ARBITRATION AND PRIVATE AUTONOMY: CHALLENGES TO DELIMITING CONSENT

Gustavo Tepedino* & Francisco de Assis Viégas**

ABSTRACT: With the strengthening of arbitration and its enforcement in the late twentieth century, it became a central mechanism for the full development of international trade. One of the main bases of arbitration is the consent of the parts, meaning that the submission to arbitration should be based on the express, free and immaculate manifestation of will of the parties. Nevertheless, there is a lot of controversy about the meaning and scope of the arbitrational bond, notably on complex relations, in which it becomes tricky to assign the boundaries of consent.

KEYWORDS: arbitration; private autonomy; objective good faith; consent; subjective bond.

I. THE PATH OF ARBITRATION IN THE BRAZILIAN LEGAL CULTURE

As it is well known, arbitration is linked to private autonomy on a visceral level. For this reason, it consists of a cultural exercise for the improvement of the associative life concerning the free consent formulation and the respect for its efficiency. It is then, in a certain way, justifiable the distrust and hesitations related to its affirmation as a conflict resolution mechanism, especially in a society as the Brazilian one, which does not have an associationist tradition and in which the private autonomy is not sufficiently recognized as an expression of the equality and freedom principles.

From this perspective, it is significant that the constitutionality of the Arbitration Act (no 9.307, enacted on September 23rd, 1996) has been challenged in a long and well-known motion, which was only dismissed by the end of 2004 by the plenary of the Brazilian Supreme Court, when the suspicions of unconstitutionality have been finally withdrawn. In the Court decision, the possibility and the limits to the waiver of the State jurisdiction – whose access is assured by art. 5, XXXV, of the Brazilian Federal Constitution – due to an arbitration clause or arbitral submission agreement, and the consequent delegation of the judicial authority to private arbitrators for conflict resolution, have been debated.[1]

Among the sometimes covert and nonexplicit grounds against arbitration as an alternative procedure to judicial relief, stands out the fear that the increase of arbitration procedures arises from the neoliberal ideological perspective that takes out from the State one of its core roles. Such rationale is strengthened in the Brazilian experience where, due to a number of historical reasons, in people’s perception, social progress and progressive ideologies are associated to a strong State intervention, assigning only to the State, and not to all private economic agents, the duty to neutralize social inequality and to promote fundamental freedoms.

Nevertheless, following the development of society and the exercise of citizenship, an explosion of claims is seen in the whole Western world, to the point where the present time is nominated as the Age of the right to have rights.[2] In this scenario of the exercise of rights, it becomes crucial to retreat the exclusivity to relief from the State, promoting alternative forms of dispute resolution, which are able to settle the exponential growth in the number of disputes. The 2015 Brazilian Civil Procedure Code confirms this trend by encouraging alternative forms of dispute resolution. In fact, although arbitration is ruled by Act 9.307/1996, the Civil Procedure Code brings forth important impacts on all legal arbitration-related procedures, contributing to the development of arbitration in Brazil. For instance, art. 189, IV, of the Civil Procedure Code, sets forth in camera proceedings for all legal arbitration-related procedures, including in the enforcement of the arbitration award, provided the parties have stipulated confidentiality for the arbitration proceedings. It is further decreed the rules of the ‘Arbitration Letter’ (art. 237, IV), which enables any Judiciary Court to perform or order the performance, within its territorial jurisdiction, an act which is subject of the request for judicial cooperation formulated by an arbitral tribunal, as a bench warrant or the search and seizure of documents (art. 237, IV). Another example is the provision of art. 485, VII, under which lawsuits may be dismissed, not only when the arbitration agreement alleged by the defendant is acknowledged, but also when the arbitration tribunal has already declared itself competent to decide the matter. 

