Multi-Party Arbitrations – An Overview of the Arbitration Rules of Brazilian Institutions
MULTI-PARTY ARBITRATIONS – AN OVERVIEW OF THE ARBITRATION RULES OF BRAZILIAN INSTITUTIONS
Mariana Martos Yamashita[1]
Lucas B. Morimoto da Silva[2]
- Introduction
Several aspects of arbitral proceedings have gained prominence in light of the increasing complexity of disputes submitted to arbitration. Among these aspects, issues such as the constitution of the arbitral tribunal, the consolidation of proceedings, and third-party funding raise important debates from both practical and theoretical perspectives.
In this context, it is essential to understand how the rules of Brazil’s main arbitral institutions address these and other procedural matters. This paper offers a comparative analysis of the arbitration rules of CAM-CCBC (2022), ICC (2021), CAMARB (2019), and CIESP/FIESP (2013), aiming to identify similarities, differences, and potential impacts on the conduct of arbitral proceedings.
- Multi-Party Arbitration
Academics and professionals often face difficulties in defining the term “Multi-Party Arbitration”[3]. This difficulty is due, among other factors, to the conceptual breadth that encompasses both procedural and procedural issues, as far as the outcome of the arbitration procedure is concerned[4].
A central question in this context is whether all — or only some — of the parties have consented to arbitration, especially when non-signatory parties are involved and objections are raised regarding the absence of consent to submit to arbitration[5]. This issue may involve procedural aspects, such as the admissibility of including these non-signatory parties in the arbitration without an express agreement[6], or even how the arbitral tribunal will be constituted in the face of multiple parties.
On the other hand, scholars that admit that a non-signatory party is considered a party to the arbitration agreement concern the substantive question of whether that party, in fact, expressed consent to arbitration[7].
Thus, multi-party arbitrations require an analysis that navigates both procedural issues, such as admissibility and the constitution of the tribunal, and substantive matters, particularly those related to the extension of consent to arbitration. A clear delineation of these aspects is essential not only to ensure the validity of the proceedings, but also to safeguard fundamental principles such as due process and party autonomy, which are central pillars of the arbitral system.
- Appointment of Arbitrators in Multi-Party Arbitrations
As mentioned in item 2 above, the procedure for appointing arbitrators in multi-party arbitrations is a controversial and relevant issue when it comes to upholding the principle of equality[8]. Multi-party arbitration creates challenges for fairness in the formation of the tribunal, especially when parties on the same side have misaligned interests.
The CAM-CCBC Rules adopt a more flexible model, allowing its Presidency to appoint the entire arbitral tribunal — including in cases of default — after assessing the existence of different sides or groups of interest.
At CIESP/FIESP, parties on the same side must jointly appoint one arbitrator; if no consensus is reached, the Chamber’s President appoints the entire tribunal. Similarly, CAMARB’s rules provide for joint appointment, and in case of disagreement, the Board appoints all arbitrators, including the tribunal president.
The ICC rules follow similar logic: multiple claimants or respondents must jointly appoint an arbitrator, or else the Court will intervene to form the tribunal.
- Third Party Funding
The regulation of third-party involvement, particularly third-party funding, varies among institutions. CIESP/FIESP addresses the issue in its Code of Ethics, allowing the sharing of information with funders or potential funders, provided they commit in writing to confidentiality. CAM-CCBC requires parties to disclose third-party funding as soon as possible, to allow arbitrators to assess potential conflicts of interest.
The ICC rules contain an even more comprehensive provision, imposing on the parties the duty to promptly notify the Secretariat, the arbitral tribunal and other participants of the existence and identity of third-party funders, whenever they have an economic interest in the outcome of the arbitration[9]. The CAMARB rules, on the other hand, remain silent on the intervention of third parties, which may represent a significant gap in light of contemporary trends in commercial arbitration, especially in highly complex disputes.
- Consolidation of proceedings
The consolidation of arbitration proceedings, a relevant instrument for the rationalization of resources and harmonization of decisions, is expressly provided for in the regulations of the CAM-CCBC and the ICC. Both institutions allow the consolidation of arbitrations even if based on different agreements, as long as the identity of the parties, the connection between the underlying legal relationships and the compatibility of the agreements are verified. The decision is the responsibility of the Presidency[10] (CAM-CCBC) or the International Court of Arbitration, in cases of ICC proceedings, which must also consider the stage of each proceeding and the possible constitution of separate tribunals.
CAMARB, although not using the term “consolidation,” grants the tribunal of the first proceeding the power to decide on the connection or joinder of claims, when there is identity of parties, cause of action, or subject matter. This decision must precede the continuation of the other proceedings, which remain suspended until the matter is resolved.
Finally, the FIESP rules do not specifically address the consolidation of arbitrations, which may limit the institution’s ability to act in coordinated fashion in complex disputes.
- Final Considerations
The analysis of Brazilian arbitration rules reveals a growing — albeit uneven — concern with the particularities of multi-party arbitrations. The three topics addressed in this article represent critical points in safeguarding the principles of equality and procedural efficiency.
