2/15/2024
Although arbitration is a consolidated dispute resolution method in Brazil, some issues were highly debated in 2023, such as: the premises of corporate arbitration; the extent of the arbitrators’ duty of disclosure; the jurisdiction to rule on anticipated production of evidence and the stance of Brazilian Courts of Justice on attempts to annul arbitration awards. Throughout 2023, these issues were addressed by the players of the market, confirming its self-regulatory power and its adaptability to its users’ demands.
In the following paragraphs, the main developments in the field of arbitration in Brazil in 2023 will be discussed.
Corporate Arbitration. Despite the widespread utilization of collective arbitration in Brazil, many of the premises that should guide such procedures still need to be regulated. To fill this legal gap, CAM-CCBC, an organization of which our partner Silvia Rodrigues Pachikoski is Vice-President, drafted and published its Corporate Arbitration Rules, a pioneer initiative that brings new practical and specific regulation for the administration and issues observed in collective proceedings involving corporate matters.
Duty of disclosure. The year 2023 was marked by discussions over the arbitrators’ duty of disclosure and its impact on challenges and annulment actions. To meet this market demand and increase the level of transparency in arbitration proceedings, CAM-CCBC adjusted its Conflicts of Interest and Availability Form (Supplementary Rule No. 4/2023). The new version of the form includes enquires regarding previous professional relationships between the arbitrators, the lawyers, and the parties.
Anticipated Production of Evidence. The Brazilian Code of Civil Procedure of 2015, by allowing the production of evidence without fulfilment of the urgency requirement, raised a debate over the jurisdiction to rule upon such action, in cases in which there is an arbitration clause. In 2023, the Brazilian Superior Court of Justice (“STJ”), judged the issue for the first time, holding that, in the absence of urgency, the Arbitral Tribunal has jurisdiction to rule this type of procedure (Special Appeal No. 2.023.615 – SP). CAM-AMCHAM, aiming to provide greater legal certainty to requests of anticipated production of evidence under its tutelage, drafted and published a new resolution regulating such procedures. In this sense, it is recommended that the definition of jurisdiction for the early production of evidence – whether of the judiciary, arbitral tribunal/single arbitrator, or emergency arbitrator – should be defined when drafting the arbitration clause, in order to avoid possible discussions on the matter.
The Brazilian Courts’ pro-arbitration stance. Despite alarmist reports of an increase in annulment actions, a survey published in 2023 by the Brazilian Arbitration Committee (“CBAr”) and the Brazilian Association of Jurimetrics, debunked these unfounded attacks on arbitration. The survey found that, in São Paulo State Court, notably the court that processes the most arbitration-related cases, between 2018 and 2022, 51.2% of the decisions related to the institute were rendered in favor of arbitration, such as the countless pre-arbitral injunctions. The survey also showed that only 2.8% of arbitration awards are challenged in the Judiciary, and the likelihood of success in these claims is even more remote, only 1.5%. In conclusion, the trust and cooperation established between the judiciary and arbitration was highlighted.
In summary, the year 2023 was characterized by the remarkable adaptability of arbitration in Brazil. The attention of arbitral institutions and of the Judiciary itself to the institute, shows the success of this dispute resolution method, allowing for the expansion of its usage by the Brazilian market as a whole.
