Approves changes to the CAM-CCBC Conflict of
Interest and Availability Questionnaire

Attachment I of NC 04/2023

Arb. No. [No.]/[year]/SEC[n]

Conflict of Interest and Availability Questionnaire

Center for Arbitration and Mediation

Chamber of Commerce Brazil-Canada (CAM-CCBC)

Initial Clarifications

This questionnaire is intended to guide the appointed arbitrator in performing his/her duty to disclose facts concerning his/her professional and personal activity in the analysis of his/her independence, impartiality, and availability to exercise his/her functions in the arbitral proceedings, as per Articles 9.1^[1], 9.2^[2], 9.3^[3] and 9.4^[4] of the CAM-CCBC Arbitration Rules. Associated relationships in professional, academic or charitable organizations, social media and other information that is public and easily accessible to the parties are not necessarily subject to disclosure.

For completion hereof, it is necessary to read the CAM-CCBC Arbitration Rules and the attached Code of Ethics, which provides for the following topics: 1) Independence and Impartiality, 2) Diligence, Competence, and Availability, 3) Duty of Confidentiality, 4) Duty to Disclose and 5) Acceptance of Appointment. We also recommend the reading of the “Brazilian Arbitration Committee (CBAr) Guidelines for the arbitrator’s duty to disclose”^[5].

The answers to the questionnaire must be completed considering the names of the Parties, their counsels, and any natural persons or legal entities that have been informed by the Parties (People and Legal Entities Listed by the Parties), as provided for in Articles 9.5^[6] and 9.6^[7].

Disclosure does not imply the existence of a conflict of interest and does not disqualify the arbitrator. An arbitrator who has made a disclosure to the Parties regarding the subject matter of the arbitration considers himself/herself to be impartial and independent of the Parties, despite having disclosed them.

Completion and execution of this questionnaire imply acceptance to act in the capacity of arbitrator in the abovementioned proceeding, under the CAM-CCBC Rules, the Code of Ethics, Administrative Resolutions, or Supplementary Rules (available at CAM-CCBC website). Upon acceptance of this duty, under Administrative Resolution No. 35/2019, and unless otherwise agreed between the Parties, the arbitrator agrees that his/her name, nationality, function in the arbitral tribunal, and means of appointment be published on the CAM-CCBC website.

Proceeding’s General Data

Claimant(s)	[name and qualification]
Claimant(s)’s Counsels
Related Parties, materially relevant

 

Respondent(s)
Respondent(s)’s Counsels
Related Parties, materially relevant

 

Arbitrator’s General Data 

Name
Nationality
Occupation
ID No.
Social Security Number or Individual Taxpayer Registry
Professional Registration Number and any professional society
Address
Email

 

Payment of Fees

Pursuant to the provisions contained in the CAM-CCBC Schedule of Costs[8], please inform the country and the method for payment of fees:

Country

 

[  ] as business taxpayer (legal entity)

Company Name
CNPJ or ID No.

 

[  ] as individual taxpayer

CPF or ID No.

 

Note: In the event of international remittance or payment to individual, the additional fees shall be borne by the Parties.

Initial Questions

1. Are you available to act as arbitrator in order to ensure that the proceeding is properly conducted?
2. Have you been contacted by any of the Parties or People and Legal Entities Listed by the Parties, and have you made a prior judgment on the issues involving this case?

Questions about Relations with Parties

3. Do you act or have you ever acted as a director, member of administrative or advisory bodies, manager, employee, agent or in any other way in the name of or on behalf of the People and Legal Entities Listed by the Parties?
4. Do you have or have you ever had any personal relationship (close friendship or enmity) with one of the Parties or People and Legal Entities Listed by the Parties?
5. Do you represent/advise, or have you represented/advised one of the Parties or People and Legal Entities Listed by the Parties in the last 3 years?
6. Do you act or have you ever acted as an arbitrator in any case involving one of the Parties or People and Legal Entities Listed by the Parties in the last 3 years?
7. Are you or have you been a consultant, expert, opinion writer, technical assistant or technical witness for any of the Parties or People and Legal Entities Listed by the Parties in the last 3 years?

Questions about the relationship with the Parties’ Counsels

8. Do you have or have you had a business relationship with members of the law firms involved in this arbitration in the last 3 years?
9. Have you worked together with the law firms that represents the Parties in the last 3 years?
10. Do you have a relationship of close friendship or enmity with the lawyers that represents the Parties in the arbitral proceeding?
11. Have you ever been appointed by the law firm that represents any of the Parties in this proceeding more than 3 times in the last 3 years (for date counting, consider the day on which the appointment was made)?
12. Have you issued more than 3 (three) legal opinions for the law firm involved in the arbitration in the last 3 (three) years?
13. Are you acting jointly with the counsel of one of the Parties in the same Arbitral Tribunal in another arbitration?

