THE AUTHOR:
Bruno Sant’Anna Fucci, Associate at Fonseca e Salles Lima Advogados
About the Conference
Between September 13 and 15, the 22nd International Arbitration Congress of the Brazilian Arbitration Committee (‘CBAr’) was held at the Grand Hyatt Hotel in Rio de Janeiro to discuss ‘arbitration and commercial contracts’.
Year after year, CBAr’s Congress has been surpassing the numbers of its previous editions, with this year’s conference hosting a record number of attendees – nearly 650 participants, 39 speakers, and 82 sponsors – and solidifying its recognized and well-earned position at the forefront of the arbitration landscape.
First Day Insights: Examining the Influence of CISG, UNIDROIT Principles, and CBAr’s Initiatives on Business Contracts
On the first day, before the official opening, the activities kicked off with the traditional Young Event (‘Evento Jovem’), centered on the analysis of the United Nations Convention on Contracts for the International Sale of Goods (‘CISG’) in Brazil and its special relevance to business contracts. The panel was another recent initiative of CBAr’s ongoing endeavors to assess and discuss the adherence of CISG in the Brazilian legal framework (since its ratification in October 2014).
Aside from that, it is worth mentioning the 2016 Report ‘CISG and the Brazilian Judiciary’ and the CBAr study group on CISG, which produced an important collection of books in partnership with Almedina Publishing. Returning to the first panel, Rafael Branco Xavier took on the role of moderator, introducing the first lecturer, Bernard Potsch, who provided an interesting overview of the numbers from the first eight years of CISG’s enforcement in Brazil and classified the nearly 290 cases on the subject existing today.
Verena Moura Waisberg then explored the most frequent mention of CISG in the national case law (even if indirectly applied), which concerns the duty of the creditor to mitigate damages, and Maria Beatriz Rizzo Delamuta, in conclusion, discussed the relevance of CISG for the qualification of the fundamental breach or, in other words, for the correct delineation, in the context of business contracts, of the boundaries of non-performance.
Following that, Osny da Silva Filho led discussions focusing on the UNIDROIT principles and their significance as soft law instruments in the context of international arbitration. The panel featured presentations by Ana Teresa de Abreu Coutinho Boscolo, who offered an analysis of the importance of the preamble to the UNIDROIT principles as interpretative guidance for business contracts in international arbitrations; Marcel Engholm Cardoso, who examined the applicability of the principles in transnational business arbitrations in various categories of contracts and cases of different natures; and Ana Morales Ramos, who provided an overview of the bases for the application of these principles as a source of law and then presented cases, including investment arbitrations, in which the principles were applied.
Further on, the formal opening of CBAr’s Congress took place with a speech by its President, André Albuquerque Abbud, preceded by a beautiful musical performance by the young talents of the ‘Camerata Laranjeiras’. Emphasizing the importance of a strong interface between arbitration and business contracts, André announced the launch of CBAr’s Guidelines on the Duty of Disclosure (‘Diretrizes do CBAr sobre o dever de revelação do(a) árbitro(a)’), defining them as a concentrated set of recommendations aimed at standardizing the conduct of legal practitioners regarding the exercise of the duty of disclosure – based on the law and on shared doctrines, practices, and concepts of the international community.
It is noteworthy that this text, the outcome of a nine-month task force effort and contributions from stakeholders garnered through public consultation, promptly gained the support of significant domestic arbitral institutions, including CAM-CCBC, CIESP-FIESP, and CAMARB. This underscores the effectiveness of this collaborative enhancement tool and the arbitration sector’s capacity for self-regulation [1].
During her keynote presentation, Judith Martins-Costa delved into the pivotal role of the arbitrator in fortifying business contracts. Martins-Costa emphasized that the arbitrator serves as the linchpin of the entire process, wielding decisive influence not only over the resolution of disputes but also, on a broader scale, for the strengthening of business contracts. In her words, the arbitrator’s contribution extends, as she aptly put it, to the realm of ‘freely agreed-upon future projects’ between contracting parties.
Second Day Perspectives: Hermeneutics, Variations, and Arbitrability in Business Contracts
Following the topic of the opening lecture, the second day of the Congress began with a panel focused on discussing business contracts and the role of the arbitrator, with a special emphasis on the hermeneutical work of the arbitrator when handling business contracts. Moderated by Cristiano Zanetti.
The panel featured Mark Friedman, who analyzed the desirable characteristics of an arbitrator when dealing with business contracts (both from the perspective of expertise in the substantive and procedural law); Franco Ferrari, who presented criteria for contractual interpretation from a comparative perspective, focusing mainly on the importance of the applicable law and the relevant differentiations to be made by arbitrators according to it; and Giuditta Cordero-Moss, who, participating via video, presented the audience with the results of empirical research with arbitrators showing their different approaches regarding contractual interpretation.
