Experts criticize House bill that changes arbitration law

A project in the Chamber of Deputies that amends the arbitration law has generated criticism among specialists in the field and business entities. The text limits the role of the mediator and determines that the decisions become public.

The Arbitration Law makes it possible to resolve conflicts without the Justice being called, opening a way to unburden the Judiciary. Among the changes, the bill under discussion limits the number of cases in which an arbitrator can act, with a maximum of ten cases at the same time.

In addition, it says that the Arbitration Chamber must publish the composition of the arbitral tribunals and the value of the dispute. Once the negotiation is concluded, the full sentence must be disclosed. To keep the process confidential, the party will have to present a justification.

According to the author of the project, Congresswoman Margarete Coelho (PP-PI), arbitration has established itself as the main means of resolving disputes and social pacification outside the scope of the Judiciary.

What has been noticed in practice, however, is the presence of the same arbitrator in a few dozen cases simultaneously. She also pointed out that there is a market concentration that discourages people from entering arbitrage.

“Today, it is verified that few arbitration institutions require the appointed arbitrator to inform in how many cases he acts in this condition, and this needs to change from the establishment of legal parameters that improve the duty of disclosure, allowing the parties to assess whether the candidate has effective availability to act and dedicate himself to the cause”, said the deputy, in the justification.

The bill is currently in the Constitution and Justice Commission of the Chamber of Deputies, under the rapporteurship of deputy Bia Kicis (PSL-DF). Deputies filed a request for urgency in the consideration of the text.

Gustavo Schmidt, president of the Brazilian Center for Mediation and Arbitration and professor at FGV Direito Rio, said that arbitration generally acts in conflicts of greater economic dimension and technical complexity, such as business and corporate disputes and infrastructure projects. The entire process takes an average of 18 months.

He explains that the law is silent in relation to publicizing the sentence, but Brazil follows international practices that transform arbitration, as a rule, into a confidential process.

“Usually they are complex issues and, as it involves confidential matters, the parties contract confidentiality. Information that reaches the market in an uncontrolled way can bring down the price of shares and the rigidity of the real estate value market”, he said.

Another point that he considers to be problematic is that the person nominated to be an arbitrator has to reveal “any fact that gives the slightest doubt as to his impartiality and independence”. The bill does not specify what this “minimum doubt” would be. As it is an open concept, it could serve as a questioning in the future to try to overturn some decision.

Joaquim de Paiva Muniz, member of the Permanent Commission on Arbitration and Mediation of the Instituto de Advogados Brasileiros, highlighted in an opinion that the project will result in the reduction of cases, the migration of Brazilian arbitration to other countries and the elimination of the country as a possible seat of international arbitrations, causing damage to the Brazilian economy.

For him, the limitation of arbitration that a professional can act will not result in faster procedures, but will restrict the choice of users regarding qualified professionals for disputes involving complex, very specialized matters, for which the market needs qualified professionals.