Additional Questions

14. Do you have any interest of any kind in the result of the dispute?
15. Considering that it is the arbitrator’s duty to disclose to the Parties any relevant interest or relationship he/she has and has had with any of them (or with parties related to them) or that could in any way affect his/her impartiality and/or independence, do you have anything additional to disclose that you are aware of, considering the last 3 (three) years as a reference?

Code of Ethics

I declare that I have read and am aware of the terms of the CAM-CCBC Code of Ethics.

[  ] No

[  ] Yes

[Place] [Date].

__________________________

[Name]

CODE OF ETHICS

INTRODUCTION

The objective of this Code is to guide the conduct of the arbitrators acting in the Center for Arbitration and Mediation of the Chamber of Commerce Brazil–Canada (“CAM-CCBC”), from the prior phase of indication, during the arbitration and after the award is made.

The guidelines provided in this Code of Ethics, when appropriate, apply to all participants of the arbitration proceedings.

It also aims at serving as a guide to the Parties and attorneys in dealing with the arbitrator or arbitrators within each arbitration Tribunal.

The attorneys of the Party must base their performance in the procedure on ethical principles and honest behavior in relation to arbitrators and counterpart(s), collaborating to enable them (arbitrators) to do their work properly.

As a code of conduct, the following statements are recommended standards of guidance to be observed by the arbitrators. They are not legal rules, but rules of conduct to be adopted by the arbitrators to provide guidance for CAM-CCBC and its users.

Such standards should not be regarded as complete or exhaustive, and they do not exclude other positions that common sense and ethics indicate.

The statements reproduced below observe the provisions of Article 13, § 6 of Law No. 9.307/96: “In the performance of his duty, the arbitrator shall proceed with impartiality, independence, competence, diligence and discretion.”

Every arbitrator to integrate the List of Arbitrators, as well as those who may work in arbitrations administered by CAM-CCBC, will receive a copy of this Code.

STATEMENT 1 – INDEPENDENCE AND IMPARTIALITY

The first duty of the arbitrator is to be and remain independent and impartial before and during arbitration.

Independence is a prerequisite for impartiality.

Be and remain impartial, without favoring one party over another or show predisposition to certain aspects related to the subject matter of the dispute.

Adopt the conduct and decide according to your free rational and reasoned conviction. Act justly.

Always act independently and transparently, without any connection or even approach with the parties to the dispute.

Reveal all the facts and circumstances which may give rise to doubts as to your impartiality or independence, not only as to your opinion, but also under the eyes of the parties, i.e., you must put yourself in the place of the parties and ask yourself the question that if you were a party, you would like to know a certain fact or not.

Preferably you should not maintain direct contact with the parties and their lawyers until the permanent end of the procedure. If you need to contact them, do not talk to them individually, but together with the other members of the Arbitration Tribunal.

STATEMENT 2 – DILIGENCE, COMPETENCE AND AVAILABILITY

Be diligent, ensuring regularity and quality of the procedure, sparing no effort to act in the best possible way in the investigation of the facts related to the dispute.

Conduct the procedure smoothly and diligently, with great rectitude in all your actions and attitudes, which should be conducted with caution.

Act competently and efficiently, being guided by the parameters dictated by the parties in the Terms of Reference for the preparation of your decision.

Ensure that the costs do not rise out of proportion, resulting in an overly costly arbitration.

Only accept the task if you have the qualifications necessary to resolve the contentious issues and the proper knowledge of the language corresponding to the arbitration.

Only accept the task if you can devote to the arbitration the time and attention necessary to meet the reasonable expectations of the parties, including the time for the study on the topic and the latest contributions brought to it by the doctrine and jurisprudence.

Be prepared for the hearings, having previously and adequately studied the case.
Avoid not only improper or questionable conduct, but also the appearance of improper or questionable conduct.

Keep honest and urban behavior towards the parties, lawyers, witnesses and also the other arbitrators and the members of the administrative body of the CAM-CCBC, whether in relation to the procedure or out of it.

Behave with dedication and commitment so that the parties feel supported and have the expectation of a regular development of the arbitration proceedings.

