The movement to include arbitration clauses in contracts has also been observed in investment funds. The topics were discussed during the XI Congress of Arbitration of CAM-CCBC and the 17th Biennial IFCAI Conference.
By Silvia Pimentel
The number of airport concession contracts with arbitration clauses is growing in Brazil. In 2023, of the 19 existing contracts, 17 provided for the possibility of disputes between the parties in the concession contracts to be resolved by arbitration. The increasing interest in alternative methods for conflict resolution in this sector gained momentum starting in 2019 and even extends to older contracts.
According to Tiago Souza Pereira, the president of ANAC (National Civil Aviation Agency), from 2020 to 2023, seven concessionaires that did not have an arbitration clause in their contracts voluntarily signed an amendment to include the use of the method in cases of disputes between the parties. The complexity of the contracts and the amounts involved, along with the advancement of concessions in Brazil, partly explain the interest in using arbitration.
“The inclusion of arbitration clauses also stimulates more robust and informed decisions in the administrative sphere, as they can be used in any eventual arbitration procedure,” Pereira stated during one of the panels at the XI Congress of Arbitration of CAM-CCBC (Center for Arbitration and Mediation of the Brazil-Canada Chamber of Commerce) and the 17th Biennial IFCAI Conference (International Federation of Commercial Arbitration Institutions), held in São Paulo.
Investment Funds: Change of Understanding
In addition to discussing the paths of arbitration in airport concessions and how the use of the method can contribute to dispute resolution, the event opened space for an in-depth discussion on conflicts involving investment funds and the new rules in the sector, which have imposed more responsibilities on managers.
One of the participants in the panel discussing the peculiarities of these funds, Marina Copola, director of the Securities and Exchange Commission (CVM), explained that Resolution 175 from the institution was established to consolidate the previously scattered rules of the sector and more clearly distinguish the role of the fund administrators from that of asset managers, who have now been considered essential service providers.
In Copola’s view, the delineation of the roles of administrators and managers requires the attention of various actors involved in the investment fund industry. “Be prepared for the changes in understanding that will come ahead,” she warned.
She emphasized the importance of investment funds in the national territory as gateways for investors in Brazil’s capital markets. According to her, the trend is for funds to become increasingly relevant and specialized, paving the way for disputes to be resolved more frequently through arbitration. “The process is faster, and the decisions tend to be of better quality due to the expertise of the arbitrators,” she highlighted.
She added that disputes in the sector remain significant in number. Just last month, there were 180 administrative processes underway at the CVM, many of them related to gaps in the regulatory structure. “With the new resolution, we expect a reduction in the number of conflicts,” she said.
The Congress
The XI Congress of CAM-CCBC was attended by around 600 participants, including arbitration professionals, lawyers, and arbitrators, and was led by national and international experts who took turns in various panels to discuss the future of arbitration. The event was part of the 7th edition of São Paulo Arbitration Week (SPAW), an international arbitration week in São Paulo that attracts some of the biggest names in international arbitration and confirms São Paulo as a global capital for discussions on commercial conflict resolution.
Among the topics addressed during the two days of the event were the use of artificial intelligence and its impacts on arbitration, the economic and financial balance of contracts, evidence production in arbitration, the impact of media on commercial arbitration, and the duty of arbitrators to disclose relevant facts.
The event featured CAM-CCBC President Rodrigo Garcia da Fonseca, Vice Presidents Silvia Rodrigues Pachikoski and Ricardo de Carvalho Aprigliano, as well as international experts Stefan Kröll, President of the German Arbitration Institute (DIS), professor at Bucerius Law School and director of the Willem C. Vis Arbitration Moot Court; Ismail Selim, President of IFCAI and director of the Cairo Regional Centre for International Commercial Arbitration (CRCICA); Carlos Forbes, member of the International Council for Commercial Arbitration (ICCA); and Edna Sussman, an independent arbitrator and mediator.
