Mining statue

Q&A with Eleonora Coelho

President of CAM-CCBC

Global Publication November 2020

Introduction

We speak with Eleonora Coelho, President of the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (CAM-CCBC)1

You were appointed in 2019, the first female President in CAM-CCBC’s history. Please tell us a little about the organizational structure of CAM-CCBC and the key elements of your role? 

I was very honored to be elected as the first female President of CAM-CCBC. Prior to my election, I had been Secretary General for the past four years and so was already involved in the Center’s administrative activities.

The Center’s Direction includes the President and three Vice Presidents, all elected and pro bono roles. CAM-CCBC also has two Advisory Boards, one for Arbitration and the other for Mediation, that give support to the President in conducting the Center’s practices and development. Within the Center’s organizational structure, the General Secretariat is in charge of senior management and supervision of the Center’s activities, and also entrusted with day-to-day decisions in proceedings. The Deputy Secretary General is responsible for matters such as people management and assists in the decision-making process. The General Secretariat team is also composed of assistants. CAM-CCBC has eight Secretariats, formed each of a case manager and an assistant case manager, lawyers with specialization in practice areas who oversee the conduct of administration of proceedings from start to end. Two coordinators oversee the Secretariat’s work and develop best practices. We also have support teams, including finance, IT, marketing, events and so forth. Finally, the Institutional Development team is composed of three lawyers who manage the Center’s institutional matters, as commercial relations, public and customer relations, academic initiatives and so forth. 

My role as President has two main fronts: administration of proceedings and institutional development. I am personally involved in institutional and technical developments, the formation of specialized committees, promotion of important domestic and international events such as the São Paulo Arbitration Week and our annual Arbitration Congress, etc. In respect of administration of proceedings, I am responsible for deciding on any matters presented to CAM-CCBC within proceedings prior to the Arbitral Tribunal’s constitution. Apart from the daily work on ongoing cases, I also coordinate activities as the revision of our regulations, approval of new administrative resolutions (ARs) and any other initiatives to develop the Center’s service quality in case management. 

 

What are the key strategic objectives that you wish address during your presidency? 

CAM-CCBC is the leading arbitration center in Brazil, one of the most important in Latin America and among the best-known institutions worldwide. The goal is to maintain this leadership, whilst improving even more the quality of the services rendered – mainly to technically improve our tools so we may strengthen our position as an international reference. 

In addition, we will continue to carry out our indirect but no less important missions, such as fostering the growth of arbitration in Brazil and in the world, through the promotion and support of academic student training events, among others. We are always attentive to the needs of the market, to the development of arbitration as a whole and how the Center may contribute as best practices creator and developer. 

My work philosophy is based on horizontal management, diversity and transparency and a constant fight for the common good. 
 
Furthermore, it is essential to reflect on the tremendous changes we lived through in 2020. I candidly believe that the covid-19 pandemic and other relevant events have reinforced my views regarding the importance of social responsibility and the significant role of leadership in promoting affirmative actions. For instance, it became a personal mission to battle gender and racial bias in the field of arbitration, and I am steadily encouraging CAM-CCBC to become an even more influential player in this issue.

I believe we have a promising – and more equal - path ahead.

 

What do you see as some of the challenges that you will face during your presidency, and/or for international arbitration in Brazil more generally, in the coming years? 

Arbitration is consolidated as an adequate method for dispute resolution in Brazil and abroad. The future looks bright, but there are always challenges ahead. 
 
In Brazil, we see a phenomenon of democratization of ADR – i.e. arbitration is reaching and developing in the four corners of the country. I believe future challenges will be related to the further use of arbitration by new markets. Some business sectors are still reluctant and adaptations are needed to fit other markets, be it in prices, general promotion of arbitration or even infrastructure matters. 

The covid-19 pandemic was also an unfortunate and unforeseen event that presented several challenges for CAM-CCBC. However, we take our commitment to the parties, attorneys, and arbitrators very seriously. Even in the face of a lockdown, we were sure that we must continue to provide safe, efficient, and responsible case management. 
 
In a country with such an overloaded judicial system, to promote adequate access to justice is also a form of exercising our social responsibility. Hence, in just 48 hours after the pandemic began, CAM-CCBC organized itself internally to ensure the continuity of the more than 300 procedures in progress. Also, 100% of our staff started to work from their homes

It was indeed a challenge, but we managed to act resilient and focused on the evolution of the ADR system.

