Thiago Marinho Nunes, FCIArb
PhD in International and Comparative Law from the University of São Paulo Law School; Master in Litigation, Arbitration and Alternative Dispute Resolution from the University of Paris II – Panthéon-Assas; Vice-President of CAMARB; Fellow of the Chartered Institute of Arbitrators; Professor at the Arbitration Research Center of IBMEC-SP; Independent arbitrator.
September 23rd, 2021 will be the twenty-fifth anniversary of the enactment of the Brazilian Arbitration Act (“BAA”)[1]. Since its enactment, arbitration has slowly, but surely advanced in Brazil, having been used more frequently after the Supreme Court of Brazil (“STF”) declared its constitutionality in 2001. Furthermore, on the following year, Brazil ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10th, 1958[2], which definitively placed Brazil in the context of international commercial arbitration, ensuring credibility and reliability of the institute before the foreign public[3].
The Brazilian arbitration practice has been under consolidation for some time now, having expanded to all regions of Brazil. Numerous theses, manuals, academic articles and projects, and courses have emerged (and are emerging) demonstrating that the practice of arbitration in Brazil is constantly growing. This success is due not only to the legislator (who presented a modern bill based on diplomas of significant importance, such as the Spanish Arbitration Law[4] and the UNCITRAL Model Law[5]), but because it has evolved over time, aligning itself with former court decisions on important issues, such as the regulation of arbitration involving public entities, the permission to use pre-arbitral measures before the Judiciary, inter alia[6], but also to the entire arbitration community, such as lawyers, in-house counsels and arbitrators acting in this field which, for the most part, understood the “spirit” of arbitration and its peculiarities. A good evidence of this is the minimal rate of annulment of arbitral awards by the Judiciary, as well as the massive pro-arbitration case-law developed in the higher courts, especially of the Federal Superior Court of Justice (“STJ”)[7].
As the arbitration practice in Brazil has expanded, and its players have increased, the comparative study of arbitration developed in other legal systems (and consolidated there for some time) is thought to be of great value to Brazil. Alongside the comparison through legal systems[8], a source of comparison that is worth considering, are the various guidelines created by respected international bodies such as the International Bar Association (“IBA”) and the Chartered Institute of Arbitrators (“CIArb”).
The purpose of this short article is to provide a general introduction to the guidelines created by the CIArb for the successful development of international commercial arbitration, which can be perfectly applied in the domestic field by lawyers, arbitrators, and magistrates.
Established in 1915, the CIArb is an organization that assemble numerous professionals working in the field of alternative dispute resolution (arbitration, mediation, dispute boards, inter alia) around the world, spreading and facilitating the use of such mechanisms[9]. Based in London, it has approximately 16,000 members distributed in 39 branches in 133 countries. Since 2019, it has been represented in Brazil (CIArb Brazil Branch) and, throughout its existence, has published a series of guidelines on consolidated practices in international arbitration that can serve as a useful guide for lawyers, in-house counsels and, arbitrators involved in arbitration proceedings.
The CIArb, to date, has issued 13 (thirteen) guidelines related to arbitration[10], including (a) Interviews for Prospective Arbitrators; (b) Terms of Appointment including Remuneration; (c) Jurisdictional Challenges; (d) Applications for Interim Measures; (e) Security Costs[11]; (f) Managing Arbitrations and Procedural Orders; (g) Party Appointed and Tribunal Appointed Expert Witnesses; (h) Documents Only Arbitration Proceedings; (i) Party Non-Participation; (j) Drafting Arbitral Awards Part I – General, Part II – Interest, and Part III – Costs; (k) Witness Conferencing[12]; and, more recently, a Guidance Note on Remote Dispute Resolution Proceedings[13].
