THE AUTHOR:
Gabriela de Oliveira Fernandes, Lawyer at Toledo Marchetti Advogados
During the São Paulo Arbitration Week 2025, the law firm Toledo Marchetti Advogados hosted the event “What In-House Counsels Need to Know About Conducting Arbitration”, organized in partnership with Clube de Arbitralistas Lusófonos (“CAL”) and with the support of Jus Mundi.
Moderated by Lara Fernanda Yokota (Toledo Marchetti Advogados), the panel brought together Fernando Magno (BTG Pactual), Paulo Mendes (Teixeira Duarte), and Renata Coutinho (EDP Brasil), who shared practical insights on the role of the in-house counsel in different stages of the arbitration, from contract negotiation to post-award management. Opening remarks were delivered by Ana Gerdau de Borja Mercereau (Citadelle Disputes) and Adriana Sarra (Toledo Marchetti Advogados), and closing remarks were given by Mateus Zottarelli (Toledo Marchetti Advogados).
The discussion shifted the traditional perspective on arbitration: rather than focusing on arbitrators or external law firms, the conversation focused on those inside the company, facing the real challenges of decision-making. The panelists explored what drives the choice of arbitration, how in-house counsels can prepare for and contribute to the arbitration proceedings, and how lessons learned can strengthen corporate governance and improve future contracts.
What Drives the Choice of Arbitration
From the outset, a panelist observed that choosing between arbitration and court litigation is not a mere contractual formality but a strategic decision involving legal, technical, and financial considerations. In complex transactions such as M&A and EPC contracts, arbitration is often regarded as a more suitable forum, offering confidentiality, predictability, and specialized expertise. According to the panelists, the choice largely reflects risk management and institutional coherence, selecting the forum that best aligns with the nature of the transaction and the company’s operational profile.
During the contractual negotiation phase, the in-house counsel plays a decisive role. A panelist stressed the importance of carefully drafting the arbitration agreement, noting that even when bargaining power is limited, the in-house counsel must identify key safeguards such as the seat, the language, the arbitral institution, and the governing law. They also emphasized the value of multi-tiered dispute resolution mechanisms, including dispute boards, which can prevent conflicts from escalating into arbitration.
The discussion also addressed the pursuit of procedural efficiency by the in-house counsel. According to a panelist, while single-arbitrator proceedings or expedited arbitration can be useful in certain cases, they must be adhered to cautiously. The balance between speed and evidentiary depth should always be maintained, ensuring that efficiency measures are aligned with the circumstances of each case. Efficiency, as highlighted by a panelist, should not be measured solely by the duration of the proceedings but also by the arbitral tribunal’s ability to deliver a technically sound and legally robust decision.
How In-house Counsels Can Prepare for and Contribute to the Arbitration Proceedings
When a dispute becomes unavoidable, internal preparation is key. A panelist noted that the in-house counsel must first define the objectives of the arbitration, e.g., to preserve the relationship, reorganize a contractual relationship, or simply preserve the company’s rights. Once this objective is clear, the next step is to structure the litigation team, carefully selecting an external counsel and technical experts, and ensuring consistent communication with technical departments and management.
The recurring theme was the importance of document management: maintaining well-organized records, correspondence, and reconstructing the facts of the case is essential to sustain the company’s narrative and avoid evidence gaps over time.
In arbitrations governed by foreign law or conducted under common law procedures, additional caution is required. A panelist observed that cultural and procedural differences, particularly regarding witness examination, demand early planning and practitioners familiar with the applicable system. This reinforced a key insight from the discussion: the individual experience of the lawyer handling the case matters more than the reputation of the law firm. Industry knowledge and hands-on expertise are crucial.
When it comes to the selection of arbitrators, a panelist highlighted that the decision should weigh not only reputation but also technical background, demeanor, and prior experience of the candidate. Naturally, transparency in conflict checks was also identified as a decisive factor in choosing arbitrators.
A panelist also addressed the in-house counsel’s role in ensuring the flow of information during arbitration proceedings. Much alike project managers, in-house counsels are the bridge between the external law firm, internal stakeholders, and senior management. In this sense, translating legal developments into business terms is essential to maintaining alignment and trust. Furthermore, ongoing communication, rather than last-minute updates, was cited as the best way to prevent surprises and manage expectations regarding the result of arbitration proceedings.
How Lessons Learned Can Strengthen Corporate Governance and Improve Future Contracts
Once the arbitration concludes, the process of institutional learning begins. The panel underscored that each dispute offers a valuable opportunity to refine internal practices. Reviewing standard clauses, adjusting risk policies, and sharing lessons learned can strengthen the company’s position in future dealings. In this sense, a critical evaluation of the outcome of arbitration, even in the case of defeat, helps the company mature legally and reduce future exposure.
Another key point was the communication of the award to senior management. The panelists advocated for a transparent and continued approach: the in-house counsel should explain the implications of the decision clearly, highlighting financial, regulatory, and reputational effects. This exchange, however, should not be limited to the end of the arbitration, as regular briefings and progress reports help leadership make informed, timely decisions.
Toward the end of the session, dispute boards emerged as a focal point. Despite lingering resistance, particularly among owners in construction and infrastructure contracts, these committees are gaining traction as practical tools for proactive conflict management. Their continuous involvement during contract execution enables early resolution of technical issues, safeguarding relationships, and minimizing costs. They were aptly compared to a “marriage counselor” for complex contracts, a metaphor that reflects a cultural shift toward dialogue and away from litigation.
Conclusion
The discussion made clear that in-house counsels are at the heart of every stage of the dispute-resolution cycle. Their role begins long before a notice of arbitration is filed, in the negotiation of clear and balanced clauses, in the implementation of dispute boards that promote dialogue, and in the day-to-day management of information and risks. Once arbitration is underway, they act as strategic coordinators, ensuring alignment between external counsel, technical teams, and business leaders, and translating legal complexity into actionable business guidance.
Beyond the outcome of a single case, arbitration can serve as a platform for institutional growth. By analyzing each proceeding with a critical eye, incorporating lessons learned, and refining corporate practices, companies can transform litigation experience into governance strength. The panelists agreed that this capacity to learn from disputes, rather than merely endure them, is what distinguishes organizations with mature legal frameworks.
Ultimately, arbitration and its preventive mechanisms are most effective when integrated into a broader culture of legal strategy, transparency, and continuous improvement. In-house counsel, standing at the intersection of law and business, are uniquely positioned to make this integration possible. By fostering communication, efficiency, and foresight, they transform arbitration from a reactive tool into a proactive instrument of stability, trust, and long-term value creation.
ABOUT THE AUTHOR
Gabriela de Oliveira Fernandes is a lawyer at Toledo Marchetti Advogados.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