Retain documents you receive and ensure that this duty is well performed by CAM-CCBC. Cooperate for the good quality of the services provided by CAM-CCBC.

STATEMENT 3 – DUTY OF CONFIDENTIALITY

Before, during and even after the arbitration, maintain the confidentiality of the procedure, the discussions, the deliberations of the Arbitration Tribunal and the content of the award, unless the parties exclusively allow you to disclose the award.

Refrain from using information obtained during the arbitration proceedings for personal or third-party advantages, or that may affect any third-party interests.

Avoid using elements collected in arbitrations in which you are participating or have participated for the publication of news or technical-legal articles that may provide the identification of the parties and/or the “sub judice” issue by the target audience of such matters.

Deliver to CAM-CCBC any and all documents or work papers in your possession or, at the discretion of the parties, destroy them without keeping copies or virtual records.

STATEMENT 4 – DUTY OF REVELATION

The arbitrator shall disclose to the Parties, upon his/her appointment, any interest or business and professional relationship that he/she has or had with any of them and that can somehow affect his/her impartiality or independence.

Disclose any interest or relationship that could potentially affect the independence or that might create the appearance of partiality or bias.

The Parties, after acknowledging the arbitrator’s appointment, must report any fact that is of their knowledge or that they should know and which may link them to the arbitrator, so that he/she can perform the checks and relevant disclosures.

Upon hearing the revelation made by the arbitrator, the Party should report the facts about which it wants clarification and that in its opinion could compromise the impartiality and independence of the arbitrator.

Partiality or bias should be understood as the personal situation of the arbitrator in relation to the parties and their lawyers, or to the subject matter of the dispute, which may affect the exemption of his/her judgment in the case.

The duty of revelation is continuous during the arbitration proceedings and any occurrences or events that may arise or be discovered in that period should be disclosed.

STATEMENT 5 – ACCEPTANCE OF ENDOWMENT

Once the appointment is accepted, the arbitrator shall be bound in relation to the parties and shall comply with the terms agreed on the occasion of his/her investiture.

The arbitrator who is part of the Arbitration Tribunal or a sole arbitrator, e has no attachment or commitment to the party that nominated him/her.

The arbitrator, during the arbitration proceedings, should not make contact with the party who appointed him/her or their attorney, to make any comment on the arbitration proceedings in progress.

The arbitrator should not resign, unless exceptionally, for a serious reason that prevents him/her from exercising his function.

It is considered serious or relevant reason, among others, serious illness of the arbitrator him/herself or of relatives or closely-connected people that prevents him/her or substantially hinders him/her from performing his/her duties; the appearance of deep disagreement with one of the other arbitrators or with both, or with the parties and their lawyers, which prevents the proper and free development of the procedure; the need for an urgent extended trip, incompatible with the functions to be exercised in the Arbitration Tribunal or that may harm it substantially; and the occurrence of any event or situation that may characterize a hindrance situation.

Be respectful in acts and words.

Refrain from making derogatory references, or that may cause any kind of embarrassment to the arbitrations which are or have been under the supervision of another arbitrator.

GENERAL PROVISIONS

The members of the CAM-CCBC managing board are allowed to exercise the duty of arbitrator or attorney of a party in arbitrations administered by CAM-CCBC. However, they shall refrain from participating in administrative decisions related to the respective arbitration proceedings.

On the duty of confidentiality and loyalty, as well as to avoid embarrassing situations for arbitrators in social gatherings and academic events, the attorneys of the parties shall refrain from making comments or hold conversations with the arbitrators on arbitration proceedings in progress.

(Code of Ethics approved in 1998, with amendments approved on January 20, 2016 by the Chairman of CAM-CCBC, after consulting the Advisory Board)

[8] Schedule of Costs available at https://ccbc.org.br/cam-ccbc-centro-arbitragem-mediacao/en/arbitration/schedule-of-costs/

c. Payment by CAM-CCBC to arbitrators and experts

92. Payment of fees to arbitrators and experts may be made to the arbitrator or expert personally or through a professional corporation of which the arbitrator and/or expert is a partner, provided that such payment falls within the scope of its corporate purpose.

93. If the arbitrator and/or the expert chooses to receive their fees as individuals, such information shall be submitted by the professional as soon as they undertake their role in the arbitration proceeding.

94. In the event of payment to individuals, the parties will bear the additional social security fees, which will be paid by CCBC (paying source for account and order of the parties) (Art. 22, I, of Brazilian Federal Law 9876/99).