Moreover, the digital era brings some relevant challenges for arbitration: cybersecurity, machine learning and other technological advances bring the challenge of adaptation for international arbitration institutions, practitioners and other professionals. For institutions, especially, adaptation is needed to cope with digital proceedings and provide security for online exchange of information.

Another great challenge is the revision of our Rules, published in 2012. The Rules are efficient and technically adequate, but already call for some adjustments, especially to consolidate provisions of our ARs that regulate pressing and trending topics such as emergency arbitration, proceedings governed by UNCITRAL Rules, etc.
 
However daunting future challenges may be, I am confident arbitration will continue to develop as a preferred dispute resolution method for complex international commercial disputes. 


In 2019, CAM-CCBC celebrated its 40th anniversary. Please tell us about CAM-CCBC and its approach to dispute resolution, and how it has developed over the past 40 years?

CAM-CCBC was founded on July 26, 1979 by a group of lawyers and law professors, initially as the CCBC Arbitration Commission. The Center anticipated the regulation of the activity in Brazil. When the Arbitration Law was published in 1996 (Law no. 9307/96), the Center stood out in the national scene because it was already structured to offer reference services in line with the best international practices. 

Brazil’s development of an arbitration market was fast and steady. The enactment of the Brazilian Arbitration Act took place in 1996, based on the UNCITRAL Model Law. In 2001, the Superior Court of Justice confirmed the constitutionality of arbitration through a decision rendered in a paradigmatic case. With that and the adoption of the New York Convention, ratified through a presidential decree in 2002, the legal system established was arbitration-friendly and in line with international standards from its conception.

Brazilian courts have also consistently shown a deep understanding and respect for party autonomy and for best practice in arbitration. These are also the reasons why São Paulo, one of the most important financial hubs and largest business centres in Latin America (and where CAM-CCBC’s main unit is located), is considered one of the safest seats in Latin America and the wisest choice for arbitration according to relevant arbitrators, lawyers and companies throughout the globe.

CAM-CCBC and Brazil developed hand in hand. Today, CAM-CCBC aims to maintain its leadership role and continuously improve the quality of its services. The unique case management formula, certified by the ISO 9001:2015 – an international certification of quality in administration processes – seeks to ensure efficiency and celerity to arbitral proceedings administered by the Center.

Finally, like most arbitral institutions and as a non-profit organization, in addition to providing case management services, CAM-CCBC also carries out an institutional role to promote arbitration. Academic initiatives, scholarships, seminars and promotion of arbitration in several countries and continents are some of the Center’s main focuses. 

This year, CAM-CCBC was once more recognized by Leader’s League as a leading Brazilian institution, apart from having been appointed as 8th top of mind institution by QMUL and White & Case Survey in 2018. These are just some examples of the recognition the Center has received throughout the globe. 

 

On March 2020, CAM-CCBC launched its inaugural CAM-CCBC Annual Report. Can you share some of the key statistics or trends identified in that report? 

CAM-CCBC’s first Annual Report – Facts and Figures aims to provide a precise overview of CAM-CCBC’s key activities in 2019, in line with our transparency pillar. The report includes statistics, institutional developments and new rules and regulations. It is also an important market tendency that allows the community to better understand the arbitration market, future trends and the Center’s business, due to CAM-CCBC’s position as market leader in Brazil and benchmark position abroad. 

Among the statistics presented about the 2019 casework, some highlights are the nature of contracts involved in proceedings and business sectors of the parties involved, which provide an overview of the markets using arbitration for dispute resolution. Data about CAM-CCBC’s administrative decisions show matters presented by parties before the constitution of the Arbitral Tribunal and the solutions provided by the Center. Diversity, Brazilian Public Administration entities and data concerning the amounts in dispute and others are also tackled on the report. 

The institutional developments are highlighted right at the beginning of the report and include Secretarial developments, new transparency channels, a new unit inaugurated and much more. Finally, an example of new rules and regulations is Administrative Resolution 35/2019, which establishes the publication of information about constituted Arbitral Tribunal’s on the Center’s website. 

CAM-CCBC’s Annual Report is available in full at our website. 

 

Please tell us about the international arbitration market in Brazil and (if any) key recent developments or issues affecting the use of international arbitration in Brazil? 

Firstly, it is important to contextualize that the Brazilian Arbitration Act was based on the UNCITRAL Model Law, importing its most important concepts and principles. The Act opted to follow the monist approach that makes no distinction between domestic and international arbitration. 

