mechanism.
This article will discuss how the CAM-CCBC has been investing in and directing its practices towards fulfilling the Centre’s mandate with respect to each one of its guiding principles, as follows:
- to ensure continuous improvement, the CAM-CCBC has deepened its internationalisation process and developed its case management formula;
- to inject operational efficiency, the Secretariat headquarters and the hearing centre were entirely renovated;
- to inject an ever greater level of transparency into the Centre’s administration procedures, Administrative Resolutions were passed by the President to regulate sensitive issues; and
- to maintain the standards of impartiality and independence, the CAM-CCBC developed tools to monitor its practices.
On the other hand, the Centre has also been committed to new developments, such as:
- the viability of a new instrument carried out in the 2015 update of the Brazilian Arbitration Act;
- the 2017 Willem C Vis Moot;
- the promotion of gender diversity in international arbitration; and
- the update of the CAM-CCBC Arbitration Rules to encompass an unlimited number of arbitrators in its list.
Supported by its own philosophy and approach to growth, the CAM-CCBC has become the industry leader accounting today for over 50 per cent of the Brazilian relevant arbitration market.
First pillar: continuous improvement
A leap towards internationalisation
Internationalisation has been considered one of the Centre’s most important agendas.
To boost the internationalisation process, the CAM-CCBC entered into several cooperation agreements with distinct arbitral institutions worldwide, such as the Permanent Court of Arbitration and the Hong Kong Arbitration Center.
These agreements generally function as mechanisms to foster the development of arbitration between leading institutions in different countries by promoting the sharing of experiences and practices in the field of alternative dispute resolution in different jurisdictions.
As far as cooperation agreements go, in 2016, the CAM-CCBC has promoted its first case manager exchange programme with Chile and Switzerland.
After welcoming a Swiss intern in Brazil, the CAM-CCBC was pleased to send one of its members to learn from the Chilean experience in the CAM Santiago.
The exchange programme was an asset to the Secretariat’s practice. Both arbitral institutions could certainly benefit from the other’s best practices and learn from different experiences.
The CAM-CCBC case management formula
The cornerstone of the Centre’s services is its unique case management formula.
In the CAM-CCBC, every case will be assigned a specific case manager upon filing. The case manager will assist the arbitral tribunal, closely follow every step in the development of the proceedings and serve as a direct channel of communication between the parties, the arbitrators and the arbitral institution.
The CAM-CCBC case management formula is guided first and foremost by the principle of party equality, which its case managers will seek to uphold at every step in the proceedings.
Moreover, the Secretariat follows pre-established standard procedures in conformity with ISO 9001:2015, being one of the first enterprises in Brazil to be certified according to the latest version of the norm and still the only accredited arbitral institution in the country.
The CAM-CCBC minute approach to case management has achieved considerable results. In 2015 alone, the Centre once again overcame expectations, having registered 112 new cases amounting to a total of almost 700 cases since its foundation.
Second pillar: operational efficiency
Secretariat headquarters and hearing centre
Over the past two years, the Secretariat headquarters were completely redesigned, having more than doubled in size and number of staff.
To continue providing consistent tailor-made administration services, the CAM-CCBC enlarged the number of staff members, counting today with a qualified and larger team. To that end, the CAM-CCBC staff has more than doubled since 2015.
The Centre’s facilities now include a private study room that allows lawyers to privately and discretely consult case files, and to conduct research on our extensive database of arbitration-related material.
To keep up with the increasing demand, more archive space was added to accommodate case files and amenities were installed for the comfort of the Centre’s personnel.
One of the distinguishing features of the CAM-CCBC is its hearing centre, which offers adequate structure for a variety of meetings and arbitration hearings. The hearing centre was launched in 2016 and has cutting-edge sound technology and IT to meet the needs of complex evidentiary hearings.
The CAM-CCBC headquarters has five large meeting rooms and supporting rooms to accommodate counsels and witnesses prior to depositions.
