VIII CAM-AMCHAM Arbitration Congress: A 360º View of Arbitration in Brazil and Worldwide

In celebration of its 25th anniversary, the Center for Arbitration and Mediation of Amcham (“CAM-AMCHAM”) held its VIII Arbitration Congress (“VIII CAM-AMCHAM Congress” or simply “Congress”) in São Paulo. The event gathered over 400 participants, including lawyers, arbitrators, corporate representatives and public-sector members, who engaged in discussions about the present and future of arbitration in Brazil.

The Congress featured four panels, one keynote speech delivered by Professor Paula Forgioni, and closing remarks by Professor Carlos Alberto Carmona. Opening remarks were presented by AMCHAM’s CEO Abraão Neto, CAM-AMCHAM’s Deliberative Board President Luciano Godoy, and CAM-AMCHAM’s Secretary-General Daniel Falci Goulart.

Below are some of the highlights of each presentation.

Keynote Speech—“Let’s Not Fight Windmills”

Professor Forgioni opened the Congress by addressing “Arbitration 360º.” She noted that arbitration in Brazil is now well established and successful—precisely for this reason, major disputes are increasingly submitted to arbitration. Drawing on the expression “Big cases make bad law,” and recalling a major Brazilian arbitration that harmed the public perception of the institution, she framed her central argument: arbitration’s inherent characteristics should not be treated as flaws.

Among the topics addressed:

• Party autonomy as the cornerstone of arbitration. Parties may appoint whomever they wish as arbitrator—even an incompetent arbitrator—because the choice belongs to them.

• Double-hatting: if parties want to appoint someone who also acts as counsel or expert, this is within their autonomy.

• Confidentiality: parties who want confidentiality should have it.

• Arbitral case law: creating precedents through the publication of awards would subject arbitrators to unknown decisions and undermine the system’s flexibility.

First Panel—Arbitration in Practice

Following the opening ceremony, the panelists Mr. Carlos González Bueno (González-Bueno SLP), Ms. Érica Kinoshita (Andritz Hydro Brasil), Ms. Heloisa Papassoni Zangheri (Arruda Alvim & Thereza Alvim Advocacia e Consultoria Jurídica), Ms. Paula Linhares Karam (Petrobras), moderated by Ms. Camila Biral (Demarest Advogados), explored the arbitration proceeding—from the pre-arbitration phase and drafting of arbitration clauses to the publicization of awards—from the perspectives of users, counsel, and arbitrators.

From the perspective of corporate users, arbitrator specialization emerged as a critical advantage, particularly in contrast to local courts where technical expertise may be lacking. The panelists also reflected on the growing complexity of arbitration proceedings, especially with respect to expert evidence, which has become a decisive factor in the choice for arbitration. This increasing complexity has shifted expectations regarding procedural speed: while celerity was once a defining feature of arbitration, it is no longer the primary consideration for many users, who instead value the depth and quality of the evidentiary phase. Ms. Paula Linhares shared data collected through an internal survey at Petrobras that clearly illustrated this trend.

The panel concluded with a discussion on the publication of arbitral awards. Although there is a general appetite for more transparency, users tend to support publication only in the abstract and not when it involves their own disputes (see also here). This tension underscores an ongoing challenge for advocates of greater transparency in the system.

Second Panel—Arbitration and Corporate Reputation

The panelists for the Second Panel were Ms. Ana Laura Sivieri (Braskem), Mr. Carlos Pires (Eversheds Sutherland), Mr. Gustavo Cesar Mazutti (TJSP), Ms. Lucinda A. Low (Low & Kinnear Dispute Resolution), Ms. Priscilla Villa Nova (Veirano Advogados), moderated by Ms. Debora Visconte (Visconte Advogados), examined arbitration’s role in crisis management and corporate reputation.

Drawing on the example of Braskem’s response to the tragedy in Alagoas, given by Ms. Ana Laura, the discussion illustrated how companies must navigate negotiation and mediation efforts while simultaneously managing public perception. The speakers highlighted the importance of strategic communication and the need for carefully structured processes to preserve institutional credibility.

The conversation then moved to the complex relationship between transparency and confidentiality. While confidentiality may allow companies to resolve disputes discreetly, transparency can be essential for maintaining public trust. This debate became particularly vivid when the panel addressed the treatment of confidentiality in arbitration-related court proceedings.

Mr. Gustavo, addressing the intersection between arbitration and the judiciary in Brazil, mentioned the different interpretations given to article 189, IV, of the Brazilian Civil Procedure Code—which establishes that processes involving arbitration will be conducted under judicial secrecy if the parties agreed to confidentiality. While some may defend that the article is not constitutional, as it would go against the constitutional rule of publicity set forth in articles 5º, LX, and 93, IX, of the Brazilian Federal Constitution (such as the ruling in case 2263639-76.2020.8.26.0000), Mr. Gustavo indicated that, under his perception, the article can be applied, with caution, and that he would analyze the circumstances of the case, balancing individual and public rights and guarantees, when deciding whether proceedings should be confidential (decision in case 2273251-67.2022.8.26.0000 is example of the judicial secrecy being applied).

