CAM-CCBC: overview and latest developments

In summary

The Arbitration and Mediation Centre of the Chamber of Commerce Brazil-Canada (CAM-CCBC) continues to improve its case management structure and practices, and the main developments are detailed in this article, along with a breakdown of the centre’s caseload. After 10 years managing over 1,000 arbitration cases under the 2012 Arbitration Rules, CAM-CCBC welcomed the new and modernised 2022 Arbitration Rules. Along with the institution’s efforts to provide greater legal certainty, a new set of corporate dispute arbitration rules were drafted, aiming to keep CAM-CCBC up to date with best practice in the case management of complex arbitrations. The Arbitrator’s Conflict of Interest and Availability Questionnaire was also adapted for the market’s needs and demands. The centre remains dedicated to promoting arbitration and other forms of alternative dispute resolution (ADR), and its outreach initiatives are summarised in this article.

Discussion points

• What makes Brazil an attractive regional arbitration hub
• The latest CAM-CCBC technical improvements
• CAM-CCBC’s focus on fine-tuning procedures and infrastructure
• New organisational structure
• Environmental, social and governance initiatives

Referenced in this article

• Brazilian Arbitration Act
• 2022 CAM-CCBC Arbitration Rules
• Complementary Rule 02/2023 (Corporate Arbitration Rules)
• Supplementary Rules 04/2023 (Arbitrator’s Conflict of Interest and Availability Questionnaire)

CAM-CCBC) is the Latin American trendsetter in international dispute resolution. It is responsible for the administration of a significant portion of the arbitration proceedings that take place in the region. CAM-CCBC has 45 years of experience in administering arbitration proceedings (under its own rules or general rules, such as the United Nations Committee on International Trade Law (UNCITRAL) Rules), and it also offers expedited proceedings for arbitration, mediation and dispute boards, in addition to acting as the appointing authority in ad hoc proceedings on request. All these processes are certified in accordance with the ISO 9001 standard on quality assurance and continuous improvement.

The institution’s remarkable reputation has been achieved through years of dedication and consistent excellence in ADR case management. As at May 2024, the centre had administered over 1,740 ADR proceedings with claims totalling over 150 billion reais.

This is mainly the result of a modern and robust arbitration framework in Brazil, which was set up after the enaction of the Brazilian Arbitration Act in 1996 and the ratification of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) in 2002, and benefits from the support of state courts. At the core of its growth, is the centre’s adoption of best practices for case administration, and its active role in the promotion and development of arbitration in both domestic and international cases.

Brazil’s ADR community faced unprecedented challenges in 2020 and 2021, and CAM-CCBC adapted its services during the covid-19 pandemic, while maintaining high quality and prioritising health and safety for all. The obstacles presented by the pandemic, however, did not prevent the institution from growing and developing its services. In 2022 and 2023, the institution resumed the in-person format for its events and hearings, while maintaining online and hybrid services, and continued to improve its internal structure, regulatory framework and case management techniques. This brief overview summarises the latest developments at CAM-CCBC, including its key activities, statistics and new regulations.

Brazil’s arbitration framework

Brazil’s legal framework for arbitration has proven to be robust and reliable, setting the foundations that in only a couple of decades turned the country from a non-player in the area into one of the world’s largest users of arbitration, recognised by practitioners as an arbitration-friendly jurisdiction.

The Brazilian Arbitration Act (BAA)^[1] was enacted in 1996 and is based on the UNCITRAL Model Law. In 2001, the Brazilian Supreme Federal Court (STF) confirmed the constitutionality of the BAA through a decision rendered in a leading case.^[2] Further, with the adoption of the New York Convention, ratified through a presidential decree on 23 July 2002,^[3] Brazil established a modern legal framework for arbitration, in line with international standards.

The BAA was revised in 2015^[4] and included some important innovations and clarifications concerning emergency proceedings and disputes involving state entities. In addition, Brazilian courts have consistently shown an arbitration-friendly approach, based on a deep understanding of and regard for party autonomy, Kompetenz-Kompetenz and internationally prevalent best practices in arbitration.

With this strong legal framework, a more pronounced growth curve can be seen in the number of proceedings entrusted to administration by CAM-CCBC, which in 2011 reached the mark of more than 60 cases initiated annually. In the past five years, the average number of cases initiated each year has risen to 112. In 2024, 59 cases have already been filed up until mid-May, marking the most productive quarter in the centre’s history.

Statistical breakdown of claims

At the time of writing, there are over 440 ongoing arbitration proceedings, distributed among the nine case management teams.