95. Should the arbitrator and/or expert require payment through remittance abroad, the parties shall bear the taxes and bank fees, pursuant to Brazilian law.

The method for payment of fees chosen by the arbitrator or expert, whether a legal entity, individual or foreign remittance, shall remain in effect until the termination of the arbitration in progress.

Ref.: Answer to the Request for Arbitration | Notice for Appointment of Arbitrator and rules to be consider by the candidates 

Arbitral Proceeding No. [No.]/[year]/SEC[n]

Claimant(s): [Claimant(s) name(s)]

Respondent(s): [Respondent(s) name(s)]

Dear All,

The CAM-CCBC Secretariat sends attached the Answer to the Request for Arbitration, presented on [date of protocol] by Respondent(s).

Furthermore, we invite [Claimant’s name(s)] (“Claimant(s)“), and [Respondent’s name(s)](“Respondent(s)“), to each appoint, within fifteen (15) days, one (1) arbitrator to compose the Arbitral Tribunal, in compliance with the provisions of Article 11.1 of the CAM-CCBC Arbitration Rules (“Rules”), effective as of November 1, 2022, according to which:

11.1 When the parties have agreed that the dispute shall be resolved by three arbitrators or when it is thus determined by the CAM-CCBC Presidency, the secretariat shall forward to both parties a copy of these Rules and the list of arbitrators, inviting the parties to within 15 (fifteen) days each appoint 1 (one) arbitrator to compose the Arbitral Tribunal.

Please note that, according to Article 11.2 of the Arbitration Rules, the Parties may appoint the professional of their choice. However, if the name is not part of the Arbitrators List, such appointment must be accompanied by the person’s respective curriculum:

11.2 The parties may freely appoint the arbitrators that will compose the arbitral tribunal. The appointment of a name outside of the list of arbitrators shall be followed by their curriculum, which shall be submitted for approval by the CAM-CCBC Presidency.

Pursuant to Articles 9.2 and 9.3 of the Rules, the arbitrator must be and remain independent and impartial, and must disclose to the parties any facts or circumstances that may rise reasonable doubts as to his/her impartiality or independence.

9.2 The arbitrator must remain independent and impartial throughout the entire arbitration.

9.3 The arbitrator must immediately disclose to the secretariat and to the parties any facts or circumstances that may raise reasonable doubts as to the arbitrator’s impartiality or independence.

Lawyers and arbitrators often have doubts about what needs to be disclosed. Considering that, to improve the duty of disclosure of arbitrators, this Secretariat requests that you, within [x days]:

1) inform any natural persons or legal entities that may be relevant to the arbitration;

2) inform the existence of third-party funding, according to Articles 9.5 and 9.6 of the Rules; and

Associated relationships in professional, academic or charitable organizations, social media and other information that is public and easily accessible to the parties are not necessarily subject to disclosure.

The arbitrator will answer the attached Questionnaire. The parties will be invited to comment on it, at which time they may request, if relevant to the assessment of independence, impartiality and availability, additional information that is not subject of the questionnaire, or clarifications on the responses to the questionnaire. They can also request the arbitrator for further clarifications, provided that the subsequent question is a consequence of the arbitrator’s response to the previous question.

It is worth remembering that in the following situations the CAM-CCBC Presidency may decide on the aspects of the appointment:

10.1 When the parties have not defined in the arbitration agreement the number of arbitrators to act in the proceedings, or have not agreed on their number, the CAM-CCBC Presidency shall decide whether there should be appointed one or three arbitrators, considering the complexity and amount in dispute.

11.8 If any of the parties fails to appoint an arbitrator or the arbitrators appointed by the parties fail to appoint the president of the arbitral tribunal, the CAM-CCBC Presidency shall make the appointment preferably from among the members of the list of arbitrators.

12.1 In the case of an arbitration with multiple parties as claimants and/or respondents, should there be no agreement on a method for appointing arbitrators by the parties, the CAM-CCBC Presidency, considering the interests of the parties, may appoint all the members of the arbitral tribunal, appointing one of them to act as president.

We also take this opportunity to share with Respondent(s) the link to access the electronic files of the proceeding: [hyperlink]. As advised by the I.T. Department, we suggest opening the link through an anonymous browser window.

Finally, we inform that the Answer to the Request for Arbitration and its attachments are available at the electronic case file and that, during the administrative phase, all submissions shall be sent exclusively by e-mail to CAM-CCBC Secretariat, which will be responsible for the upload at the main file.

We kindly request confirmation of receipt of this communication and its attachment

We remain at your disposal.

Best regards

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