The fact that not all rules cover these issues comprehensively, and that there are discrepancies among those that do, highlights the need for parties to act strategically and proactively when drafting the arbitration clause. Choosing the applicable arbitration rules and the administering institution should not be done generically, but with careful consideration of the legal transaction and potential future disputes.
Thus, the regulatory diversity among Brazilian arbitral institutions is not a barrier to arbitration, but rather an opportunity to tailor solutions to the specific needs of each case.
[1]Bachelor of Laws from the Pontifical Catholic University of Paraná. Case Manager of the Chamber of Conciliation, Mediation and Arbitration Ciesp/Fiesp. Vice-president of the Committee of Young Arbitrators of the CBMA (CJA/CBMA). Member of the Board of New Voices of the Chamber Ciesp/Fiesp. E-mail: mariana.yamashita@ciesp.com.br
[2]Master of Law candidate at Universidade Presbiteriana Mackenzie. Founding member of Jovens no Canal (Arbitration Channel). Member of the Arbtrato Arbitrators list. Certified in Privacy and Data Protection Essentials by EXIN (PDPE). E-mail: morimotolucas@gmail.com.
[3]Regarding the conceptual and terminological problems surrounding “Multi-Party Arbitrations”, the authors recommend: OHLROGGE, Leonardo. Multi-Party and Multi-Contract Arbitration in Brazil . São Paulo: Quartier Latin, 2020. HANOTIAU, Bernard. Complex arbitrations : Multi-party , multi-contract and multi-issue . Kluwer Law International BV, 2020, (Introduction);
[4]We mention, for example, the difficulty that the doctrine has in finding a “terminological standard” regarding “Multi-Party Arbitrations”. An example of discussions may involve collective demands, as studied by: MARIANI, Rômulo Greff. Arbitragens Coletivas no Brasil. São Paulo: Editora Atlas, 2015, pp. 33 – 109.
[5]Here we mention William Park’s anecdotal and categorical passage that “ Like consummated romance, arbitration rests on consent ”. PARK, William W. Non-signatories and International Arbitration: An Arbitrator’s Dilemma. In: Multiple Party Actions and International Arbitration . New York, Oxford University Press, 2009, p. 01.
[6]In this sense, Marcela Levy ponders: “The question that arises is: if two or more parties effectively signed the instrument containing the arbitration clause, using a formality that was dispensable, can the parties that did not respect the same formality, which are part of the same group of signatories, be considered as parties to the procedure? It is considered, in this context, that the decision of a party not to be included as a signatory to a contract must be accepted as a conscious decision not to be bound by that agreement (and, consequently, by the arbitration clause contained therein)”. LEVY, Marcela. Arbitragem, extensão da cláusula compromissória e grupo de empresas. In: MONTEIRO, Andre Luis; ADAMEK, Marcelo Vieira von; e CRAVEIRO, Mariana Conti. Arbitragem em Direito Societário. São Paulo: Revista dos Tribunais, 2025, p. 67.
[7]The doctrine has also debated the subjective limits of the arbitration clause, as in cases of disregard of legal personality in arbitrations. ASSUMPÇÃO, Carolina Cavalcante; PONZINI, Fernando Figueiredo. Desconsideração da personalidade jurídica e os limites subjetivos da convenção arbitral. In: FILHO, José Augusto Bitencourt Machado (et. al.) (org.). Arbitragem e Processo: Homenagem ao Prof. Carlos Alberto Carmona, Vol. I. São Paulo: Quartier Latin, 2022, p. 322 e ss.
[8]As for the joint appointment of arbitrators by parties from the same party, the “Dutco case” (Cour de Cassation, 1992) stands out, which raised discussions about equality in the appointment of arbitrators and the possible nullity of the award. For detailed comments, see DELVOLVÉ (2014, p. 197-202).
[9]Within the scope of the ICC, Webster and Buhler highlight concerns about the duty to inform about third-party financing in arbitration proceedings conducted by the institution. In this sense: WEBSTER, Thomas H.; e BUHLER, Michael W. Handbook of ICC Arbitration. 5ª Edição, Londres: Thomson Reuters, 2021, p. 214.
[10]In the domestic arbitration scenario, the CAM-CCBC stands out for being a pioneer in providing for the consolidation of proceedings, even in regulations prior to 2012. Commenting on this version, Frederico José Straube highlights that the Presidency of the institution may determine consolidation when there is identity of parties and cause of action, as long as the decision is made before the signing of the Terms of Reference, avoiding an artificial increase in the complexity of the dispute. STRAUBE, Frederico José. Preface. In: STRAUBE, Frederico José; FINKELSTEIN, Cláudio; and FILHO, Napoleão Casado. (Eds.). The CAM-CCBC Arbitration Rules 2012: A Commentary, The Hague: Eleven International Publishing, 2016, pp. 11 – 13.
