BRAZIL Law and Practice Contributed by: Cláudio Finkelstein, Maria Isabel Gori Montes and Laura Martini Brevilieri, Finkelstein Advogados
13.4 Consolidation The BAA does not contain a general rule on the con - solidation of separate arbitral proceedings. Consoli - dation therefore depends primarily on party consent, the arbitration agreements and the rules chosen by the parties. In practice, consolidation may be possible where: • the parties have agreed to it; • the relevant arbitration agreements are compatible; • the proceedings arise from the same legal relation - ship or related contracts; • the claims involve common factual or legal issues; or • the applicable institutional rules so authorise. Several arbitral institutions active in Brazil regulate consolidation in their rules, including the CAM-CCBC, CAM-B3, ICC, CBMA and CAMARB. Depending on the applicable rules, consolidation may be decided by the institution, by the president of the chamber or by the arbitral tribunal. In a case concerning two related arbitrations before the CAM-B3, the São Paulo Court of Justice held that it is not for the judiciary to order the joinder of related arbitrations for joint decision. Since the applicable rules provided consolidation as a mere faculty of the chamber’s president, and the parties had bound them - selves to those rules, the court upheld the president’s discretionary refusal to consolidate, as a consequence of the negative effect of kompetenz - kompetenz (Civil Appeal No 1031861-80.2020.8.26.0100, 1st Reserved Chamber of Business Law, Rel Des Cesar Ciampolini, judgment of 30 June 2021). 13.5 Binding of Third Parties As a rule, an arbitration agreement and the resulting award bind only the parties and their successors (Arti - cle 31 of the BAA). In principle, third parties who did not consent to arbitration are not bound. Exceptional - ly, as noted previously, a non-signatory may be bound by the arbitration agreement where there is a basis to infer consent or otherwise to bind the third party. As to the ability to bind foreign third parties, this is a matter for the state courts rather than the arbitrators.
general ethical and professional standards, which may be reinforced by soft-law instruments. Arbitrators are governed by the BAA (in particular, Arti - cles 13 and 17), and may additionally be bound by the codes of conduct and ethical rules of the institution administering the proceedings. Brazilian lawyers are bound by the rules of the Bra- zilian Bar Association (OAB), namely the Statute of Advocacy (Law No 8,906/1994) and the OAB Code of Ethics and Discipline. These apply to Brazilian law - yers acting in arbitration, whether seated in Brazil or abroad, since the obligation follows the enrolled law - yer. Foreign lawyers are not subject to the OAB rules; their conduct is instead governed by the applicable institutional rules, the procedural framework and the rules of their own bar. In international arbitration, the conduct of counsel is also frequently guided by soft-law instruments, in par - ticular the IBA Guidelines on Party Representation in International Arbitration, and some institutions have their own codes of conduct applicable to participants in the proceedings. 13.3 Third-Party Funding Brazilian law does not expressly regulate or prohibit third-party funding in judicial or arbitral proceedings. Third-party funding is therefore generally permitted, subject to general principles such as good faith, trans - parency, party autonomy and freedom of contract. There is no statutory disclosure obligation. In arbitra - tion, however, the existence of a funding arrangement may need to be disclosed under institutional rules or established practice, mainly to allow conflicts of inter - est between arbitrators and funders to be assessed. Some Brazilian institutions already address the matter, providing for the disclosure of third-party funding pre - cisely for that purpose. This is consistent with interna - tional best practice, including the IBA Guidelines on Conflicts of Interest in International Arbitration, under which the funder may be treated as bearing the iden - tity of the funded party for conflict-checking purposes.
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