The National Electric Energy Agency (Aneel) approved, on February 14 of this year, the new Arbitration Convention of the Electric Energy Trading Chamber (CCEE), at the 4th Ordinary Public Meeting of the Board of Directors of 2023.
The text, which had been approved at the 68th Extraordinary General Meeting, becomes mandatory for CCEE and its agents, pursuant to article 44, sole paragraph of Aneel Normative Resolution 957/21[1].
The new convention is applicable to all arbitration proceedings instituted since March 1 of this year, pursuant to article 3 of Ratifying Resolution 3,173/23. [2] Its objective is to modernize the resolution of disputes in the electricity sector, especially to provide greater legal certainty and freedom to the agents operating in the segment.
There are novelties in relation to the rules previously in force, such as the plurality of chambers, the clarification on the delimitation of the conflicts that must be submitted to arbitration, the possibility of requiring the provision of guarantee in the context of the dispute and the creation of a repertoire of jurisprudence.
In response to the request of agents who pleaded for the plurality of arbitration chambers that could also decide disputes arising from the CCEE Arbitration Convention, the FGV Mediation and Arbitration Chamber will no longer have exclusivity for the resolution of disputes within the scope of the CCEE. Now, any approved arbitration chamber can be elected by the agents of the CCEE. At the time of writing, Camarb, CBMA, Ciesp-Fiesp and CAM-CCBC had already integrated the list of arbitration chambers approved by the CCEE.
The new arbitration convention further clarifies that arbitration is dispensable in bilateral conflicts that do not affect the rights of third parties and do not affect the operations of the CCEE. Nor are measures to collect amounts delinquent by agents or non-agents mandatory, which can be pleaded through the courts. This clarification is salutary and seeks to resolve doubts that hovered over the need to submit to the arbitration agreement of the CCEE disputes of a mere private nature that do not have repercussions on the operations of the CCEE.
The provision that the delivery of monetary guarantee may be required by the arbitral tribunal, in the event that the arbitration has a potential impact on other agents, complies with the principles of market security, in particular in the context of the expansion of transactions in the free energy market.
In addition, the creation of a repository of jurisprudence is welcome, with the approved arbitral chambers obliged to create a public repository of menus of the decisions of the disputes involving the agents of the CCEE, respecting the privacy of the parties and the confidentiality attributed to the procedures.
Given the exponential arrival of new players in the energy sector, it is possible that the number of conflicts between free consumers (wholesalers and retailers), traders and retail traders – who will be governed by the new rules – will increase. According to data provided by CCEE, "the number of agents associated with CCEE has been growing significantly since 2016, reaching in 2022 the mark of 13,386 registrations, a growth of 10.6% compared to 2021."[3]
In this context, the modernization of the convention, in addition to conferring greater autonomy and legal certainty to the parties, opens the door to the gradual opening of the power free market and, above all, moves towards the increased development of arbitration in the power sector.
It is worth remembering that the new convention repeals the Ratifying Resolution 531/07, previously in force. Only the arbitral proceedings that were in progress and/or the acts and facts that occurred during its validity remain under the rule of the old convention.[4]
[1] Art. 44. The Agents of the CCEE and the CCEE shall resolve, through the Arbitration Chamber, all disputes involving available rights, under the terms of the Law 9,307, of September 23, 1996, in the following cases: I – conflict between two or more CCEE Agents that does not involve matters under the direct competence of ANEEL or, in the event of dealing, has already exhausted all administrative instances regarding the object of the matter in question; II – conflict between one or more CCEE Agents and CCEE that does not involve matters under the direct competence of ANEEL or, in the event of treatment, has already exhausted all administrative instances regarding the subject matter of the matter in question; and III – without prejudice to the provisions of a specific clause in the CCEARs, a conflict between CCEE Agents arising from Bilateral Contracts, provided that the event giving rise to the divergence arises from the respective contracts or from Marketing Rules and Procedures and has repercussions on the obligations of the contracting agents within the scope of the CCEE. Single paragraph. The Arbitration Agreement is an integral part of this Marketing Convention, as well as binding on all agents of CCEE and CCEE, as provided for in §§ 5, 6 and 7 of article 4 of Law 10,848 of 2004.
[2] Art. 3 This Resolution enters into force on March 1, 2023.
[3] Balance of Consumption and Generation 2022. Analysis of generation and consumption between the energy contracting environment, in the comparison between the years 2022 and 2021 <https://www.ccee.org.br/web/guest/dados-e-analises/estudos-especiais>. Accessed 22.03.2023.
[4] Art. 2, sole paragraph, of Ratifying Resolution 3,173/23: "The acts and facts that occurred during the validity of Ratifying Resolution No. 531, of August 7, 2007, remain governed by it, including the ongoing arbitration proceedings instituted in its validity."
