The Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (“CAM-CCBC”), which is the largest Brazilian arbitration institution, revised its arbitration rules for the first time in the last ten years. The new rules entered into force on November 1, 2022 (“2022 Rules”). Below is a summary of the key changes in relation to the previous rules (“2012 Rules”).
Possibility of using UNCITRAL Rules – Article 1.2 of the 2022 Rules
The CAM-CCBC may also administer proceedings governed by the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL).
Written communications – Art. 3 of the 2022 Rules
- Communications shall be preferably sent electronically
Written communications (submissions, notices, subpoenas) shall be sent electronically with proof of delivery or receipt, without the need of hard copies, unless the parties agreed otherwise.
- Receipt of communications
Communications shall be deemed received when delivered to the electronic or physical address informed by the party.
If the party has not provided its address, communications shall be deemed to be received when delivered directly to the addressee or their representative (i) at the registered office, primary residence, or postal address of the party or their representative; or (iii) at the addresses (electronic or physical) informed in the contract or in the arbitration agreement for receiving communications between the parties.
A notification shall be deemed received if reasonable steps have been taken to deliver the communication to a party’s addresses and there is a notification with proof of attempted delivery.
Arbitral tribunal may deliberate remotely – Art. 4 of the 2022 Rules
The acts of the arbitral proceedings may take place at a different location from that of the seat, or remotely by videoconference or other means of communication, at the discretion of the arbitral tribunal.
Impartiality and independence of arbitrators – Art. 9 of the 2022 Rules
The parties must disclose any individuals or legal entities that may be relevant to the arbitration as well as the existence of third-party funding in order to allow the arbitrators to verify and disclose any conflict of interest.
Challenge of arbitrators – Art. 14 of the 2022 Rules
A party may challenge arbitrators for lack of independence, impartiality, or for justifiable cause within ten days after becoming aware of the relevant fact. A special committee composed of three members of the list of arbitrators appointed by the CAM-CCBC Presidency will decide the challenge. The 2022 Rules grant the special committee powers to request the parties and the challenged arbitrator to provide additional clarifications, the production of new documents, and any other measures deemed useful, necessary, and proper, provided that the requests do not delay the committee’s decision. The committee’s decision is final, with no possibility of appeal.
Joinder of Additional Parties – Art. 18 of the 2022 Rules
A party that wants to include an additional party to the arbitration shall submit to the secretariat a request for arbitration against the additional party at the earliest opportunity. Likewise, if a party voluntarily wishes to be included in the proceedings, it may submit a request to join it.
If the arbitral tribunal has not yet been constituted, the CAM-CCBC Presidency shall decide on the joinder of the additional party when: (a) there is consent from all parties or (b) the additional party has a connection with the subject matter submitted to the arbitration and may, on a prima facie analysis, be deemed to be bound by the arbitration agreement.
If the arbitral tribunal is already constituted, it shall decide on the joinder of the additional part, after consultation with the parties.
Consolidation of Proceeding – Art. 19 of the 2022 Rules
The 2022 Rules provide more clarity as to the consolidation of proceedings.
The CAM-CCBC Presidency shall decide a party’s request for consolidation. The request shall be made before the constitution of the arbitral tribunal of the second proceeding. The Presidency will consider the state of the first proceeding and whether the following requirements are met:
(a) the parties have agreed to the consolidation; or
(b) all the claims in the arbitrations are made based on the same arbitration agreement(s); or
(c) the arbitration claims are not made based on the same arbitration agreements(s), but (i) the arbitrations involve the same parties, (ii) the disputes are related to the same legal relationship, and (iii) the CAM-CCBC Presidency understands that the arbitration agreements are compatible.
When deciding on the consolidation, the CAM-CCBC Presidency may consult the arbitrators already invested in the position.
Disputes involving multiple contracts – Art. 20 of the 2022 Rules
The parties may bring claims arising from or related to more than one contract in a single arbitral proceeding. Before the constitution of the arbitral tribunal, the CAM-CCBC Presidency shall decide any objection to a continuation in a single proceeding of claims arising from or related to more than one contract. Once the arbitral tribunal is constituted, it shall analyze the decision that had authorized the processing of the claims in a single arbitration.