The second panel of the day investigated specific characteristics of business contracts and sought to analyze how their variations can modify and condition the arbitral process. With Marcelo Trindade as the moderator, Luke Sobota discussed business contracts related to various dispute resolution clauses; Mariana Pargendler addressed the piercing of the corporate veil in arbitration proceedings; and Philippe Pinsolle discussed impecuniosity in disputes involving commercial contracts.
After the lunch break, the third panel of the day focused on issues and incidents related to the arbitrability of disputes arising from business contracts. Carmen Tibúrcio moderated the proceedings, which were set in motion by Luis Renato Ferreira da Silva, discussing adhesion contracts with economic dependency (franchising, representation, among others). In turn, Daniela Monteiro Gabbay examined competition law and arbitrability, while Dominique Brown-Berset assessed the arbitrability of environmental repercussions of commercial contracts.
Finally, the last seminar of the afternoon adopted, as has been the case in recent editions, the interesting format of simultaneous roundtables, allowing for greater interaction among participants and in-depth discussions. Focusing on debating issues surrounding the arbitrability of various contractual objects (from different economic sectors), participants with a keener interest in public law were able to join, under the moderation of Leonardo de Faria Beraldo, a symposium exclusively dedicated to arbitrations in regulated sectors, addressing business contracts typically entered into in the oil and gas sector (discussions led by Érica Franzetti and Michael Polkinghorne) and in the electric industry (under the guidance of Alexandre Santos de Aragão and Floriano Peixoto de Azevedo Marques Neto).
Meanwhile, participants with a particular focus on private law were afforded the chance to partake in dialogues, facilitated by Soraya Nunes, concerning commercial contracts and sectoral arbitrations, exploring both arbitrations related to agribusiness (supervised by Thiago Marinho Nunes and Letícia Baddauy) and those linked to sports law (under the guidance of Vitor Butruce and Daniel Cravo Souza).
Balancing Acts: Exploring Arbitration and Contractual Imbalance in the Culminating Day of CBAr’s Conference
The third and final day of the proceedings began with a panel focused on the relationship between arbitration and contractual imbalance. Moderated by Rodrigo Garcia da Fonseca, the lecture featured presentations by Mariana França Gouveia, who discussed the concepts of impossibility and supervening imbalance in recent experiences (in light of events such as the Covid-19 pandemic, the Ukraine War, sharp fluctuations in the IGP-M index, etc.), always providing an interesting comparative overview between Brazilian law, Portuguese law, and other legal systems; Christoph Brunner, who addressed the duty of renegotiation in transnational commercial contracts; and Giovanni Ettore Nanni, who shared his insights on the challenging issue of arbitrator intervention in business contracts in light of the recent Economic Freedom Act (Law No. 13.874/2019).
To conclude the Congress, economist Gustavo Franco engaged in an open and informal conversation with Mauricio Almeida Prado, focusing on the topic of dispute resolution in a context of instability. Drawing from his experience, Franco expressed concern about hasty interventions by third parties – arbitrators and judges – in commercial contractual relationships (and their underlying commercial terms).
The former President of the Brazilian Central Bank urged the audience – mostly made up of lawyers – to observe, with increased caution, the strict legal criteria for contractual review, as mandated by the law. Shedding light on economic concepts (often insufficiently familiar to practitioners of the field), Franco extensively discussed the interplay between economic stability and legal security and, for the achievement of the latter, the challenging task of understanding the defining criteria of ‘economic normality’.
As the program drew to a close, attendees could renew their confidence, among numerous other academic initiatives orchestrated by CBAr, in the Annual Congress, proving once again to be a key forum to the ongoing mission of enhancing arbitration in Brazil. With that, the official countdown to the 23rd Edition of the Congress, scheduled to take place in Brasília in 2024, has already begun!
ABOUT THE AUTHOR
Bruno Sant’Anna Fucci is an associate at Fonseca e Salles Lima Advogados. Practicing as an attorney in judicial litigation and arbitration disputes, he has experience as an administrative secretary for arbitral tribunals under the rules of various institutions (ICC, CAM-CCBC, CIESP-FIESP, CAMARB, CAM-B3, FGV, CBMA, AMCHAM). He is fluent in Portuguese, English, and Spanish and has a good knowledge of Italian.
[1] Two commendable initiatives highlighted in the opening speech deserve special mention: the ‘Linhas Conscientes’ project, maintained in partnership with the ‘Yandê Institute’, which focuses on training women in sewing through a sustainable workshop in Itacaré, Bahia, and was responsible for producing the bags gifted to congress attendees; and the ‘Black Sisters in Law’, aimed at connecting and promoting Black women in the legal market.
