Interpretation and application of the CAM-CCBC Rules Principle of Publicity in arbitrations involving the Public Administration
WHEREAS, Art. 2, §3, of Law n 9,307/96, as drafted by Law no. 13,129/15, provides that arbitrations to which a governamental entity (or “the direct public administration”) is a party shall observe the principle of publicity;
WHEREAS, the provision of Art. 14 of the Rules, which provides that arbitral proceedings are confidential, except as otherwise determined by law or by agreement of the parties, or in view of the need to protect a party thereto;
WHEREAS, the purpose of the CAM-CCBC is to administer the arbitral proceedings submitted thereto pursuant to the terms set out in the Rules (Arts. 1.1 and 2.2);
WHEREAS, arbitration is an extra-judicial means to resolve disputes (Art. 1 of Law no. 9,307/96);
WHEREAS, arbitrators are deemed to be de facto judges and judges under the applicable law, wherefor they examine the controversy submitted by the parties (Art. 18 of Law no. 9,307/96); and
WHEREAS, the Terms of Reference constitute the instrument that organizes the arbitral proceeding (Art. 4.17 of the Rules), in that the Parties may agree on everything that is of their interest, including matters relative to information and documents that may be disclosed, subject to the terms of the applicable laws providing for governmental entities, in addition to also being allowed to agree on the terms of Art. 4.18 of the Rules,
The President of the CAM-CCBC, in the exercise of the duties assigned to him by Article 2.6., letters ‘c’ and ‘d’ of the CAM-CCBC Rules, as approved on September 1, 2011, upon consideration of the Advisory Committee’s view thereon, decides to issue the following resolution, which provides for the interpretation of the Rules of this institution subject to the principle of publicity in arbitral proceedings involving the public administration.
Article 1 – In arbitral proceedings to which any governamental entity (or “the direct public administration”) is a party, the parties shall specify the information and documents which may be disclosed and how to make them available to third parties, pursuant to the principle of publicity prescribed by Art. 2, § 3 of Law no. 9,307/96.
Sole Paragraph – The abovementioned specification of information and documents to be made by the parties shall consider the administrative aspects inherent to the CAM-CCBC and observe any secrecy protected by law, trade secrets, third-party documents, private agreements containing confidentiality clauses and proprietary matters, protected under intellectual property rights.
Article 2 – The Arbitral Tribunal shall decide on requests made by either party in respect of the confidential nature of documents and information protected by law or the disclosure of which may affect the interest of the parties.
Article 3 – The CAM-CCBC may inform third parties of the existence of arbitral proceedings, of the date of the request for arbitration, and of the parties’ names, in addition to making such data available on the CAM-CCBC website.
Paragraph 1 – The CAM-CCBC shall not provide documents and other information concerning the proceedings.
Paragraph 2 – The hearings held during arbitral proceedings are intended for the parties and their attorneys, subject to the provisions included by the parties in the Terms of Reference.
Article 4 – Any and all supplementary information or documents produced, subject to the limits set by the applicable law and to the provisions of the Terms of Reference, shall be within the authority of the party to the arbitral proceeding which is a governmental entity (or an entity of the “direct public administration”), under the law applicable thereto.
São Paulo, January 20, 2016.
Carlos Suplicy de Figueiredo Forbes
President of the CAM-CCBC