This article was featured in Jus Mundi‘s 2023 Arbitration Year in Review, in collaboration with VYAPs, a yearly collection of articles from jurisdictions all around the globe updating you on arbitration-related developments from the previous year.
THE AUTHORS:
Luiza de Sousa Braz, Associate at Lefosse Advogados
Maria Luiza Mayr Maia, Associate at Lauro Gama Advogados
Rafaella Farias Pereira, Associate at DLA Piper Weiss-Tessbach
This article provides an overview of the arbitration highlights in Brazil in 2023, another extremely relevant eventful year for arbitration in the country. More specifically, this article:
- Considers statistics disclosed in 2023 by some of the leading arbitration institutions in the country;
- Covers recent legislative and judicial initiatives regarding the arbitrators’ duty of disclosure;
- Examines a bill that may impact arbitration of corporate disputes; and
- Takes note of a decision handed down by the Brazilian Superior Court of Justice that changed the relationship between insurance companies and arbitration.
Arbitration in Brazil in Numbers
In last year’s review, striking developments in the arbitration field in Brazil were featured. In 2023, the results of this analysis are even more impressive: according to the information released by the Center for Arbitration and Mediation Brazil-Canada (“CAM-CCBC”), in 2022, more than 115 new cases were registered, which led the CAM-CCBC to achieve the landmark figure of 1,427 administered arbitration (against the 1,311 registered between 2020 and 2021). The positive trend continues further. While, in 2021, the total amount in dispute was BRL 7.3 billion, in 2022 it reached BRL 7.9 billion. A similar increase was recorded with respect to the average amount in dispute: in 2021, BRL 57.1 million, while in 2022, BRL 68.8 million (i.e., an increase of over BRL 10 million per case on average).
The statistics released by the Market Chamber (“CAMB3”) reflect a very similar scenario: in 2022, the number of requests for arbitration filed with the institution was almost 50% higher than the previous year. In addition, the average amount in dispute jumped from BRL 36 billion to BRL 44 billion in just one year.
Brazil’s rise and consolidation in the arbitration field is not only due to the well-known advantages of the dispute resolution mechanism but also to its harmonious relationship with Brazilian national court. In 2023, a survey carried out by the Brazilian Arbitration Committee (“CBAr”) and the Brazilian Association of Jurimetry (“ABJ”) identified that the probability of an arbitral award being set aside by the national courts in São Paulo, the Brazilian state with the most arbitrations in the country, is extremely low – about 1.5%.
These indicators clearly show prosperity of arbitration seated in Brazil and give a glimpse of future growth. It is no coincidence that the projection that Brazil will become one of the leading countries in the field of arbitration appears to be increasingly coming true.
Arbitrators’ Duty to Disclose on the Spotlight
As also reported in the 2022 review, Bill No. 3,923/21 is currently pending in the Brazilian Congress, which proposes amendments to the Brazilian Arbitration Act to modify the standard for the arbitrators’ duty of disclosure. The so-called “anti-arbitration bill” aims to impose on arbitrators a duty to disclose any facts that could raise the “slightest doubt” on their impartiality and independence, thus departing from the “justifiable doubt” standard and international best practice.
While the arbitration community’s advocacy against the bill have slowed down the pace of the legislative procedure, the duty to disclose has moved into the spotlight of the judicial arena in 2023.
In March 2023, a Brazilian political party brought a constitutional action before the Brazilian Supreme Court (“STF”), seeking a “constitutional interpretation” of the arbitrator’s duty to disclose in commercial arbitrations (União Brasil v. Presidente da República and Congresso Nacional). The plaintiff requested the Supreme Court to declare that:
- The duty to disclose is an exclusive burden for the arbitrators, and parties bear no duty to investigate;
- “Justifiable doubt” must be assessed through the eyes of the parties rather than those of a third party;
- Failure to disclose is sufficient to disqualify an arbitrator, even if the undisclosed fact would not amount to a breach of impartiality;
- The IBA Guidelines on Conflict of Interest in International Arbitration (2014) cannot guide the duty to disclose unless expressly agreed upon by the parties; and
- The arbitrator’s lack of independence or impartiality is a matter of public policy, not limited by the doctrine of estoppel or limitation periods.
Also this year, the Brazilian Superior Court of Justice (“STJ”) decided on a special appeal against a decision held by the São Paulo Court of Appeals related to the violation of the duty to disclose (Raphael and Brandão & Valga v. Esho). The ruling dismissed an application to set aside an arbitral award due to undisclosed information that would entail the disqualification of an arbitrator. The majority decision established that parties have an ethical duty to investigate potential grounds for disqualification and raise them before the commencement of the arbitration. Upon receiving the special appeal, the rapporteur issued an interim measure to halt all enforcement proceedings related to the arbitral award, considering that there was a dissenting opinion advocating for the award’s annulment.