In this regard, it should bestressed the need for a profound cultural change in order to include arbitration in the legal day-to-day practice since the free and mutually consented formation of the arbitration agreement represents the best guarantee of the arbitration award efficiency, able to satisfy the social and economic purpose of solving disputes in a time and costs optimized way.[3] Attention is then turned to the review of what would be the consent necessary to create the binding effect of the arbitration agreement. This issue fuels an intense debate since it has been noticed that more than a third of all international arbitration cases in these last years cover issues related to non-signatory parties, groups of companies and groups of contracts.[4] In the Brazilian legal system, the objective good faith arises as an element of great significance in the contractual relation construction, being sometimes crucial to delimit the consent of the parties in relation to the arbitration agreements.

II. EFFECTIVENESS OF ARBITRATION AGREEMENTS AND THE CENTRAL ROLE OF OBJECTIVE GOOD FAITH

The strengthening of arbitration by the end of the 20th Century as an ordinary and fundamental mechanism for the full development of international trade and economy[5] has entailed the understanding that the submittal to the arbitration procedure should be grounded on a written, free and unspoiled manifestation of will by the contracting parties.[6]  In Brazil, legal controversies arise from the understanding of the meaning and reach of the arbitration agreement. Article 3 of the Act 9.307/96 refers explicitly to the arbitration agreement as a type of instrument to which both the arbitration clause and arbitration agreement are framed.[7] It is understood as arbitration clause the contractual provision through which contracting parties agree to submit to an arbitration tribunal any eventual and future disputes, waiving, though, to resort to the Judiciary; having full binding effects and, for such reason, as it is included in the contract, it replaces the need to sign an arbitration agreement.The arbitration agreement, on its turn, is a legal transaction that, although with the same scope of the arbitration clause, i.e., to ascribe the adjudication of the case to an arbitration tribunal, it is entered into after the dispute has arisen.[8]

Some regulations provide that the arbitral submission agreement is a mandatory stage. A not always clear situation arises from this, as if another element or requirement has been created for the effective establishment of the arbitration proceedings, defying the full effectiveness of the arbitration clause previously agreed upon. In any case, a reasonable agreement has been reached among scholars in the sense that an agreement including an arbitration clause waives the arbitral submission agreement, heralding then the full effectiveness of the arbitration agreement.[9]

On the other side, it has been debated the border between what has been called as an enforceable arbitration clause and unenforceable arbitration clause. The later would not include all the elements necessary for assuring its effectiveness,[10] lacking its fundamental aspects, such as the way to establish the arbitration or the adoption of rules of a specialized entity in order to put forward the proceedings. In an enforceable arbitration agreement, on the other hand, it would be included all the parameters for the appointment of arbitrators or the adoption of institutional rules, dispensing the addition of an arbitral submission agreement.[11] In this scope, the principle of objective good faith assumes special relevance, in order to guide the interpreter in reviewing the binding effect of the arbitration clause upon the parties.

In other words, the interpreter should analyze, in light of the general clause of objective good faith and the circumstances of the case in hand, to what extent the parties have effectively made the minimum agreement essential to the submission of the dispute to arbitration. Clearly good faith is not enough to create the mandatoriness of the arbitration clause for the mere fact that it has been signed, to enforce its specific execution in the presence of the elements of the transaction that, from the standpoint of the parties’ interest, are deemed as essential and that, sometimes, have not turned out to be an agreed matter.[12]

III. VERTICAL SUBJECTIVE SCOPE OF THE ARBITRATION AGREEMENT

Notwithstanding the essential character of consent for the arbitration establishment, it is currently seen, especially in European Arbitration Courts, a patent enlargement of the concept of the parties to arbitration,[13] arising therefrom a seeming paradox. On the one hand, the need for overcoming formalist theories that ascribe a narrow construction of the arbitration agreement, putting aside the complexity of business relations in the contemporary world, is being asserted. On the other hand, the requisite consent to the establishment of the arbitration proceedings is advocated. Arising therefrom there is the need for inquiring the subjective limits of the vertical and horizontal scope of the arbitration agreement. Vertical subjective scope refers to cases such as the one of the shareholders’ agreement in a company inserted in a corporate control chain. The matter has been the subject matter of a broad examination of the precedent by the International Chamber of Commerce (ICC), as treated in detail hereinbelow.