With a widespread acceptance by both the operators of arbitration and by the Judiciary, several of the above-mentioned guidelines have already been applied in the brazilian arbitration practice. Among them, a few of the most important guidelines include the applications for interim measures, security costs, the party non-participation (default), the rules regarding expert evidence (party appointed, and tribunal appointed expert witnesses), and interviews for prospective arbitrators. As much as these guidelines have been issued for use in international arbitration (further, for use in both civil and common law systems), there is no doubt that they are useful and transposed to the domestic arbitration field, not only guaranteeing efficiency in arbitration proceedings, but also in a pedagogical way, by establishing practices that are expected to be implemented by the arbitration players. Accordingly, Julie Bédard and Ricardo Dalmaso Marques, when commenting on the IBA Guidelines on Party Representation in International Arbitration:
“The employment of the term ‘guidelines’ instead of ‘rules’ has precisely the objective of emphasizing the contractual nature of the text, which can be (i) adopted by the parties entirely or only partially and (ii) applied by the arbitral tribunal, after consulting the parties, adapting its provisions to the particular circumstances of each case. As mentioned, the Guidelines do not concern the ethical or professional conduct. Instead, the Guidelines concern the conduct expected by the parties’ representatives in international arbitrations and what should be encouraged on a case-by-case basis as means of managing the proceedings efficiently (Managing Arbitrations and Procedural Orders)”.[14]
While the practice of arbitration increases every year in Brazil, this growth should go alongside with the implementation of the necessary precautions by the arbitration players (i.e. parties, lawyers and arbitrators), based on the ethics and professional conduct expected of the mentioned actors, with the purpose of preserving the integrity of arbitration and its greater purpose: to render an enforceable award through an efficient, fair, but, above all, ethical[15] procedure, the latter, the characterizing element of arbitration[16].
The purpose of the CIArb guidelines, in addition to emphasizing the ethical behavior that must be observed by its players – parties, lawyers, experts, and arbitrators[17] – is to promote uniformity in the practice of arbitration proceedings[18], excelling in predictability, effectiveness, and celerity and that, despite having been elaborated based on international arbitration, not only can they be used, but they are also recommended for domestic arbitration[19], which will certainly improve the Brazilian arbitration system[20].
[1] Federal Law No. 9.307, 23 September 1996.
[2] Decree No. 4.311, 23 July 2002.
[3] See: NUNES, Thiago Marinho. NUNES, Thiago Marinho. A Convenção de Nova Iorque de 10 de Junho de 1958: Alguns Pontos Polêmicos, Revista Brasileira de Arbitragem (Comitê Brasileiro de Arbitragem CBAr & IOB; Comitê Brasileiro de Arbitragem CBAr & IOB 2009, Volume VI Issue 23) pp. 33-53.
[4] Law No. 63/2011, 14 December (updated version).
[5] The UNCITRAL Model Law on International Commercial Arbitration is a model law prepared by UNCITRAL and implemented by the United Nations Commission on International Commercial Law on 21 June 1985 and revisited in 2006. Available at: <https://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-86998_Ebook.pdf>. Accessed on 1 March 2021.
[6] Modifications brought by Federal Law No. 13.129, May 26, 2015. In this regard, see the recent book edited by Migalhas Books: FERREIRA, Olavo A. Alvez & LUCON, Paulo Henrique dos Santos. Arbitragem: 5 anos da Lei nº 13.129, de 26 de maio de 2015”). The mentioned book is available at: <https://www.migalhasbooks.com/product-page/ebook-arbitragem-5-anos-da-lei-n%C2%BA-13-129-de-26-de-maio-de-2015>.
[7] Data that can be checked in research conducted by the Brazilian Arbitration Committee (CBAr) in cooperation with the Brazilian Association of Arbitration Students (ABEArb). Available at: <http://cbar.org.br/site/pesquisa-cbar-abearb-2016/>. Accessed on 1 March 2021.
[8] On the importance of comparative law in arbitration, see FAUVARQUE-COSSON, Bénédicte. Development of Comparative Law in France. In: REIMANN, Mathias; ZIMMERMANN, Reinhard (Ed.). The Oxford Handbook of Comparative Law. Oxford: Oxford University Press, 2008. p. 59-60.