Arbitrators and lawyers do not need to concern themselves with the hearing’s administrative logistics. Everything is thoroughly taken care of by the assigned case manager, who will always search for the best and most cost-effective suppliers.
Third pillar: transparency
Among the responsibilities of the president of CAM-CCBC is passing administrative resolutions that aim at making the Centre’s work more transparent and its administration services more effective.
Recently, the president passed some administrative resolutions to discipline sensitive issues, such as the procedures used for the charging of arbitration costs and the publicity of arbitrations involving state entities.
Parties, counsels and arbitrators can easily access those instruments on the CAM-CCBC website.
CAM-CCBC Administrative Resolution No. 4/2015 – Charging procedure of arbitration costs – Articles 12.10 and 12.10.1 of the Rules
On 22 October 2015, Resolution No. 4/2015 was passed to consolidate the Secretariat’s usual practices by expressly determining the charging procedure of administrative and arbitrators’ fees, in accordance with articles 12.10 and 12.10.1 of the CAM-CCBC Arbitration Rules.
Generally, pursuant to Resolution No. 4, the party will be given two chances to pay its arbitration costs. If the party does not pay or refuses to do so, the Secretariat shall invite the other party to show, within five days, its interest in paying for the other.
After accepting to pay, the other party will receive the invoices corresponding to the administrative and arbitrators’ fees calculated on the basis of the amount of its own claims, except otherwise determined by the arbitral tribunal.
According to article 12.10.1, the Secretariat shall give notice of the payment to the parties and the arbitral tribunal, and the latter shall disregard the default party’s claims, if any.
Finally, the Resolution establishes that the party that agreed to pay for the other shall be held responsible for the other’s arbitration expenses throughout the entire arbitral proceeding. Nevertheless, the arbitral tribunal may always allocate the refund of arbitration costs at the end of the proceedings.
CAM-CCBC Administrative Resolution No. 2/2016 – Arbitrations involving state entities1 and the publicity principle
The latest revision of the Brazilian Arbitration Act in 2015, set aside any doubts concerning the arbitrability of disputes involving state entities and state-owned enterprises.
CAM-CCBC’s Administrative Resolution No. 3/2014 was designed to deal with arbitration procedures involving state entities and state-owned companies, and was passed to provide the necessary adjustments to the CAM-CCBC Arbitration Rules in order to meet the particularities of such cases.
To cope with one of the most debatable points in arbitration involving state entities, the president of CAM-CCBC passed Resolution No. 2 on 20 January 2016. Resolution No. 2/2016 provides parameters in respect of the publicity of arbitration proceedings with state entities.
Article 14 of the the CAM-CCBC Arbitration Rules states that the arbitral proceedings under the Rules are confidential, except otherwise determined by law, agreed by the parties or to protect the parties’ rights.
However, arbitration procedures involving state entities, pursuant to article 2, paragraph 3 of the Brazilian Arbitration Act, shall follow the constitutional principle of publicity of the proceedings.
For that reason, the Resolution provides that the parties will agree in the terms of reference what information or documents may be publicly available, and how they will be made available.
In this agreement, the parties shall, nevertheless, always observe the administrative aspects of CAM-CCBC and respect the confidentiality required by law; commercial secrecy; third parties’ documents; specific contractual clauses; and issues concerning intellectual property rights.
The CAM-CCBC may inform third parties about the commencement of the arbitration proceedings and the names of the parties. However, it will never offer documents or other pieces of information that the respective state entity is responsible for, according to its specific legislation.
The hearings will not be public, unless otherwise agreed by the parties in the terms of reference.
Ultimately, the arbitral tribunal will decide any request concerning the confidentiality of documents and information that may affect the parties’ interests.
Fourth and fifth pillars: impartiality and independence
To perform case management services with excellence, the CAM-CCBC seeks to act according to international standards of impartiality and independence while serving as the link between parties, counsels, arbitrators and experts.