Among the 115 arbitration proceedings initiated in 2023, the proceedings involving multiple parties as claimants or respondents amounted to 73.5 per cent. The overall number of parties involved in these proceedings was 485, an increase of 3.19 per cent in comparison with 2022 (which involved a total of 470 claimants and respondents). Those proceedings also featured parties from 18 different countries, including Brazil, the British Virgin Islands, China, Colombia, Denmark, England, Germany, India, Israel, Japan, Luxembourg, the Netherlands, Paraguay, Portugal, Singapore, the United Arab Emirates, the United States and Uruguay. Apart from Brazilian nationals, the number of foreign parties in 2023-filed proceedings increased by 54.55 per cent.

In 2023, CAM-CCBC registered four new cases involving Brazilian state and state-owned enterprises. By the end of 2023, there were over 30 ongoing arbitral proceedings featuring parties from various levels of the Brazilian public administration.

Corporate contracts still represented the majority of cases in 2022 (40 per cent). Sales of goods and supplies of services (20 per cent) and construction-related and energy contracts (17 per cent) were also featured in the top three types of disputes cases. Various business contracts (loan, leasing, real estate, insurance), concession contracts and intellectual property contracts are among other recurring subjects identified in the centre’s caseload.

Regarding the diversification of ADR proceedings administered by the centre, from 2021 to 2023, CAM-CCBC administered a total of five emergency arbitration proceedings. In 2023, the centre received three requests for emergency arbitrations. The centre also received 16 new requests for mediation and two requests for dispute boards. Throughout the year, CAM-CCBC administered, respectively, 23 mediation proceedings and four dispute boards.

Latest CAM-CCBC technical improvements

2022 Arbitration Rules

CAM-CCBC remains steadfast in its commitment to continuous improvement, with the presidency, direction and deliberative council consistently vigilant in proposing and developing innovative solutions to meet the evolving needs and demands of the market. This proactive approach ensures that CAM-CCBC not only adapts to changing demands but also anticipates future trends, maintaining its relevance in Brazil and abroad. For instance, after serving as the foundation of CAM-CCBC's administered arbitration for 10 years, the revision process for the 2012 rules was undertaken, leading to the approval of the 2022 CAM-CCBC Arbitration Rules. The drafting process spanned nearly three years and the goal was to craft rules that reflected the institution's vast experience and the perspectives of arbitrators, lawyers, parties and other stakeholders.

The 2022 CAM-CCBC Arbitration Rules^[5] introduced several key innovations, including a shift to electronic procedures as the default, which offers greater speed, reduced costs and environmental sustainability for arbitrations. The rules also address complex arbitration scenarios with provisions on the consolidation and the joinder of additional parties.

Apart from the innovations introduced, the 2022 rules proved to be an excellent opportunity to consolidate previously scattered administrative resolutions on expedited arbitration, emergency arbitrators, UNCITRAL Rules proceedings and third-party funding. Furthermore, the current set of rules incorporated practical insights from case managers, addressing frequently discussed topics during the terms of reference meetings, such as the role of the arbitral tribunal secretary and data protection.

Another significant amendment addressed the process of appointing arbitrators. According to the previous version of the rules, party-appointed arbitrators were invited to choose the president of the arbitral tribunal from among the members of the List of Arbitrators. Only on an exceptional basis and based on a reasoned justification and approval of the president of CAM-CCBC, the arbitrators chosen by the parties could appoint a person who was not a member of the List of Arbitrators as president of the arbitral tribunal. According to the newly launched rules, it is preferable for the appointment of the president of the arbitral tribunal to be made from the members of the List of Arbitrators, but it is no longer mandatory. CAM-CCBC’s List of Arbitrators remains a valuable tool for the parties and a reference for the appointments made by the institution. However, the new wording of article 11.5 (4.9 in the former rules) leaves more room for party autonomy while reflecting the maturity levels reached by the Brazilian Arbitration Market.^[6] The rules are the result of CAM-CCBC’s years of experience, aligned with the international best practices in arbitration.

Corporate Arbitration Rules

A considerable share of CAM-CCBC’s administered arbitrations relate to corporate disputes. In 2023, for example, of all the cases filed, 40 per cent involved shareholders’ agreements and share purchase agreements.

Aware of this and the intrinsic peculiarities of corporate disputes, CAM-CCBC launched its Corporate Arbitration Rules (through the Supplementary Rules No. 02/2023) on 26 April 2023.^[7] The complementary regulation is the result of extensive research by a group of corporate law experts, and the review and contributions of the CAM-CCBC advisory board, the presidency and the board of directors, taking into special consideration the challenges imposed by the legal nature of these disputes and the issuing of awards that are likely to affect the rights of third parties.