Not rarely, the breach of the shareholders’ agreement of a certain affiliated or subsidiary company – inserted in the corporate chain where there is a number of affiliated or subsidiary companies – leads to noncompliance of the shareholders’ agreement of companies positioned at the higher corporate levels. Such agreements, although entered into with legally distinct companies, provide for both rights and duties going beyond the scope of a specific company to embrace all subsidiary companies. In this case, it is debated how the harmed shareholder as regards the shareholders’ agreement of an affiliated or a subsidiary company can, by way of an arbitration – provided that in the shareholders’ agreement there is a provision for an arbitral submission agreement – to be refunded or to take the steps required to restore the agreement to its original form. It can be noticed that in each shareholders’ agreement, there is an autonomous arbitration clause, so that, assuming that there is a provision for the appointment of an arbitrator by both parties in dispute, each company in the corporate chain might appoint a member of the Arbitration Tribunal and  discuss the pertinent issues in the scope of each agreement, which would make, in practice, the discussionunviable,  suscetible to disparate decisions and to the violationg of the principles of arbitration effectiveness and utility.

In these cases, where a number of companies are under common control, giving space to an economic common purpose among the various entities, the ICC precedents consider as a single Respondent party the controlled companies and the parent company, ascribing to them the same legal treatment.[14] It is worth mentioning that in this case there is a unity of interest or of legal position among the parent company and its affiliated or subsidiary companies, so that the group of companies earns a legal relevance, obliging us to take them as an unit, although each company preserves its own legal personality. Thus, it is accepted to debate, in the arbitration established to review the shareholders’ agreement in force in a lower corporate level, all such unfolding events and knock-on noncompliance effects, as, for instance, the voting for a new executive committee members for a certain subsidiary company in violation of the rights of one shareholder to appoint part of the Board of Directors, entailing a simultaneous violation of shareholders’ agreements of companies present at higher corporate levels. To give utility to the arbitration in cases where there are economic groups involved, many times the discussion is reduced to the shareholders’ agreement of the subsidiary or affiliated company, subjecting the economic group as a whole to the same discipline.[15]

In this line of thought, a groundbreaking extension of the arbitration clause set forth by another group member in the ICC Case n. 1434 to bind non-signatory companies.[16] The contract analysed by the ICC opposed B to company A, a group member. Throughout all the contracting negotiation stages, group A presented itself as a true economic unit, reason why B was not interested in knowing the vicissitudes of the group it was transacting with. The Tribunal stated that the consent by other companies was implicit and indicated by the intention of the contracting parties themselves, translated into the president of the group who was constantly and informally taking part in the negotiations.[17]-[18]

In the attempt of determining the parties’ will, not only the behavior indicates the assent with the arbitration proceedings, but also, as some Tribunals consider, sometimes the existence of a group of companies may entail the presumption of consent. Although it is not an absolute presumption, but rather a circumstantial evidence of submission to the arbitration proceedings, which may be disregarded due to other circumstances, the orientation seems shortly cautious, because it disregards the autonomy that, as a matter of principle, must regulate the orientation of each company as for signing the arbitration agreement. From this perspective, i.e., tempering the extension of the arbitration clause based on the theory of the corporate group, some decisions stress the need to observe other elements besides the mere existence of the group, as so well explained in the arbitral award to ICC Case n. 6519.[19] As shown in the legal doctrine, the Tribunal must extract from the circumstances of the negotiation the manifestation — even though not expressed — of consent by whom it is intended to bind to the arbitration clause, based on the assumption that it does not seem possible to take part in the arbitration proceedings not having consented with it.[20]

IV. HORIZONTAL SUBJECTIVE SCOPE OF THE ARBITRATION AGREEMENT

Another kind of controversy relates to the horizontal subjective scope, i.e., the extension of the arbitration clause to parties that directly or indirectly take part in the negotiation of the contract, even though they had not signed it or they were not included as contracting parties. In this sense, ICC Case n. 6769 is particularly relevant. In such case, the discussion was focused on the contractual relation between X and Y, in which X needed a performance by Z (delivery of certain goods which features were detailed in a document attached to the contract) in order to fulfill its obligation. Although the document attached to the contract had Z’s signature, it was understood the Z’s manifestation in the negotiations between the parties was limited to clarify some technical issues about its performance and that its behavior upon the conclusion and performance of the contract was not enough to jump to the conclusion that it intended to be subject to the arbitration clause. In the case, it was highlighted the importance of the expression of will specifically oriented to the arbitral submission agreement in order to make such an extension.[21]