The Act applies to all arbitral proceedings seated in Brazil and only regulates the process of recognition and enforcement of foreign arbitral awards. The control exercised by the Superior Court of Justice – which is competent to assess matters of recognition and enforcement of foreign arbitral awards – is restricted to formal aspects of the award, and once recognized it becomes res judicata in Brazil. These provisions are in line with international standards established by the New York Convention of which Brazil is a signatory.

In addition, the case law has evolved through the years manifesting support to arbitration by the judiciary. São Paulo, for instance, has specialized courts that built a positive dialogue with arbitration. Last year, CAM-CCBC promoted a debate among two judges of the specialized courts and the members of the Center’s list of arbitrators. 

In terms of legal framework, including judicial support, one can certainly state that Brazil is an arbitration-friendly jurisdiction. 

 

This issue of our International Arbitration Report is focussed on the extractive industries. Can you share any insights or trends in extractive industries-related arbitration in Brazil? 

The mining industry is in exponential and constant growth in Brazil. In 2019 alone, the industry grew 39.2% in comparison to the previous year, jumping from US$ 25.2 billion to US$ 35.1 billion (according to data from journal Agência Brasil as at 02.19.2020. 1 US$ = 4,37 R$). Brazil is a great exporter of minerals and import is also growing – last year it grew 9.73%, for instance. Apart from the constant and booming growth of the market, the mining sector is one of the largest business sectors in the country, representing 25% of Brazil’s commercial balance and 4% of Brazil’s gross national product. Therefore, it is also an important market for arbitration. 

CAM-CCBC has administered over 30 cases involving mining industry companies, involving approx. US$ 700 million, of which 8 are ongoing. The nature of such disputes relates mainly to corporate matters and contracts for supply of goods and/or services and only one of them involves public administration entities. 

We expect that this area will further develop in the next five years due to foreign investments and the industry’s natural growth. This, in consequence, will surely expand the arbitration market in the business sector as well, considering the amounts involved in disputes of the sector and the complexity and commercial nature of such disputes. 

 

What steps has CAM-CCBC taken to address current issues in arbitration such as transparency, efficiency and costs, the use of technology etc? 

CAM-CCBC’s pillars are impartiality, independence, efficiency, transparency and continuous improvement of case management. Therefore, issues as transparency and efficiency were always on CAM-CCBC’s radar and the use of technology has been an integrating part of the development of proceedings-administration best practices at the Center.

Transparency is an especially sensitive issue in international and Brazilian arbitration. Aware of its importance, CAM-CCBC is preparing and has already implemented several measures to improve the topic. Our Annual Report already mentioned is one example of a transparency initiative.

Another example is the study group formed in 2019 for the design of a method for publication of extracts of awards rendered in proceedings administered by the Center. The methodology is already complete and will be published soon. 

CAM-CCBC also publishes on its website key information concerning proceedings involving direct public administration entities, following local legislation and an ARs published by the Center. Also, the Center publishes information on arbitral tribunals constituted starting from 2019, based on another AR. 

Apart from those specific initiatives, the Center has several communication channels with the public and publishes ARs on sensitive topics for further transparency – e.g. specific notes on CAM-CCBC’s support of hearings and meetings. 

Efficiency is an important professional attribute for the Center. CAM-CCBC has been certified since 2004 according to the ISO 9001 – internationally recognized standard for Quality Management Systems – attesting the quality of its arbitration-proceedings management system. Last year CAM-CCBC expanded this certification to all dispute resolution methods. This attests the quality and efficiency of our processes, which are indispensable for successful proceedings. 

Concerning the use of technology, and as mentioned before, the Covid-19 pandemic demanded immediate action to ensure the electronic processing of proceedings. 

On April 2nd, 2020, CAM-CCBC enacted the Administrative Resolution 40/2020 establishing rules for conducting 100% online proceedings. Therefore, we fully anticipated an ongoing project to transfer all our case management activities to the virtual environment. 

Following this path, we also designed the “Notes on CAM-CCBC Remote Meetings and Hearings” in order to guide our clients with all the best practices and technical requirements for Online Hearings. 

Nonetheless, it is important to mention that all these steps forward were taken very cautiously and with constant supervision of our IT team. Moreover, all of our staff received extra training in cybersecurity and data protection to better deal with this new reality of ADR’s.

Finally, as for costs, CAM-CCBC has published AR 36/2019: no administrative fees are paid to CAM-CCBC for mediation when the parties, following mediation proceedings, commence arbitral proceedings at the CAM-CCBC; and 50% discount is granted when the parties request, in the course of arbitral proceedings, suspension thereof to start mediation proceedings. 