The Corporate Arbitration Rules will be applicable when, cumulatively:

• the arbitral award is capable of affecting not only those parties who are the claimant (or claimants) and the respondent (or respondents) named in the request for arbitration, but also the legal sphere of a business corporation, limited liability company or association (legal entity) and, simultaneously, other partners, associates or shareholders who hold securities of the class or type directly subject to the effects of the future arbitral award, and the management who are also subject to it (affected third parties);^[8]
• the nature of the dispute requires a uniform decision for all affected third parties;^[9] and
• the by-laws or the articles of incorporation of the legal entity include a clause whereby the parties agree that the arbitration shall be administered by CAM-CCBC and governed by the CAM-CCBC rules, as per article 1 of the CAM-CCBC Arbitration Rules.^[10]

Regarding the subject matter of the disputes, the Corporate Arbitration Rules will be applicable to arbitrations dealing with:

• the invalidity of meetings of partners, shareholders, associates or their respective administrative bodies, as well as the invalidity of any decisions taken at these meetings;^[11]
• total or partial dissolution, withdrawal or exclusion of partners, shareholders or associates, or the determination of assets;^[12]
• liability of the controller, management or members of the fiscal council before the legal entity, its shareholders, partners or associates;^[13] or
• liability of shareholders, partners or associates for the abusive exercise of voting rights.^[14]

The affected third parties will have the opportunity to join the proceedings and, if a new arbitral proceeding is filed to discuss the same subject matter as that of a previously ongoing arbitration, the jurisdiction of the arbitral tribunal constituted first shall prevail.

The new Corporate Arbitration Rules aim to provide greater efficiency and legal certainty to disputes dealing with multiple affected parties, ensuring arbitration as the preferred method for solving corporate disputes.

Supplementary Rules 04/2023: adapting the Arbitrator’s Conflict of Interest and Availability Questionnaire to contemporary needs

In response to the market's increasing concerns regarding potential conflicts of interest, CAM-CCBC has taken proactive measures to address these issues within its administered arbitrations. The centre has revised its arbitrator questionnaire to include precise questions, aiming to assist arbitrators and parties in navigating this delicate phase of the proceedings effectively. It addresses questions about relationships between the appointed arbitrator and the parties and parties’ counsel, levelling the playing field on disclosure.

This update provides greater clarity on the independence and impartiality of appointed arbitrators, which are cornerstones of their duty, and underscores CAM-CCBC's commitment to upholding the best international practices.

Current organisational structure, specialised case managers and state-of-the-art facilities

The provisions of CAM-CCBC’s internal organisation are contained in its Internal Rules, approved on 30 March 2023. These rules bring together provisions referring to the roles and responsibilities of the executive board, organisation of the advisory board and the mediation advisory board, composition of the lists of arbitrators, mediators and other reference lists, creation of committees and cooperation with associations, agencies and similar entities, in Brazil and abroad.

Thus, CAM-CCBC currently has a presidency composed of one president and two vice presidents, elected pursuant to the CAM-CCBC Internal Rules, and an executive board, constituted by one executive director and by the general secretariat.

For the 2023–2025 term, the CAM-CCBC presidency is comprised of Rodrigo Garcia da Fonseca (president), Silvia Rodrigues Pachikoski and Ricardo Aprigliano (vice presidents), and the authors of this article, who were all present in the 2021–2023 directorate as vice presidents and widely contributed to the advances achieved in recent years.

Under the terms of the Internal Rules, the presidency may collaborate with the advisory board, made up of former presidents of CAM-CCBC and at least five members from the List of Arbitrators. Board members are consulted in the cases expressly referred to in the Internal Rules and have two-year terms; reappointment is permitted.

In collaboration with this higher governance, CAM-CCBC has developed a groundbreaking case management model in Brazil. The centre continues to push forward its practices and internal procedures, bringing innovation to the Latin American market and providing even better case management and support to its over 440 ongoing cases.

Each of the nine CAM-CCBC case managers are qualified lawyers with extensive practical and academic experience who closely follow every step of the proceeding, from the filing of the request for arbitration to the rendering of the final award. The case managers will also assist the tribunal and serve as a direct channel of communication between parties, counsel and arbitrators, always observing the principles of impartiality and fairness. Since 2018, each secretariat team has been assigned specific areas of expertise, such as intellectual property, construction, oil and gas, etc.

All case managers are trained in CAM-CCBC’s case management style, operated under an ISO quality management system that evolves through constant monitoring and reports of micro-procedural developments. These activities are overseen by the secretariat coordinators (Silvia Salatino and Cristiane Gertel) and the general secretariat. CAM-CCBC aims to provide the perfect balance between transparent and standardised case management while also leaving room for flexibility and party autonomy.