[9] According to Tim Hardy, FCIArb and Elina Zlatansla, FCIArb: “As the first ever learned society in the world to be devoted to the education and training of what is considered to be ‘modern arbitration, CIArb plays a unique role in furthering the profession and in encouraging and facilitating the use of arbitration. It has a longstanding history in promoting best practices in the field and offering guidance through research and scholarly publications”. CIArb Arbitration Practice Guidelines: An Overview, p.3. Available at: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3019022>. Accessed on 1 March 2021.
[10] Available at: <https://www.ciarb.org/resources/guidelines-ethics/international-arbitration?page=1>. Accessed on 1 March 2021.
[11] This specific guideline (Security Costs), was commented on by José Victor Palazzi Zakia, available at: <http://www.cbar.org.br/blog/artigos/security-for-costs-na-arbitragem-da-utilidade-e-da-necessidade-da-medida>. Accessed on 1 March 2021.
[12] This guideline was recently awarded by Global Arbitration Review (GAR) as the “best innovation by an individual or organization”. Source: <https://www.ciarb.org/news/ciarbs-notable-wins-at-this-years-gar-awards/>. Accessed on 1 March 2021.
[13] Available at: <https://ciarb.org/resources/remote-proceedings/>. Accessed on 1 March 2021.
[14] BÉDARD, Julie and MARQUES, Ricardo Dalmaso. The Conduct of Attorneys and Representatives of Parties in General in International Arbitration – The IBA Guidelines for the Representation of Parties in International Arbitrations, in João Bosco Lee and Daniel de Andrade Levy (eds), Revista Brasileira de Arbitragem, (Brazilian Arbitration Committee CBAr & IOB; Kluwer Law International 2017, Volume XIV Issue 53) p. 29.
[15] Ethics in arbitration is detailed by Catherine A. Rogers, especially in the international field, where, according to the author, the need for a “self-regulation” of the system, based on clear and ethical rules, reinforce the credibility of arbitration. As stated originally: “While ‘regulation’ is a term that is generally resisted, self-regulation in international arbitration is a healthy way to preserve existing structures and strengthen the regime. The legitimacy of international arbitration is predicated in substantial part on the integrity and professional conduct of its founders and of its modern custodians – the arbitrators, counsel, experts, and administrators of arbitral institutions who manage and decide the disputes. These participants build and sustain the legal frameworks and procedures on which the legitimacy of international arbitration is founded. Clearer ethical norms and a reliable enforcement regime are essential to that function and have evolved organically in international arbitration”. ROGERS Catherine A. Ethics in International Arbitration. Oxford University Press, 2014, pp. 272.
[16] In this regard, MARÇAL, Juliana. A Ética como Elemento Caracterizador da Arbitragem in Revista de Arbitragem e Mediação, Vol, 62 (jul-set. 2019). São Paulo: Thomson Reuters, pp. 157-165.
[17] For the professionals who act as arbitrators, the CIArb’s performance is highlighted by Catherine A. Rogers: “For arbitrators, specifically, the Chartered Institute of Arbitrator, or ‘CIArb’, has a well- established certification program. The CIArb refers to itself as a ‘Professional Organization for Arbitrators, Mediators and Adjudicators’, and lists having a ‘prestigious secondary professional qualification’ as among the benefits of membership. The CIArb has stringent, published entry requirements, which may include extensive training, passing an examination, and completing an interview. It also has a relatively detailed code of ethics and related practice guidelines that pertain to arbitrator members”. ROGERS Catherine A. Ethics in International Arbitration. Oxford University Press, 2014, pp. 255-256.
[18] Accordingly, see the study conducted by Zharilov, Andri. Conflicts and Ethics in International Arbitration in Arbitration: The International Journal of Arbitration, Mediation and Dispute Management, Vol. 85, Issue 1 (2019) pp. 36-48.