These principles guide the Secretariat’s daily activities in its quest to ensure fair and equitable treatment for both sides in arbitration proceedings.
The CAM-CCBC developed certain tools to investigate whether its practices are meeting the standards of impartiality and independence.
Internally, the Centre applies a risk management matrix for the purpose of identifying situations that could potentially comprise those standards.
Moreover, the CAM-CCBC rates its clients’ satisfaction level by considering several factors, including impartiality and equal treatment of the parties. In order to monitor its own activities the Centre carries out annual client surveys.
In the last survey conducted by the Centre, the numbers were outstanding. The impartiality of staff members and the equal treatment of the parties were recognised by all participants, including parties, lawyers and arbitrators.
More than 50 per cent of those participants thought that the Secretariat surpassed expectations in terms of the impartiality and equal treatment of all those involved in the arbitration procedure.
As previously mentioned, the Brazilian Arbitration Act was updated in 2015 to expressly incorporate some of the most advanced case law and arbitration doctrine.2 One of the key changes was the creation of the arbitral letters.
Article 22-C of the Brazilian Arbitration Act provides that the arbitral tribunal may issue an arbitral letter to a judicial authority in order to perform or determine the enforcement of the arbitrator’s request.
The arbitral letter is an innovation introduced in the legal system to facilitate the communication between arbitrators and judicial courts. It will serve as a tool to promote effectiveness to arbitrators’ orders concerning third parties and urgent relief, by relying on the role of the support judge (juge d’appui) or, in other words, on the cooperation between the judiciary and arbitrators.
The law also provides for confidentiality of the arbitral letter (article 22-C, sole paragraph), guaranteeing that it shall observe the confidentiality agreed in the arbitration.
The new Civil Procedure Code (NCPC),3 provides the requirements for the issuance of such letters. Nonetheless, the NCPC only came into force in March 2016.
Therefore, in the period before the NCPC came into effect, the arbitral letter existed without any regulation.
Back then, the CAM-CCBC faced a demand in a particular case that perfectly suited the concept of the arbitral letter. Supported by the arbitral tribunal in that case, the CAM-CCBC issued the first arbitral letter in Brazil.
The Centre has dealt with several practical obstacles. For example, before the NCPC came into force, it obtained temporary formal guidance in a decision rendered by the internal affairs’ office of the Appellate Court of São Paulo.
Demand has grown considerably for the issuance of arbitral letters in various other cases under CAM-CCBC administration.
The Centre has been a pioneer in contributing to the development of this new legal instrument and to the Brazilian arbitral community as a whole.
The CAM-CCBC Rules in the Willem C Vis Moot
Preparing law students for qualification is paramount for the development of arbitration and ADRs, and the preparation of lawyers is fundamental for a better understanding of conflict resolution.
The CAM-CCBC is aware of how important this is and has long been committed to its institutional role by sponsoring several educational initiatives, among them the internationally acclaimed Willem C Vis Moot.
For more than six years, the Centre has actively participated in the training of students for the Vis Moot. It promotes practice competition rounds and provides financial aid for students.
The CAM-CCBC Arbitration Rules were chosen to be the official rules applicable to the 2017 Willem C Vis Moot taking place in Hong Kong and Vienna. It is a great honour and accomplishment for the Centre to have its rules scrutinised by arbitration students from all over the world.
This achievement attests to the credibility of the CAM-CCBC Rules and the institution’s international standing.
Mention should also be given to the CAM-CCBC’s participation in the IBA-VIAC Mediation and Negation Competition. This competition focuses on the promotion of training and knowledge of consensual dispute resolution.
Training and providing incentives to future lawyers to act in mediation and negotiation of business-related disputes is something that the CAM-CCBC considers extremely important for the development of ADRs in Brazil.
The CAM-CCBC’s great causes – promoting diversity in arbitration
It is an internationally recognised fact that women are under-represented in arbitral tribunals.
