There has been much discussion and media reports about the need for increased disclosures by arbitrators and its impacts on the challenges in arbitrations and the lawsuits for the annulment of arbitral awards.
Although statistics indicate that the increase in the number of challenges is proportional to the increase in the number of arbitration cases, in September of the current year, through the Supplementary Rule No. 4 of 2023, the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (“CAM-CCBC”) amended its Conflict of Interest and Availability Form, whose purpose is to assist the arbitrator in complying with the duty of disclosure, as provided for in the Brazilian Arbitration Act. This change aims to guarantee that arbitrators will provide more necessary information, aiming to ensure a greater level of security in the arbitration proceedings.
The new form has fifteen questions, the answers to which must consider both parties involved in the dispute, their lawyers, and any other materially relevant individuals and companies, aiming to increase the level of transparency and trust.
In general, the questions seek to provide information regarding (i) the previous existence of a relationship between the arbitrator and the parties or their lawyers, from a professional point of view (e. g. whether the arbitrator has been a manager, employee or provided services for them), personal point of view (e.g. whether the arbitrator has a relationship of friendship or enmity with them) and business point of view (e.g. whether the arbitrator signed commercial contracts with them); (ii) the number of appointments that the arbitrator received from the law firms representing the parties; (iii) if the arbitrator prepared legal opinions for the law firms acting in the arbitral proceedings, among others.
The initiative, in addition to contributing to increase the legal certainty of the arbitration proceedings administered by CAM-CCBC, also demonstrates the institution’s attention to the market’s demands.
As of October 2, 2023, the new version of the Conflict of Interest and Availability Form will be used for all appointments of arbitrators in the proceedings administered by CAM-CCBC.
Co-authors by: Silvia Rodrigues Pachikoski e Thiago Andere Martins