As Brazil’s higher courts have yet to rule on the issue, academics, practitioners, and prominent civil associations opposed judicial interference to define the contours of the duty to disclose. To assist in addressing issues related to the duty to disclose, the CBAr launched in September 2023 guidelines on this matter. These guidelines, developed with contributions from institutions, professionals, and the public society, are tailored to the Brazilian context and align with international standards. Its final version quickly garnered support from major arbitral institutions (see here), highlighting its practical applicability as a “best practice” reference that, while not mandatory, can be expressly adopted by parties and arbitrators.
Yet, this chapter is far from over. Further developments are likely to take place in 2024, as this remains a developing area within the Brazilian arbitration community.
Collective in Arbitration of Corporate Disputes in the Horizon
In June 2023, the Brazilian Ministry of Finance submitted Bill No. 2,925/2023 (“PL 2925/23”) to the Brazilian Congress to modernize corporate governance standards in the capital markets. The bill sparked debates, especially regarding the arbitration of corporate disputes, introducing the possibility of “collective arbitration”.
PL 2925/23 proposes allowing minority shareholders in Brazilian public limited companies (sociedades anônimas) to collectively file civil liability actions against controlling shareholders or decision-makers to protect their “individual homogeneous rights”. This addresses the arbitrability of minority shareholders’ collective rights in Brazil.
The bill emphasizes increased transparency in arbitration proceedings and would require arbitral institutions to publish awards in those shareholders’ disputes organized by subject. However, exceptions may apply, with the Securities and Exchange Commission of Brazil (CVM) intervening to protect commercially sensitive information. A corporate malpractice case prompted the reform proposal by one of Brazil’s major retailers, highlighting information asymmetry issues. Greater accountability in the regulation of Brazil’s capital markets was thus called for.
PL 2925/23 aims to enhance private enforcement mechanisms by lowering the threshold for minority shareholders to bring civil liability actions against directors, officers, controlling shareholders, or intermediaries of public offerings, among others, for breach of fiduciary duties, including negligence, fraud, or other unlawful acts. The threshold would go from 5% to 2.5% of the company’s capital, provided they were shareholders at the time of the damage and have the same class of shares, or their total shareholding is at least BRL 50 million (approximately USD 10.3 million in January 2024). The CVM could adjust this figure in exceptional cases.
This adjustment raises concerns about shareholders’ legitimacy and potential res judicata effects, as decisions would benefit all shareholders in the same category, except those filing individual lawsuits.
The bill’s proponents believe it will deter abusive misconduct by controlling shareholders and officers. However, there is a trade-off, exposing these actors to potential abuse of minority shareholdings.
Currently, PL 2925/23 awaits an order from the President of Congress to be included in the plenary session agenda following a failed attempt to prioritize the bill.
Arbitration, Risk Analysis, and Insurance Relations: New Connections
Last but not least, in 2023, the STJ handed down a decision in which it ruled that insurers are bound by the arbitration clause in the contract insured by the policy. According to the ruling rendered in the Special Appeal (“REsp”) n. 1.988.894, in such cases, the insurer’s knowledge of the arbitration clause is assumed, and the arbitration clause is deemed an element to be taken into account in the insurer’s risk assessment under the terms of article 757 of the Brazilian Civil Code.
The conclusion is not unrestricted and specifically covers guarantee insurance cases in which it is impossible to rule out the insurer’s prior knowledge of the existence of an arbitration clause in the maritime cargo transportation contract covered by the policy. In this scenario, since the contract was undoubtedly submitted to the insurance company, it had the opportunity to analyze the risks established thereunder, including the arbitration clause – which is, as stated by the STJ, one of the essential elements of the transaction and, therefore, cannot be ignored.
ABOUT THE AUTHORS:
Luiza de Sousa Braz is a Master’s student at the University of São Paulo and a junior Associate at Lefosse Advogados. She practices both domestic and international arbitration and is a member of BRVYAP’s Executive Committee.
Maria Luiza Mayr Maia is a Master’s student at the State University of Rio de Janeiro and an Associate at Lauro Gama Advogados. She acts as secretary to arbitral tribunals in both domestic and international arbitration and is a member of BRVYAP’s Executive Committee.
Rafaella Farias Pereira is a Brazilian law and French law trained, and Brazilian-qualified lawyer. She currently focuses on commercial and corporate disputes, and practices domestic and international arbitration with DLA Piper Weiss-Tessbach in Austria. Rafaella completed her LL.M in Comparative and International Dispute Resolution at the Queen Mary University of London, and her postgraduate degree in Contract Law at FGV Law SP. She is a member of BRVYAP’s Executive Committee.
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