Keeping up with international standards, CAM-CCBC’s main hearing centre is located in Vila Olímpia, in the heart of São Paulo’s business hub. It has state-of-the-art infrastructure, sound technology and information technology (IT), providing the best environment for the conduct of proceedings. The centre also invested in the technological upgrade of all its hearing rooms, installing in each of the three rooms the best audio and video equipment, such as high-definition dual cameras that provide superior recording of videoconferences.

Given the unforeseen circumstances brought about by a global pandemic, remote and hybrid hearings became common in CAM-CCBC administered proceedings. The centre provided clear guidelines detailing the technical requirements needed for smooth online meetings and valuable insight on the planning and conduct of remote hearings.^[15] Additionally, CAM-CCBC put top-of-the-line cybersecurity measures in place, with several walls of protection ranging from the choice of equipment to the implementation of software and technical training of staff.

The IT department is set up to assist remote hearings, and case managers have been trained to conduct virtual hearings following the best international arbitration practices. The parties can even choose the preferred platform to conduct meetings and hearings from a range of videoconferencing software.

To sum up, CAM-CCBC offers constant support throughout proceedings, as well as sophisticated hearing facilities and virtual resources at no extra cost to the parties. This is one of the main reasons why CAM-CCBC is a market leader in Brazil and is recognised globally for its excellence in every aspect of the administration of ADR proceedings. The work developed by the centre is based on six pillars: efficiency, transparency, impartiality, independence, confidentiality and continuous improvements. These principles, along with the secretariat’s work, have set the benchmark for high-quality secretarial services and have established a solid reputation for the centre both in Brazil and abroad.

Institutional and social activities

CAM-CCBC is aware of the importance of its institutional role to promote ADR, concluding cooperation agreements with peer institutions, granting scholarships to law students, counsel and practitioners, promoting internships for students, granting sponsorships, supporting academic initiatives and promoting academic events.

Worldwide, CAM-CCBC has several partnerships with chambers, institutions and universities, and is also active in many other initiatives. In Brazil, CAM-CCBC is recognised as a pioneering institution playing a significant role in assisting the study and practice of arbitration and ADR.

CAM-CCBC regularly organises events with highly recognised universities abroad such as New York University, Columbia University, Bucerius Law School in Germany and Sciences Po in France. The centre also grants scholarships to Brazilian law students and practitioners in events and universities such as the Washington College of Law (American University), the Sciences Po and organisations such as the Max-Planck Institute for Comparative and International Private Law in Germany.

As a not-for-profit organisation, CAM-CCBC has also provided financial aid on numerous occasions to law students and numerous sponsorships for events such as the International Arbitration Competition of Asunción, the International Negotiation Competition and the Consensual Dispute Resolution Competition (IBA-VIAC Mediation and Negotiation Competition). Additionally, the centre has been an annual sponsor of the Willem C Vis International Commercial Arbitration Moot. As well as providing sponsorships for the teams participating in the Vis moot, CAM-CCBC also organises two pre-moots: in São Paulo and Hamburg.

In 2019, CAM-CCBC launched the NewGen Commission, a group to promote the next generation of dispute resolution practitioners. The Commission promotes worldwide integration, provides academic opportunities and coordinates other initiatives to assist the development of the upcoming names in ADR, with a focus on cultural, regional, ethnic and gender diversity. In the past two years, several projects have been developed, such as NewGen Blog, newsletters, a legal writing course for moot participants, the NewGen council for diversity, as well as scholarships, workshops and webinars.

Furthermore, CAM-CCBC holds its annual international arbitration congress (the CAM-CCBC Arbitration Congress)^[16] and organises the São Paulo Arbitration Week,^[17] a collaborative calendar of events put together by several institutions and law firms dedicated to the best practices in international arbitration.

Environmental, social and governance initiatives

CAM-CCBC’s environmental and social sustainability are priorities that are shown on all fronts, verified in its projects, its participation in high-impact campaigns and its daily activities.

Thus, the CCBC and the CAM-CCBC, committed to good socio-environmental practices, have undertaken to neutralise their carbon emissions since 2019^[18] by supporting Brazilian environmental projects that are certified and audited in a transparent and traceable manner. Likewise, since 2022, the CAM-CCBC Arbitration Congress ensures the neutralisation of emissions resulting from the processes of setting up, operating and breaking down its events as well as travel by staff members and congress participants.

In line with environmental responsibility policies, several measures to reduce waste have been adopted, particularly the implementation of exclusively electronic processes at CAM-CCBC. According to surveys conducted in 2020 and 2021, the digitalisation of proceedings alone has contributed to a reduction of up to 92 per cent in expenses^[19] incurred by the parties in the filing and sending of hard-copy submissions.

