Corporate arbitration: the prevalence of the expression of will in the assessment of the subjective limits of the statutory arbitration clause in the business corporation

Abstract

The paper analyses the relationship between arbitration and Corporate Law, highlighting some of its intersections in order to understand to what extent the express manifestation of intention of the contracting parties limits the subjective scope of the efficacy of the arbitration clause in business corporations. It covers the conceptual features delimiting arbitration, objective arbitrability in its corporate contours, the manifestation of intention as an autonomous expression of arbitration and the characteristics of the arbitration clause, and then addresses the legislative development of the Corporations Act and Brazilian corporate arbitration. It deals with the inclusion of the clause upon incorporation of the company and its extension to those who did not positively express their acceptance, contrasting the majority-vote rule with the rule of express manifestation and examining the position of new shareholders from the standpoint of adhesion contracts. It holds that, besides concerning patrimonial and disposable matters, questions submitted to arbitration require consent, and that in every case involving the restriction of rights the interpretation of the parties' intention as to being bound by arbitration must be restrictive and not extensive.