CAM-CCBC, which is the largest Brazilian arbitral institution, has issued on April 26, 2023 specific rules on “corporate arbitrations”
The New Rules
“Corporate arbitrations” are defined as the ones in which:
(i) the arbitral award can affect not only the parties, but also, on one hand, a corporation, limited company or association and, on the other hand, its respective shareholders, partners or members (as the case may be) and/or their respective administrators (the so-called “Affected Parties”); and
(ii) given the legal nature of the dispute, the decision shall be uniform for all Affected Parties.
CAM-CCBC provided the following examples of corporate arbitration subject to those rules:
(i) the invalidity of a resolution of a shareholders’, partners’ or associates’ meeting or of a meeting of any management board;
(ii) the total or partial termination of a corporation, limited company or association, or the exclusion of a shareholder, partner or associate (as the case may be);
(iii) responsibility of the controlling shareholder or partner, or of the manager vis-à-vis the legal entity and its other shareholders, partners or associates (as the case may be); or
(iv) responsibility of a shareholder, partner or associate for abuse of voting rights.
In case of an arbitration that meets the conditions above, the president of CAM-CCBC shall order Claimant to notify all Affected Parties, granting them the opportunity (i) to join the Claimant’s side, (ii) to join the Respondent’s side or (iii) not to be a party. The notice shall contain (i) the request for arbitration; (ii) indication of the parties; (iii) values, assets or rights involved and (iv) the relief sought. The Affected Party willing to formally join the Claimant’s or Respondent’s side will also assume responsibility for costs and fees accordingly, together with the other claimants or respondents.
In case of listed corporations, the Affected Parties shall be notified according to the rules of the Brazilian Securities and Exchange Commission (CVM). In case of other types of legal entities, the notice to the Affected Parties shall be effected in the same manner the shareholder, partner or associate, as the case may be, would be notified of a shareholders’, partners’ or associates’ meeting.
Regardless of whether or not the Affected Parties choose to become a party, all of them shall be bound by the arbitration. The Affected Party that decides not to join the arbitration as a party can request a link with access to all documents to be filed until the end of the proceeding, being bound by any confidentiality covenant applicable to the parties.
The Affected Party can decide to join the arbitration as a party at any moment afterwards, but it shall be then bound by any previous acts, including the appointment of arbitrators, if it has already occurred.
In case of filing of a new claim in connection with a “corporate arbitration”, the president of CAM-CCBC shall suspend the proceeding and order whoever brought such claim to perform a new notice to the Affected Parties. If the new claim is brought between the confirmation of the arbitral tribunal and the signature of the terms of reference, the president of CAM-CCBC has the discretion to order the replacement of the existing arbitral tribunal. The consolidation of a corporate arbitration with other existing or new “corporate arbitration” shall take place according to CAM-CCBC rules.
Conclusion and Key Takeaways
Those new CAM-CCBC rules were enacted in a context where arbitration is the preferable venue for resolving corporate disputes in Brazil, but has been triggering several complex problems due to the need of uniform decisions to all stakeholders. Several issues haunt corporate arbitrations, such as (i) parallel litigation and (ii) production of legal effects on stakeholders that were not the original parties to the proceeding. Those rules try to tackle them, by providing for notice to the legal entity and their respective shareholders, partners or associates, as it is the case, which may join the proceeding. And, depending of the case, parallel arbitrations could be consolidated into a single one.
Nonetheless, this new CAM-CCBC rules are no panacea, especially considering the hurdles of having to appoint arbitrators and handle proceeding in cases involving a great number of parties and stakeholders. In addition, depending on peculiarities such as the stage of the proceeding, who are the parties and the exact relief sought, it may not be possible to consolidate many corporate arbitrations into one, so the risk of parallel litigation with conflicting decisions nonetheless remains.
Trench Rossi Watanabe and Baker McKenzie have executed a strategic cooperation agreement for consulting on foreign law.