In 2021, CAM-CCBC joined the Green Pledge, a campaign that demonstrates that the global arbitration community is committed to reducing its carbon footprint. Since then, CAM-CCBC considers the guidelines of the Greener Arbitration Protocol in all its activities. The aim is to minimise the environmental impact of arbitral proceedings by adopting clean forms of energy, reducing long-distance travel and diminishing waste. Moreover, CAM-CCBC works actively to raise awareness in the community, having held the event titled ‘Arbitration and Sustainability Policies – Perspectives and Challenges’ in 2022, in partnership with the Latin American Committee for Greener Arbitrations. In line with the institution's goals, CAM-CCBC has recently issued Administrative Guidelines No. 03/2023,^[20] which seeks to reduce the environmental impact of all its activities.

The rule establishes the adoption of preventive measures to mitigate the environmental impacts of the activities, the responsible use of natural resources, the promotion of environmental responsibility among users, partners, employees and suppliers, the use of technologies that generate less environmental impact, the monitoring of activities to measure and reduce their possible environmental impacts, and the annual disclosure of data on the subject.

Social sustainability is also a hallmark of CAM-CCBC’s activities and it is constantly working to ensure greater representation and inclusion on the ADR market.

When the CAM-CCBC was founded, the arbitrators (with few exceptions) were male lawyers known in the business world and professors from the University of São Paulo. For nearly 15 years after the creation of Chamber of Commerce Brazil-Canada’s Arbitration Committee – despite having some of the biggest names in dispute resolution in Brazil – the list of arbitrators included only one woman, who had joined in the 1990s.

Up to 2003, only two women had been appointed as arbitrators in arbitration proceedings, each of them only once. This is a striking contrast compared with the most recent gender statistics, which reveal over 60 per cent female representation among presiding arbitrators.

This evolution is largely a result of CAM-CCBC joining the ERA Pledge^[21] and the publication of Administrative Resolution No. 30/2018,^[22] which sets out measures to expand women’s participation in the centre’s activities. The aforementioned Administrative Resolution included targets for appointing women arbitrators by CAM-CCBC and expanding female representation on the List of Arbitrators. There are also provisions stipulating that there should be at least 30 per cent women speakers at all events and initiatives that the institution organises, sponsors and supports, and on all committees organised by the centre, as well as dissemination of statistics and mentoring.

Since 2020, CAM-CCBC has participated in and supported Racial Equality for Arbitration Lawyers, in addition to having an in-house diversity committee that promotes awareness on wide-ranging issues. There have already been lectures and workshops on ageism, the LGBTQIA+ community, race and ethnicity, and people with disabilities, among others. Furthermore, a consulting firm was hired to carry out an internal diagnosis of diversity and to create policies for hiring underrepresented minority groups, in addition to incentives for the qualification and proper inclusion of these new employees.

In 2022, the CCBC received the ‘São Paulo Seal of Diversity’, a certificate awarded to entities in the state of São Paulo that develop diversity programmes, projects and actions in their work environments and areas of business activity, in recognition of good practices relating to inclusion in the people management policies of public and private organisations and in society at large.

Final remarks

CAM-CCBC is constantly challenging itself to raise its standards in case management and institutional activities, leading the Brazilian and Latin American market and standing out in the international market for an increasingly efficient service and the promotion of ADR in Brazil. CAM-CCBC recognises that the bar is always set very high for any institution that wishes to remain a market leader, even more so than to others, and it cannot sit back on its past successes. Continuing improvement and responsible innovation are of the essence.

The 2022 Arbitration Rules, the new Corporate Disputes Rules and the new arbitrator questionnaire are aligned with the best international practices and reaffirm the centre’s capability of solving disputes in an efficient manner. All the rules are guided mainly by the principle of party autonomy and seek to inject a considerable degree of flexibility into arbitral proceedings.

However, CAM-CCBC’s work goes far beyond the delivery of cutting-edge services in the administration of ADR proceedings. The centre is constantly contributing to the development of the market in its daily activities. This, along with the serious commitment to its role in the administrative, institutional and international fields, has guaranteed CAM-CCBC leadership among arbitral institutions not only in Brazil and Latin America but worldwide.

Aware of its leading position in the Brazilian arbitral community, CAM-CCBC will continue to move forward, maintaining the excellent service provided and developing itself alongside ADR, while fulfilling rising demands. With the best and most reliable structure, norms and internal processes to increase the professionalisation and internationalisation of its services, the institution will continue to support and publicise arbitration and other forms of ADR in Brazil and abroad.

Endnotes