The contrast between arbitration’s preference for confidentiality and the judiciary’s constitutional commitment to publicity gave rise to a lively exchange that extended into the audience and revealed the depth of disagreement among experts. For instance, Professor Carlos Aberto Carmona affirmed that publicity is a constitutional guarantee, and parties may waive it through confidentiality in arbitration—and the judiciary must respect this, while Professor Paula Forgioni countered that courts should also balance other relevant rights, such as the need to transparency/publicity and legal certainty, and cannot simply submit to individual preferences. This discussion remains unresolved and is likely to continue.

Third Panel—Innovation and Arbitration: What Is More Urgent? Teaching Technology to Lawyers or Law to Machines?

The panelists for the third panel, Mr. Alexander G. Leventhal (Quinn Emanuel Urguhart & Sullivan, LLP), Ms. Bianca Longo Campos (Jus Mundi), Mr. Daniel Jacob Nogueira (Jacob & Nogueira) and Ms. Tamara Oliveira (KPMG), moderated by Mr. Rafael Villar Gagliardi (XGIVS Advogados), shifted the focus to innovation, specifically the role of technology and artificial intelligence in arbitration.

Panelists described the tools currently used in law firms and consulting practices and emphasized that, despite the sophistication of these technologies, human supervision remains indispensable. The discussion acknowledged that AI can support evidence management, document analysis, and even the anonymized publication of awards, offering a potential solution to the tension between transparency and confidentiality identified in earlier sessions (see here, here and here).

The speakers also addressed the growing need for regulation and internal policies. Many legal professionals already use AI tools informally, making it all the more important for institutions and firms to develop structured guidelines (see also here).

Despite significant advances in artificial intelligence, certain elements of arbitration remain inherently human. When asked by Mr. Rafael Gagliardi which aspects of the process are quintessentially human, the panelists emphasized that the act of deciding a dispute—and the nuanced handling of technical evidence—still relies fundamentally on human judgment and expertise.

Fourth Panel—Arbitration and Public Power: Economic-Financial Rebalancing

The fourth and last panel had Mr. André Rodrigues Junqueira (PGE-SP), Mr. Flávio Luiz Yarshell ( Yarshell Advogados), Mr. Raul Pinheiro Donegá (Marques Donegá Advogados) and Ms. Patrícia Ferreira Baptista (PGE-RJ) as panelists, and Ms. Cristina M. Wagner Mastrobuono (Cristina Mastrobuono Adv.) as moderator. The panel addressed arbitral disputes involving public entities and the issue of the economic-financial rebalancing of administrative contracts.

Mr. Raul Pinheiro Donegá described the issue of the economic-financial rebalancing of administrative contracts as a prime example of the dialogue between law and economics: while the legal framework outlines the parameters of rebalancing, economic analysis determines its quantification. This multidimensional nature underscores why disputes over rebalancing often require both normative interpretation and technical evaluation of market dynamics, costs, and risk allocation. The panelists examined the challenges that arise when contracts fail to specify how rebalancing should occur, since the parties would most likely have different views and reasonings for the rebalancing parameters, leading to divergent baselines, contrasting methodologies, and ultimately to more contentious expert reports. They further discussed the importance of clarifying these issues before the expert-evidence phase begins, as the parameters have to be established in order to have efficient and relevant evidence produced. Without such prior alignment, experts risk answering different questions undermining the usefulness of their conclusions.

The debate revealed several unresolved questions, including the scope of parties’ requests for different forms of rebalancing—such as tariff adjustments or contract extensions—and the limits of arbitral authority when public administration retains discretionary powers. The discussion highlighted the delicate balance between respecting administrative prerogatives and ensuring that arbitral tribunals can render effective decisions: where is the limit of what can be determined by the arbitral tribunal without interfering in the discretionary power of the administrative authority? Would an award that determines the public entity to extend the contract be effective? Most likely not, as the administrative power is to decide on how to rebalance the contract.

Public entities’ autonomy and discretion cannot be compromised, yet how this limit shapes the arbitral tribunal’s decision-making remains a question for further debate.

Closing Remarks—A Glimpse of the Future

Commenting on the discussions held throughout the Congress, Professor Carmona highlighted several key points. He emphasized that arbitration is not suited to uniformity or the creation of binding case law, and that arbitral proceedings will most likely not end up before the judiciary. He also stressed that party autonomy regarding confidentiality should be respected. According to him, arbitrators play a crucial role in handling evidence, and the use of AI tools is increasingly relevant. Finally, he noted that arbitrators must render awards within the scope of the parties’ requests, even when the proceeding involves public administration—though the discretionary powers of the administration must, of course, be preserved.

Conclusion

The VIII CAM-AMCHAM Congress provided a high-quality platform for debate on the current challenges and future directions of arbitration in Brazil. The panels and speeches offered a comprehensive 360º view of the institution, reaffirming arbitration’s maturity, flexibility, and capacity for innovation—while acknowledging the tensions that will continue shaping the field.

These very tensions and open questions may well guide the discussions at the next CAM-AMCHAM Congress, already scheduled for November 6th, 2026.