Confidentiality is one of the main characteristics of arbitration and mediation. In these procedures, confidential and strategic information about the operations of the companies involved, which include contracts, intellectual property, technologies, customer and supplier data, projects and business plans, are discussed. If disclosed, these data and the existence of the dispute may impact the relationship of the companies involved with the other players in your market, damaging their business.
Although confidentiality is not expressly provided for in the Arbitration Law (Law No. 9,307 / 96), it is provided for in the arbitration regulation of the main Brazilian institutions (for example, CAM-CCBC, CIESP / FIESP and CBMA) and in arbitration clause included in the contracts. In the case of mediation, confidentiality is expressly provided for in Article 2, VII of the Mediation Law (Law No. 13.140 / 15).
There are still many discussions to be faced about confidentiality. Among the most discussed points in the legal community are the limits of this characteristic, for example: should the arbitrations and mediations involving public administration entities be public? What information about the procedures can be provided to the Government for tax purposes?
This last one has recently been the subject of analysis by the Judiciary, which determined that Brazilians arbitration and mediation centers are not required to provide information on the parties involved in arbitration and mediation procedures administered by them to the Federal Revenue of Brazil.
In February, the Federal Regional Court of the 2nd Region decided in favor of the Brazilian Center for Mediation and Arbitration (“CBMA”) in relation to the request of the Federal Revenue of Brazil to provide documents regarding the sentences and agreements between 2008 and 2011. The institution also asked for information on the fees of those who hired the institution’s mediation or arbitration service.
By majority, it was decided that, although mediation and arbitration centers have a duty to provide information and documents regarding their status as a taxpayer, this legal duty does not cover third party information, which includes sentences or agreements entered into in arbitration proceedings and information about the fees paid by those who contracted the service.
In addition to the CBMA Arbitration Regulation guaranteeing the confidentiality of such information, there is no legal provision to substantiate the claim of the tax authorities, which must be subject to the principle of strict legality.
According to TRF-2, there are several other means for the Federal Revenue Service to carry out its tax inspection without exceeding legal and constitutional limits.
In this sense, mediation and arbitration centers are not obliged to comply with requests from the tax administration in order to provide information and deliver documents that concern third parties who have even contracted the confidentiality of the mediation or arbitration procedure to which they are submitted.
In any case, it is important to emphasize that the minority opinion understands that the Federal Revenue did not want to obtain the information from third parties through the requested documents, but from the CBMA, and that the confidentiality of the procedures cannot be applied to the Federal Revenue, as it is a matter related to the public interest.
Coauthor: Giulia Spalleta
