The duty of disclosure has been the subject of debate by many jurists, especially arbitration scholars, as a result of Bill No. 3,293/2021 (“PL”), which aims to amend the Brazilian Arbitration Law to, among others, “ discipline the arbitrator’s performance”  and “ improve the duty of disclosure” .

As a way of complementing the duty to proceed with impartiality and independence provided for in art. 13, §6 of the Arbitration Law, art. 14§, 1st of the same law provides that:

  • 1º People appointed to act as arbitrator have the duty to reveal, before accepting the role, any fact that indicates justified doubt as to their impartiality and independence.

In the words of Selma Maria Ferreira  Lemes , the duty of disclosure “ is intended to demonstrate the non-existence of bonds of a social nature (close friend or close enemy), financial, commercial and kinship between the arbitrators and the parties” . Therefore, before accepting the appointment to act as an arbitrator – and throughout the entire arbitration procedure -, the professional must check for conflicts of interest, which may reveal possible relationships that could affect their independence and impartiality in the eyes of the parties to the arbitration procedure.

It should be noted that the Arbitration Law, in line with foreign legislation, provides that the doubt that entails the arbitrator’s duty of disclosure must be “justified”, an expression that takes into account any relevant data that is capable of generating discomfort and insecurity for the parties in having that professional judge the conflict between them. In other words, the fact to be revealed must denote a breach of trust between the parties in relation to the arbitrator – art. 13,  caput  of the Arbitration Law – and raise doubts regarding the possibility of obtaining a fair and impartial decision from the professional.

However, the purpose of the Bill is to replace the expression “justified doubt” with “minimum doubt”, a concept that is manifestly subjective and without any plausible justification or reason for being. In fact, this expression, if approved, could generate an obligation that would be difficult to fulfill by the professional appointed to act as arbitrator, who evidently has extensive social and professional relationships – it was not for nothing that he/she was appointed to that position – , and increase the number of frivolous allegations in relation to the arbitrator’s duty to judge the controversy with independence and impartiality, as required by law, in addition to requiring him to present revelations that are disconnected from reality and distant from the specific case .

The fact is that this concept goes against international references regarding the topic in vogue, especially art. 12(2) of the UNCITRAL Model Law (which inspired the Brazilian Arbitration Law) and the IBA Guidelines on Conflicts of Interest in International Arbitration, and must be – as has already been the case – fought, under penalty of generating greater uncertainty and legal insecurity in arbitration procedures, given the potential increase in the number of challenges for empty reasons, guerrilla tactics and annulment actions.