Claims arising from or related to more than one contract is possible when: (a) the arbitration agreements are compatible; (b) the claims originate from the same transaction of series of transactions; (c) there is no significant impact on the efficiency and speed of the proceeding.
Emergency arbitrator – Art. 21 of the 2022 Rules
Unless the parties have agreed otherwise (the so-called “opt-out system”), the party that needs provisional measures may file for the appointment of an emergency arbitrator before the constitution of the arbitral tribunal. The emergency arbitrator shall comply with the same duties of independence and impartiality from the arbitral tribunal.
The emergency arbitrator proceeding is regulated by Annex I of the 2022 Rules and its institution does not imply the waiver of any other provisional measures before the competent judicial authority.
Amendment or alteration of claims – Art. 23 of the 2022 Rules
Like in the 2012 Rules, the parties may alter, modify, or amend their claims until the date of signing of the Terms of Reference. The 2022 Rules innovate by expressly providing that the alteration, modification, or amendment of the claim, as well as the inclusion of new claims after the Terms of Reference are executed must be authorized by the arbitral tribunal. The arbitral tribunal shall consider the nature of such new claims, the current status of the arbitration, and any other relevant circumstances.
Conduction of the Proceedings – Art. 25 of the 2022 Rules
The arbitral tribunal may call physical or remote hearings to consult with the parties on procedural measures, including to suggest the resolution of the dispute by another alternative dispute resolution method. It may as well modify deadlines for submissions and production of evidence.
The time limit for rendering the award – Art. 29 of the 2022 Rules
Under the 2012 Rules, an arbitral tribunal should issue an award in 60 days, which could be extended for up to 30 days at the presiding arbitrator’s discretion. Now the time limit for rendering the award may be extended for up to 60 days.
Arbitral award – Art. 30 of the 2022 Rules
Following the changes brought by the Covid-19 Pandemic, the 2022 Rules provide that the arbitral award may be signed electronically and/or have separate signature sheets subsequently combined into a single document if the parties did not agree otherwise.
Expedite proceedings – Art. 36 and 37 of the 2022 Rules
Disputes shall be solved in an expedited manner if they involve amounts that do not exceed the amount of BRL 3 million (circa USD 580,000 on November 2022 exchange rate). The expedited procedure provisions are not applicable if the parties agreed to opt out of it. Before the constitution of the arbitral tribunal, the CAM-CCBC Presidency, at their discretion or at the request of a party, may dismiss the application of the expedited procedure. Such a decision is subject to ratification from the arbitral tribunal.
Confidentiality – Art. 39 of the 2022 Rules
The 2012 Rules provided that the CAM-CCBC could disclose excerpts of arbitral awards for research purposes, without identifying the parties. The 2022 Rules confer the parties the possibility of objecting to such a publication.
Processing personal data – Art. 41 of the 2022 Rules
The 2022 Rules expressly regulate the processing of personal data, according to Brazilian data protection law (LGPD). The arbitral tribunal and the parties shall ensure the compliance with the data protection legislation throughout the proceedings. In case of suspected or confirmed personal data breach related to the arbitral proceeding, the CAM-CCBC and other participants shall be immediately informed so that the competent authority may be duly notified.
Once the arbitration ends, the personal data processed during the proceedings shall be stored for as long as necessary for the regular exercise of rights, including from the CAM-CCBC, and for compliance with a legal obligation, and subsequently shall be subject to anonymization or disposal.
Responsibility of arbitrators – Art. 42 of the 2022 Rules
Under the 2012 Rules, no arbitrator, the CAM-CCBC, nor any person connected with the CAM-CCBC should be held accountable for any acts, facts, or omission related to the arbitration. The 2022
Rules modified the provision to include responsibility in cases of “proven willful misconduct“.
The review of CAM-CCBC Rules is important to align them with relevant international institutions, such as ICC and ICDR, which had also reviewed its rules in the past years.