In order to tackle this issue, members of the international arbitration community drew up a pledge to promote gender equality in international arbitration.
The pledge was conceived in 2015 and is a feature of the agenda to set a standard of ‘equal opportunity’ in the appointment of women as arbitrators, as well as improving the profile and representation of women in arbitration. It has already been signed by several institutions and law firms worldwide.
Composed of an almost entirely female body, the CAM-CCBC could not stand aside. It decided to take action on this matter, not only by being the first Brazilian arbitral institution to sign the pledge, but also by promoting the debate in Brazil.
In June 2016, the Centre hosted an event – ‘Gender (in)Equality in Arbitration’ – to raise honest discussions about the subject, and had the honour of welcoming Professor Loukas Mistelis of the Queen Mary University School of International Arbitration as one of the guest speakers.
Among the other speakers, the CAM-CCBC secretary general, Mrs Eleonora Coelho, highlighted the importance of gender diversity in an arbitral tribunal in respect of efficiency and transparency in arbitration proceedings.
Mrs Coelho pointed out that unconscious bias may affect the process of rendering good decisions, as arbitrators invariably build their understanding from their own experiences and background. She emphasised the importance of overcoming prejudice for the benefit of making better and fairer decisions.
Another speaker echoed this point by drawing attention to the fact that all human beings are biased in some way, which means that it is very important to have an arbitral tribunal composed of diverse members.
Some ideas were also presented on how the market as a whole can act to avoid the patterns that can frustrate women at work.
The CAM-CCBC invited the American arbitral community to sign the pledge at www.arbitrationpledge.com and take action in order to embrace the cause of gender diversity in international arbitration.
Change in the CAM-CCBC Arbitration Rules – list of arbitrators
In line with the established doctrine and institutional rules in international arbitration, the CAM-CCBC Arbitration Rules of 2012 place emphasis upon the party autonomy principle and flexibility of proceedings.
The phase of constitution of the arbitral tribunal is one of the main concerns of the Rules.
When initially passed in 2012, the Rules provided for a list of arbitrators comprised of up to 100 members, according to article 3. However, in April 2016, article 3 was modified to increase the range of potential arbitrators in the list to an unlimited number.
The members on the list will be nominated by the president of the CAM-CCBC after consulting with the advisor council for a period of five years, which may be renewed. This modification does not affect the procedural rules in any way.
It was undoubtedly a huge step towards the development of arbitrations under the aegis of the CAM-CCBC and its Rules. The parties and party-appointed arbitrators can now choose from a wider spectrum of professionals who are acquainted with CAM-CCBC procedures.
By having an unrestricted list of arbitrators, the CAM-CCBC has the capacity to offer more options and, consequently, maintains the standards of independence and impartiality of arbitrators.
Furthermore, this change reflects the need of the Brazilian arbitration market to restore the diversity of its arbitrators and to welcome future generations into the field.
The five pillars discussed in this article reflect the very essence of CAM-CCBC’s work. It is with this principled approach to arbitration and ADRs that the CAM-CCBC has become an internationally renowned institution.
Presently, the Centre has new initiatives that are on course to further develop its principled approach, which will be discussed in next year’s review.
By using the five pillars as the basis for its activity and through its engagement in different projects for the development of arbitration and ADRs, the role of the CAM-CCBC naturally exceeds traditional case management and assumes an unparalleled position in the Brazilian arbitration community.
1 It is important to comment that in the Brazilian legal system there is a distinction between state entities of the direct public administration, (eg, ministries, governmental and regulatory agencies and states of the federation) and entities of the indirect public administration (eg, state-owned enterprises and mixed capital companies). For the purposes of this article, direct public administration entities reads as state entities.
2 Law No 13.129, of 26 May 2015.
3 See articles 260, paragraphs 3 and 189, IV, of the Brazilian new Civil Procedure Code.