Has CAM-CCBC been developing any other innovations recently? 

CAM-CCBC has structured an Institutional Development team in 2019, which will further establish the Center commercially and institutionally, focusing on external relations, academic initiatives, client relations and other important aspects of the Center. This innovation will further establish the Center’s activities before the general public. 
 
Equal opportunities for women in the field of Arbitration is another focus. CAM-CCBC is determined to have a List of Arbitrators with 30% of women in 2020, apart from already establishing that same percentage as a minimum for speakers in events which CAM-CCBC organizes, sponsors or supports since 2019. 

Another innovation worth mentioning is related to the Secretariat: the professionalization of the case management is a strategic objective of my presidency, as I have already mentioned. In this sense, we have taken some innovative steps. Firstly, Ms. Patrícia Kobayashi is now General Secretary of CAM-CCBC and deals with administrative decisions submitted to the Center within proceedings. Secondly, each of our eight case management teams is specialized in a procedure and/or a sector – e,g, emergency arbitration as a procedure, or oil & gas as a sector – so each proceeding is not only carefully administrated but handled by a lawyer acquainted with the case’s subject matter. 
 
Recently, we also completed a renovation project for the Hearing Center to enable face-to-face hearings, in exceptional circumstances. The Administrative Resolution 43/2020 sets out all the guidelines regarding face-to-face meetings, taking into consideration the public health recommendations related to Covid-19

 

How is CAM-CCBC fostering the growth of arbitration in Brazil and/or globally? 

To foster the development of arbitration in Brazil and abroad is one of CAM-CCBC’s strategic objectives as a non-profit organization, and it does so by celebrating cooperation agreements with peer institutions, granting scholarships to law students, lawyers and practitioners, promoting internships, granting sponsorships, supporting academic initiatives and promoting academic events.

Nationally, CAM-CCBC is recognised as the pioneer institution in assisting the study and practice of arbitration. The centre regularly grants scholarships to Brazilian law students and practitioners in universities, such as the Washington College of Law and the University of Miami School of Law, or organisations such as the Max-Planck Institute for Comparative and International Private Law in Germany, the Société de Legislation Comparée in Paris and the International Dispute Professional Academy in Vienna. 

As a non-profit organisation, CAM-CCBC also provides financial aid to law students and numerous sponsorships to events such as the International Arbitration Competition of Asunción, the International Negotiation Competition, the Consensual Dispute Resolution Competition, as well as the Willem C Vis International Commercial Arbitration Moot.

The Center also promotes the annual CAM-CCBC Arbitration Congress, one of the largest arbitration congresses in Brazil, and the São Paulo Arbitration Week, which is a collaborative platform conceived as an organised calendar for law firms, universities, associations and institutions to promote events in a productive environment in benefit of the development of ADR.

During the pandemic, we persevered this academic commitment to our community. We managed to organize the first 100% online congress with high-level debates and, of course, keeping our formal pledge to promote gender diversity. In this year’s congress, 50% of the speakers were women from different backgrounds and jurisdictions

We also organized several webinars and co-organized numerous online events. In each of them, we encouraged donations to social institutions.

CAM-CCBC is also involved in many events, initiatives and institutional activities worldwide. In 2018, the Centre’s representatives attended the International Council for Commercial Arbitration Sydney, promoted a roadshow in London on the occasion of the III Oxford Symposium on Comparative International Commercial Arbitration, and, of course, is always in Vienna for the Willem C Vis Moot, among other activities. 

In 2019, CAM-CCBC received an LLM candidate at Sciences-Po Paris for a three-month experience at the Centre. The project will be further developed into an international internship programme, improving the exchange of information and experience with foreign students and practitioners. In addition, CAM-CCBC has entered into several cooperation agreements with distinct arbitral institutions worldwide, such as the Permanent Court of Arbitration in the Hague, the Hamburg Arbitration Circle, the Chamber of Arbitration in Milan in Italy; the CAM-Santiago in Chile, among others (read more about our partnerships here).

CAM-CCBC’s work goes far beyond the delivery of cutting-edge services in the administration of arbitral proceedings. The Centre is continuously contributing to the development of the market in its daily activities. This hard and constant work, along with the serious commitment to its role in the administrative, institutional and international fields, guarantees CAM-CCBC leadership among the arbitral institutions not only in Brazil and Latin America, but in the world.

1 Ms. Coehlo is also an arbitrator and partner of Eleonora Coelho Advogados

 

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