In February this year, the National Agency of Electric Energy (“ANEEL”) approved, through Resolution n°. 3.173/2023, the new arbitration clause of the Chamber of Electric Energy Commercialization (“CCEE”), which became effective upon disputes related to events that occurred as of March 1. The players in the Electric Sector must be aware of the changes, either to avoid problems or to define the strategy of their business or a potential dispute.
Among the main changes, the most striking one was the end of the exclusivity granted to the Chamber FGV of Mediation & Arbitration to manage disputes between CCEE agents. Now, with the possibility to choose from any of the registered arbitral institutions within the CCEE, the agents can opt for the institution that best serves the particularities of their contractual relationship, considering issues such as costs of the arbitration proceedings, rules, list of arbitrators, secretariat, among other factors.
The new arbitration clause also determined that registered chambers shall create a repository with summaries of the arbitration awards related to the CCEE proceedings. In practice, equipped with statistical data, the agents will gather better information to evaluate the probability of success of the lawsuit, which allows more conscious decision-making and, ultimately, tends to reduce the number of disputes. The publication of decisions is also positive given the fact that it contributes to the standardization of decisions that deal with similar situations.
Other important changes encompassed by the resolution concerns the hypothesis of arbitrators’ “quarantine” period applicable to certain market agents. Former contractors, service providers, and former consultants will now be able to act as arbitrators six months after they disassociated themselves from a party involved in the conflict. These changes seek to increase the number of possible arbitrators, guaranteeing more options to the agents.
Ultimately, it is worth mentioning the provision according to which CCEE may request the arbitral tribunal to order the party to offer a guarantee when the operationalization of the arbitral award impacts third parties – an innovation that brings more security to the market.
Considering that a dispute resolution method, is not only focused on resolving disputes, but it is a factor in the contract’s risk assessment equation, these changes must be carefully addressed, both while structuring operations and when settling potential disputes.
The L. O. Baptista Advogados, a law firm with solid performance before the most renowned arbitration chambers in the country, has capacitated professionals in the areas of arbitration, energy, and corporate to provide specialized advice on the Electric Sector disputes.
