Last 13th January 2025, the Centre for Arbitration and Mediation of the Brazil Canada Chamber of Commerce (“CAM-CCBC”), the biggest and oldest arbitral institution in Brazil, announced the approval of its new regulation (“Regulation”) on the early production of evidence (“Early Production of Evidence”).
This Regulation is based on the jurisprudential understanding, especially of the Superior Court of Justice, which recognized the arbitral jurisdiction for the processing of the early production of evidence without urgency, whenever an arbitration agreement has been established to settle disputes arising from a given contractual relationship (see here). By this measure, CAM-CCBC reinforces its commitment to best practices in the administration of appropriate conflict resolution methods.
Analysis
Some points of the new regulation are worth highlighting. Firstly, it is important to note that the Regulation is applicable to arbitration agreements concluded prior to its entry into force. Article 14 states that the Regulation “shall apply to requests for the early production of evidence made after its entry into force, regardless of the date on which the arbitration agreement was concluded.”
In addition, the Regulation correctly chose to clarify that, while the Early Production of Evidence without urgency will be administered according to the Rules, the urgent production of evidence must be carried out through the Emergency Arbitrator. Therefore, there are, from now one, two different arbitral proceedings for those different situations, depending on whether the production of evidence is related to an urgent situation.
Regarding the procedure, preference was given to a sole arbitrator (“Evidence Arbitrator”) (see Regulation, Article 4: “Unless otherwise expressly agreed between the parties specifically for the cases governed by these Rules, the PAP procedure shall be conducted by a sole arbitrator appointed in accordance with Article 13 of the ARB Rules”) and the stages for setting up the tribunal were shortened, with a total duration limited to 6 months, significantly faster than the usual length of a regular arbitration (see Regulation, Article 11: “The duration of the early taking of evidence shall not exceed a period of 6 (six) months from the signing of the Evidence Arbitrator’s Statement of Independence”). In addition, it is forbidden for the arbitrator of the evidentiary proceedings to act as the arbitrator of the main proceedings:
Regulation, Article 5: “Article 5. The evidentiary arbitrator may not act as arbitrator in an arbitration related to the facts that gave rise to the request for early production of evidence, unless otherwise agreed by the parties.” (Regulation, Article 5)
With regard to the powers of the Evidence Arbitrator, it is worth highlighting that he/she has the power to decide on the admissibility of the mechanism, i.e., he/she can analyse the existence and validity of the arbitration agreement, as well as the admissibility of the evidence to be anticipated (which excludes, for example, the anticipated production of illicit evidence). Specifically, Article 9 of the Regulation states the following:
“Article 9. The evidentiary arbitrator shall be responsible for: (I) deciding on his or her jurisdiction and on the existence, validity and scope of the arbitration agreement; (II) deciding on the admissibility of evidence, defining its contours and organizing the form of its production.”).
The Regulation also restricts the scope of the Early Production of Evidence to the substantive law applicable, limiting the Evidence Arbitrator’s powers, so that the mechanism isn’t a way of bringing Discovery to Brazilian practice. To make this matter clear, Article 9 specifically provides that the evidence shall be allowed in accordance with the substantive law applicable. After all, the Regulation is procedural in nature and does not create a right to Early Production of Evidence for legal relationships in which this right does not exist:
Regulation, Article 9: “The Evidence Arbitrator shall analyze the requirement of early production of evidence in light of the legal requirements provided in the substantive law applicable, taking in consideration, among other factors, the plausibility of the right of the party requesting the evidence, the requirements related to business and professional confidentiality, and trade secrets.”
From another perspective, it should also be noted that the Regulation is deliberately silent on the effect that the main arbitration has on the arbitration for the Early Production of Evidence, in case the defendant decides to quickly start a main arbitral proceeding, even before the conclusion of the Early Production of Evidence, this Regulation grants to the Evidence Arbitrator the power to either end the proceeding or to go forward with it, until the conclusion of the evidence production. This is conceived in order to avoid any manipulation of the Early Production of Evidence, which would be possible if the defendant could end it by simply starting the main arbitration. The CAM-CCBC was therefore right not to determine that the Early Production of Evidence is extinguished by the subsequent filing of the main arbitration (see Regulation, Article 13).
Lastly, the Regulation organizes the costs of Early Production of Evidence arbitrations based on 4 categories of case complexity, which serves precisely to match the work generated by the case with the amount to be paid by the parties. The total value ranges from R$70,000.00 (aprox. EU€ 11.100,00) for the cheapest price range to R$158,300.00 (aprox. EU€ 25.000,00) for the most expensive price range. These amounts, especially for large parties, are not excessive, which raises the prospect of recurring use of this type of arbitration.
Conclusion
The Early Production of Evidence as a preliminary arbitral proceeding in Brazil has its origin in legal procedural provisions that regulated it before Brazilian State Courts, alongside with Courts decisions recognizing the arbitral tribunal’s jurisdiction for this type of measure whenever an arbitration agreement has been made to settle disputes arising from a given contractual relationship. Arbitral institutions in Brazil are quickly responding to that orientation and CAM-CCBC has issued the most recent and complete regulation about it. It will most certainly open a new chapter in the development of Brazilian arbitral practice, with the extensive use of this preliminary arbitral proceeding, focused on the production of evidence, which might enable parties to self-composition or another appropriate means of resolving conflict or even allow them a prior knowledge of the facts to justify, avoid, or better prepare future arbitral proceedings.
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