ARBITRATING CORPORATE DISPUTES UNDER THE BRAZILIAN CORPORATIONS ACT
On 26 May 2015, Federal Law No. 13,129/2015 amended the Brazilian Corporations Act (Law 6,404/76) to include a new article regarding arbitration of corporate disputes. The purpose of such amendment to the Corporations Act was to: (i) regulate the choice of companies to resort to arbitration through the inclusion of arbitration clauses in the company’s bylaws; and (ii) offer more certainty to disputes involving shareholders and companies, representing an important step in the development of Brazilian corporate law and governance.
Despite the fact that since 2001 the Corporations Act expressly allowed Brazilian companies to include arbitration clauses in their bylaws, it was silent about whether shareholders who either expressly voted against the adoption of the arbitration clause or acquired shares after the inclusion of such arbitration clause in the bylaws would also be mandatorily subject to such arbitration clause.
Some Brazilian practitioners and scholars claimed that if a company decides, in a general meeting of shareholders, to include an arbitration clause to its bylaws, only the shareholders who expressly accepted the inclusion of the arbitration clause were bound by it. Hence, shareholders who acquired their shares after the inclusion of the arbitration clause to the company’s bylaws could not be forced to arbitrate their disputes, unless they sign a specific instrument of commitment accepting the arbitration clause. These opinions were based on the traditional principle that arbitration should be based on an express agreement of the parties and that the right to resort to Brazilian courts cannot be limited, except as the result of a clear and undisputed manifestation of will.
Jan-Mar 2016 issue