[19] According to Tim Hardy, FCIArb and Elina Elina Zlatansla, FCIArb: “It is important to bear in mind that the Guidelines are designed for international commercial arbitrations although the principles and standards are equally applicable in domestic arbitrations. The Guidelines are not prescriptive and do not contain any legal or professional advice. Rather they contain suggestions and recommendations that can be used to promote consistent decision-making. They shall not be treated as binding upon the parties or the arbitral tribunal and therefore non-compliance shall not be sanctioned or interpreted as a ground for the setting aside of any award”. CIArb Arbitration Practice Guidelines: An Overview, p. 3. Available at: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3019022>. Accessed on 1 March 2021.
[20] The so-called extraneous experiences that are practiced by other populations of the globe can be beneficial for the improvement of the internal system. In this regard, see WISE, Edward M. The Transplant of Legal Patterns. The American Journal of Comparative Law, v. 38, p. 5, 1990.
[1] Federal Law No. 9.307, 23 September 1996.
[2] Decree No. 4.311, 23 July 2002.
[3] See: NUNES, Thiago Marinho. NUNES, Thiago Marinho. A Convenção de Nova Iorque de 10 de Junho de 1958: Alguns Pontos Polêmicos, Revista Brasileira de Arbitragem (Comitê Brasileiro de Arbitragem CBAr & IOB; Comitê Brasileiro de Arbitragem CBAr & IOB 2009, Volume VI Issue 23) pp. 33-53.
[4] Law No. 63/2011, 14 December (updated version).
[5] The UNCITRAL Model Law on International Commercial Arbitration is a model law prepared by UNCITRAL and implemented by the United Nations Commission on International Commercial Law on 21 June 1985 and revisited in 2006. Available at: <https://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-86998_Ebook.pdf>. Accessed on 1 March 2021.
[6] Modifications brought by Federal Law No. 13.129, May 26, 2015. In this regard, see the recent book edited by Migalhas Books: FERREIRA, Olavo A. Alvez & LUCON, Paulo Henrique dos Santos. Arbitragem: 5 anos da Lei nº 13.129, de 26 de maio de 2015”). The mentioned book is available at: <https://www.migalhasbooks.com/product-page/ebook-arbitragem-5-anos-da-lei-n%C2%BA-13-129-de-26-de-maio-de-2015>.
[7] Data that can be checked in research conducted by the Brazilian Arbitration Committee (CBAr) in cooperation with the Brazilian Association of Arbitration Students (ABEArb). Available at: <http://cbar.org.br/site/pesquisa-cbar-abearb-2016/>. Accessed on 1 March 2021.
[8] On the importance of comparative law in arbitration, see FAUVARQUE-COSSON, Bénédicte. Development of Comparative Law in France. In: REIMANN, Mathias; ZIMMERMANN, Reinhard (Ed.). The Oxford Handbook of Comparative Law. Oxford: Oxford University Press, 2008. p. 59-60.
[9] According to Tim Hardy, FCIArb and Elina Zlatansla, FCIArb: “As the first ever learned society in the world to be devoted to the education and training of what is considered to be ‘modern arbitration, CIArb plays a unique role in furthering the profession and in encouraging and facilitating the use of arbitration. It has a longstanding history in promoting best practices in the field and offering guidance through research and scholarly publications”. CIArb Arbitration Practice Guidelines: An Overview, p.3. Available at: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3019022>. Accessed on 1 March 2021.
[10] Available at: <https://www.ciarb.org/resources/guidelines-ethics/international-arbitration?page=1>. Accessed on 1 March 2021.
[11] This specific guideline (Security Costs), was commented on by José Victor Palazzi Zakia, available at: <http://www.cbar.org.br/blog/artigos/security-for-costs-na-arbitragem-da-utilidade-e-da-necessidade-da-medida>. Accessed on 1 March 2021.
