Newsletter Edition 41 - November 2022


The space for third parties in arbitration

On November 22nd, during the webinar “Third Party Intervention in Arbitration”, promoted by the Arbitration Chamber (CArb) of ABPI’s Dispute Resolution Center (CSD-ABPI), the participants of the debate concluded that third parties, such as the amicus curiae, are welcome in the arbitration process. The event was mediated by the deputy director of the CSD-ABPI, Flávia M. Murad Schaal, and had the participation of the federal judge of the 5th Region Marco Bruno Miranda Clementino, and lawyer and arbitrator Rodrigo de Assis Torres. “The amicus curiae is very important for the legitimation of the arbitration decision”, said Miranda Clementino.

In his presentation, the federal judge addressed consensual issues and the risks of public administration intervention in the arbitration process. He welcomes the participation of the amicus curiae. “In the case of arbitration involving public administration, and there being a legal relationship of some complexity, it seems to me that the non-acceptance of the amicus curiae could compromise the arbitration decision”, he said.

For the judge, other interventions can be considered. “Being the third recipient of the decision, albeit indirectly and despite not having signed the arbitration agreement, I believe that it should be accepted in the arbitration”, he said.

Torres pointed out that the BPTO, as a third party, would need to adhere to the arbitration agreement beforehand to defend the public interest position. “It would be perfect for the BPTO to participate in a situation involving trademark or patent arbitration, which could be provided for in the arbitration agreement itself if the parties agree”.

In the scope of intellectual property, this type of intervention in arbitration, whether as amicus curiae or assistance, according to Torres, can be of great value in franchising contracts, brand coexistence, or technology transfer, among others.