Corporate Arbitration Takeover: Brazil’s Largest Arbitral Institute follows the Swiss Arbitration Centre in issuing ‘Corporate Arbitration’ Rules

The CAM-CCBC (Câmara do Comércio Brasil-Canadá), Brazil’s largest arbitral institution, has followed the Swiss Arbitration Centre’s lead by introducing its own set of rules specifically tailored for resolving corporate law disputes. These rules, known as the Corporate Arbitration Rules (Regulamento de Arbitragem Societária), offer an efficient and specialized procedure for companies that choose to settle their corporate law disputes through arbitration under the auspices of the CAM-CCBC.

Inspired by the innovative “Supplemental Swiss Rules for Corporate Law Disputes” implemented by the Swiss Arbitration Centre on 1st January 2023, the CAM-CCBC took a similar approach by issuing Supplementary Rules no. 02/2023 (Norma Complementar 02/2023) on 26th April 2023. These supplementary rules complement the existing CAM-CCBC Arbitration Rules and specifically apply to corporate law disputes where the arbitration award has the potential to impact third parties involved in the arbitration process.

The Brazilian institution is now well-equipped to effectively handle future corporate law disputes that involve multiple parties with shared interests and are submitted to arbitration proceedings governed by its rules. This development has been long-awaited, especially considering the vast majority of limited liability companies by shares in Brazil that include arbitration clauses in their by-laws, in addition to the listed companies which have shareholders’ agreements that contain arbitration clauses. In 2022, the CAM-CCBC observed that 45% of the disputes submitted for arbitration under its rules involved shareholders’ agreements and share purchase agreements.

The Corporate Arbitration Rules, referred to as the “Corporate Rules,” will be applicable to any arbitration initiated on or after 26th April 2023, provided there is a statutory arbitration clause in a company’s articles of association or by-laws designating the CAM-CCBC rules as the governing framework for arbitration.

DEFINITIONS AND APPLICATION

(All articles of the Corporate Rules referenced here have been machine translated into the English language for ease of interpretation)

Pursuant to Article 1 of the Corporate Rules, ‘corporate arbitrations’ are defined as the ones in which:

“(a) the arbitral award is able to affect not only those who are part of the court requesting arbitration or who have been included in the court requested in the Request for Arbitration, but also the legal sphere of a corporation, limited liability company or association and , simultaneously, of partners, associates or shareholders holding securities of the class or type directly subject to the effects of the arbitration decision, and/or the managers also subject to it (“Affected Third Parties”)”

And further:

“(b) the nature of the disputed legal relationship subject to arbitration requires a uniform decision for all Affected Third Parties”

Examples of instances in which the Corporate Rules would apply are discussed under Article 2 and include:

“(a) invalidity of assemblies or meetings or partners, shareholders, associates or their respective administrative bodies, as well as invalidity of any resolutions taken at such assemblies or meetings; or

(b) total or partial dissolution, withdrawal or exclusion of partners, shareholders or associates, assessment of assets; or

(c) the liability of the controlling shareholder or partner, or of the manager vis-à-vis the legal entity and its other shareholders, partners or associates; or

(d) the liability of shareholders, partners or associates, for the abusive exercise of voting rights.”

Hence, the conditions for the application of the Corporate Rules are:

The arbitral award may not only affect the Claimant and Respondent, but also the legal entity as a whole, or its shareholders and/or directors; these are referred to as “Affected Third Parties”.

The nature of the dispute requires a uniform decision for all Affected Third Parties.

The by-laws or articles of association of the legal entity include a clause by which the parties agree that the arbitration dispute will be administered by the CAM-CCBC and governed by the CAM-CCBC Arbitration Rules, under Article 1 of the same.

Notably, in accordance with Article 1 of the Corporate Rules, for the Corporate Rules to apply there is no need to explicitly reference them as long as the arbitration clause itself references the CAM-CCBC Arbitration Rules.

Although the Corporate Rules only refer to three types of entities – limited liability companies by shares, limited liability companies, and partnerships – Article 3 of the Corporate Rules grants exclusive jurisdiction to the President of the CAM-CCBC to decide on the application of the Corporate Rules, ex officio or at the request of the parties.

AFFECTED THIRD PARTIES

Akin to joindering a party, as per Article 4 of the Corporate Rules, the Affected Third Parties are notified of the commencement of the proceedings, however, they are bound by the arbitral award regardless of whether they participate in the proceedings.

“In the same act or after requesting information about the Affected Third Parties from the parties, the President of the CAM-CCBC will determine the notification of all the Affected Third Parties (“Notification of the Affected Third Parties”), so that they participate in the arbitration, if they so wish, being all notified subject to the effects of arbitration decisions, regardless of their effective participation.”

The Claimant(s) must notify the Affected Third Parties using a model notice prepared by the CAM-CCBC Secretariat, with the notice containing the following information in accordance with paragraph 1 of Article 4 of the Corporate Rules:

“(a) name of the parties;

(b) the amount/assets/rights in dispute;

The purpose of the notification is to maintain fair and equitable proceeding for all parties involved, including the Affected Third Parties. As per Article 7 of the Corporate Rules, upon receipt of the notice of arbitration, the Affected Third Parties will have thirty (30) days to respond and may request (i) to join the Claimant(s) and adhere to the relief sought, (ii) to join the Respondent(s) and object to the relief sought, or (iii) to join the arbitration as a non-party.

Paragraph 1 of Article 7 of the Corporate Rules provides that, upon the completion of the thirty (30) day notification period, the CAM-CCBC Secretariat will grant an opportunity to the Respondent(s) to submit an Answer to the Request for Arbitration.

Affected Third Parties possess the right to join the proceedings at a later stage, as per Article 10, however they will be subject to the dispute as is, including the choice of arbitrators, if already made.

And as per Article 11, the Affected Third Parties that join the proceedings at a later stage, may request the CAM-CCBC Secretariat to provide them with a personal and non-transferable link to access the entirety of all submissions made by the parties in the dispute.

CONCLUSION

In conclusion, the CAM-CCBC Corporate Arbitration Rules, parallel to the Swiss Arbitration Centre’s Corporate Arbitration Rules, demonstrate a commitment to addressing corporate law disputes through specialized procedures tailored to the unique nature of these disputes. Both sets of rules recognize the potential impact on third parties and emphasize the importance of efficiency in resolving such disputes. While they share similarities in purpose and approach, there are notable differences in jurisdiction, legal framework, and applicability.

The future of corporate law disputes is increasingly being shaped by specialized rules and procedures tailored to the unique needs of such disputes. The emergence of institutions like the CAM-CCBC and the Swiss Arbitration Centre issuing dedicated Corporate Arbitration Rules signifies the recognition of the distinct nature of corporate law disputes and the importance of providing efficient and effective means of resolution.

Furthermore, the introduction of supplementary rules specifically addressing the impact on third parties involved in corporate law disputes demonstrates a commitment to fairness and accountability in the arbitration process. The consideration of these third-party interests is crucial for maintaining transparency and safeguarding the integrity of the resolution process.

As the legal landscape evolves, it is likely that more jurisdictions and arbitral institutions will follow suit, introducing their own specialized rules and procedures to cater to the intricacies of corporate law disputes.