After discussing party autonomy and the possibility of choosing specialized arbitrators, we arrive at another element highly valued in business practice: confidentiality.
Although the Arbitration Act does not automatically impose confidentiality, it is very common for the arbitration agreement or the rules of the arbitral institution chosen by the parties to provide for such restriction of publicity. When this is the case, the advantage can be strategic: the proceedings, the names of the parties, and even the very subject matter of the dispute are kept out of the public eye, thereby preserving reputation, know-how, trade secrets, and the amounts in dispute—elements that, in highly competitive sectors, can be decisive for protecting the business.
In the construction industry in particular, this has a concrete impact. Large-scale projects—whether industrial, corporate, logistics-related, or private infrastructure—typically involve extensive technical documentation, internal performance assessments, execution flaws, productivity deviations, and debates over methodological choices.
Exposing such content in a public judicial proceeding may generate losses that go beyond the dispute itself: it can affect reputation, parallel negotiations, and may even impact the market value of the companies involved. For this very reason, confidentiality is regarded as one of the highlights of arbitral jurisdiction, allowing the parties to engage in dispute resolution with greater freedom and security in the production of evidence, without fear of external repercussions.
Confidentiality, however, is not compatible with all scenarios. For example, when public administration entities are involved in arbitration, the principle of publicity must be observed, as provided for in the Arbitration Act following its reform [1]. In such cases, to use the words of Joel Dias Jr., a form of “mitigated privacy” applies: the proceedings may retain a certain degree of internal confidentiality, but the public entity has a constitutional obligation to disclose information necessary to ensure transparency in its actions.
On the other hand, in disputes between private parties—which represent the majority of construction-related conflicts—confidentiality is not only possible but advisable. The rules of leading arbitral institutions in the market, such as the Market Arbitration Chamber (CAM) [2], CAMARB – Chamber of Business Mediation and Arbitration – Brazil [3], and Cames São Paulo [4], expressly address confidentiality, reinforcing this feature as a competitive advantage of arbitration in the business environment.
An important point is that such confidentiality may even be extended to the judiciary, for example when an arbitral award needs to be enforced. In this scenario, judicial secrecy may be preserved, provided that confidentiality was previously agreed upon and is duly demonstrated before the court [5].
From a strategic perspective, confidentiality protects negotiations, avoids exposure of internal practices, reduces reputational impacts, and prevents third parties from accessing sensitive business data.
In a sector where discussions on economic rebalancing, scope deviations, construction defects, and productivity can affect future contracts and the market’s perception of companies’ technical capacity, confidentiality becomes a strategic component of the dispute resolution method.
[1] Law No. 9.307, of September 23, 1996. “Art. 2º, § 3o Arbitration involving the public administration shall always be decided according to law and shall comply with the principle of publicity..”
[2] Rules of the Market Arbitration Chamber, 2011. “9.1 Confidentiality. Arbitration proceedings are confidential and all parties, arbitrators and members of the Arbitration Chamber shall refrain from disclosing any information relating to such proceedings except in compliance with the instructions or rules of regulatory bodies and with the applicable legislation.”.
[3] Arbitration Rules of CAMARB, 2019. “13.1 The arbitration procedure will be strictly confidential, and CAMARB, the arbitrators, other professionals involved in the case and the parties themselves are prohibited from disclosing any information to which they have access as a result of their work or participation in the process, without the consent of all parties, except in cases where there is a legal obligation to publicize and as provided for in these Rules.”
[4] Regulamento do Processo de Arbitragem (CAMES), 2023. “Art. 92. Os processos de arbitragem deverão transcorrer em absoluto sigilo, sendo vedado aos Árbitros, às partes e aos demais participantes do processo divulgar qualquer informação a que tenham tido acesso em decorrência de sua participação no processo, salvo se expressamente autorizado por todas as partes ou em caso de ordem judicial.”
[5] Law No. 13.105, of March 16, 2015. “Art. 189. Procedural acts are public; however, the following proceedings shall be conducted under judicial secrecy: IV – those concerning arbitration, including the enforcement of an arbitral letter, provided that the confidentiality stipulated in the arbitration is proven before the court.”.
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