[12] This guideline was recently awarded by Global Arbitration Review (GAR) as the “best innovation by an individual or organization”. Source: <https://www.ciarb.org/news/ciarbs-notable-wins-at-this-years-gar-awards/>. Accessed on 1 March 2021.
[13] Available at: <https://ciarb.org/resources/remote-proceedings/>. Accessed on 1 March 2021.
[14] BÉDARD, Julie and MARQUES, Ricardo Dalmaso. The Conduct of Attorneys and Representatives of Parties in General in International Arbitration – The IBA Guidelines for the Representation of Parties in International Arbitrations, in João Bosco Lee and Daniel de Andrade Levy (eds), Revista Brasileira de Arbitragem, (Brazilian Arbitration Committee CBAr & IOB; Kluwer Law International 2017, Volume XIV Issue 53) p. 29.
[15] Ethics in arbitration is detailed by Catherine A. Rogers, especially in the international field, where, according to the author, the need for a “self-regulation” of the system, based on clear and ethical rules, reinforce the credibility of arbitration. As stated originally: “While ‘regulation’ is a term that is generally resisted, self-regulation in international arbitration is a healthy way to preserve existing structures and strengthen the regime. The legitimacy of international arbitration is predicated in substantial part on the integrity and professional conduct of its founders and of its modern custodians – the arbitrators, counsel, experts, and administrators of arbitral institutions who manage and decide the disputes. These participants build and sustain the legal frameworks and procedures on which the legitimacy of international arbitration is founded. Clearer ethical norms and a reliable enforcement regime are essential to that function and have evolved organically in international arbitration”. ROGERS Catherine A. Ethics in International Arbitration. Oxford University Press, 2014, pp. 272.
[16] In this regard, MARÇAL, Juliana. A Ética como Elemento Caracterizador da Arbitragem in Revista de Arbitragem e Mediação, Vol, 62 (jul-set. 2019). São Paulo: Thomson Reuters, pp. 157-165.
[17] For the professionals who act as arbitrators, the CIArb’s performance is highlighted by Catherine A. Rogers: “For arbitrators, specifically, the Chartered Institute of Arbitrator, or ‘CIArb’, has a well- established certification program. The CIArb refers to itself as a ‘Professional Organization for Arbitrators, Mediators and Adjudicators’, and lists having a ‘prestigious secondary professional qualification’ as among the benefits of membership. The CIArb has stringent, published entry requirements, which may include extensive training, passing an examination, and completing an interview. It also has a relatively detailed code of ethics and related practice guidelines that pertain to arbitrator members”. ROGERS Catherine A. Ethics in International Arbitration. Oxford University Press, 2014, pp. 255-256.
[18] Accordingly, see the study conducted by Zharilov, Andri. Conflicts and Ethics in International Arbitration in Arbitration: The International Journal of Arbitration, Mediation and Dispute Management, Vol. 85, Issue 1 (2019) pp. 36-48.
[19] According to Tim Hardy, FCIArb and Elina Elina Zlatansla, FCIArb: “It is important to bear in mind that the Guidelines are designed for international commercial arbitrations although the principles and standards are equally applicable in domestic arbitrations. The Guidelines are not prescriptive and do not contain any legal or professional advice. Rather they contain suggestions and recommendations that can be used to promote consistent decision-making. They shall not be treated as binding upon the parties or the arbitral tribunal and therefore non-compliance shall not be sanctioned or interpreted as a ground for the setting aside of any award”. CIArb Arbitration Practice Guidelines: An Overview, p. 3. Available at: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3019022>. Accessed on 1 March 2021.
[20] The so-called extraneous experiences that are practiced by other populations of the globe can be beneficial for the improvement of the internal system. In this regard, see WISE, Edward M. The Transplant of Legal Patterns. The American Journal of Comparative Law, v. 38, p. 5, 1990.