Arbitragem e energia no Brasil

Abstract

The electric industry encompasses the segments of energy generation, transmission, and distribution. It comprises intensive infrastructure investments and energy commercialization. Events related to energy transition and the integration of disruptive technologies have altered the sector’s landscape, requiring system flexibility and increased regulatory proactivity. Additionally, it demands structural, operational, and market changes. The sector is disruptive in terms of governance and operational, market, and legal aspects. In the 2000s, the introduction of competitive areas in the electric industry was the first step towards the use of arbitration, driven by regulatory reforms and in response to the country’s energy crisis, which also led to the first arbitration in the Brazilian electric sector involving the Public Administration. Law nº 10.848/2004 currently makes arbitration mandatory in energy trading contracts managed by the CCEE. Arbitration also finds space in other forms of energy negotiation, such as contracts for mini and micro-distributed generation and energy derivatives. The context of modernization increased renewable energy production and market opening create opportunities for arbitration expansion. There is also potential for further development in enabling relationships of capital-intensive electric industry activities. The paper provides data on the state of the art of these contracts in the Brazilian electric sector, indicating under what circumstances arbitration could enhance governance in the industry.