In the ICC Case n. 17669, on its turn, it was analysed a concession contract in which two respondents (A and B), although non-signatories, appeared as beneficiaries of the contract. Also, Respondent A was mentioned in the contract as a beneficiary of a portion of claimant’s revenue, and respondent B, although not mentioned as beneficiary, had been the original contracting party in the concession, having received a part of the revenue for many years. The Arbitration Tribunal has judged both non-signatory respondents as bound by the arbitration agreement, not only because they appeared as third-party beneficiaries,[22] but also because they had directly acted in the contractual relation scope, collecting and receiving payments.[23] It is noteworthy, above all, the conclusion that the assessment as to the participation of a third party in the concession contract and, consequently, its binding effect for the arbitration agreement, relates to the interpretation of the contract “as well as the circumstances of how the Concession Agreement were handled in practice.”[24]

Still, in the scope of horizontal subjective extension, there is the resistance of minority shareholders to the arbitral submission assumed by resolution in the shareholders’ meeting, based on the majority principle which regulates corporations.[25]

V. CONCLUSIVE NOTES

The reflexion about the tension existing between arbitration and private autonomy reveals itself as a troubled one, as the private jurisdictionis intrinsically linked to free consent, although the interpretation of will cannot be formalist, under penalty of sacrificing the expression of will as stated and understood – through expectations raised by the agents’ behavior – in the contractual relations. Based on this rationale, the importance of the objective good faith in delimiting consent, from entering into the arbitration agreement through the definition of arbitrability among individuals and companies belonginh to the same economic group (vertical arbitrability) or that have taken part in the negotiations relating to the entering into contract submitted to an arbitration tribunal (horizontal arbitrability).

 From that standpoint, it was seen that the written provision for the arbitration agreement does not constitute an absolute obstacle to its extension to non-signatory parties, provided that it can be squeezed out from the dealings and negotiations previous to entering into contract or having regulated such entering into contract, in light of the objective good faith principle, the free consent to the establishment of the arbitration proceedings. The conclusion is not incompatible with the teleological interpretation of the Arbitration Act, since the extension of the arbitration clause to non-signatory parties is only justifiable when it is tacitly or implicitly shown the will to submitting to an arbitration tribunal future conflicts of interest.

REFERENCES

Araújo, Nadia de.; Souza Jr., Lauro da Gama e. “Arbitragem internacional nos contextos interamericanos e brasileiro”. Revista Brasileira de Arbitragem, vol. 0  (2003).

Bonilha, Márcio Martins. “Do efeito vinculante da cláusula arbitral”. Revista de Mediação e Arbitragem, n. 3 (2004).

Braghetta, Adriana. “Cláusula compromissória: autossuficiência da cláusula cheia”. In: Doutrinas Essenciais: Arbitragem e Mediação, vol. 2 (São Paulo: Revista dos Tribunais, 2014).

Carmona, Carlos Alberto. “O processo arbitral”. Revista de Arbitragem e Mediação, n. 1. (2004).

Carvalhosa, Modesto. Comentários à Lei de Sociedades Anônimas (São Paulo: Saraiva, 1998).

Craig, W. Laurence; PARK, William W. & Paulsson, Jan. International Chamber of Commerce Arbitration (New York: Oceana Publications, 2000).

Derains, Yves & schwartz, Eric A. A Guide to the New ICC Rules of Arbitration (The Hague: Kluwer Law International, 1998).

Hanotiau, Bernard. “Groupes de sociétés et groupes de contrats dans l’arbitrage commercial international”. Revista de Arbitragem e Mediação, n. 12 (2007).

_____. “Non-signatories, Groups of Companies and Groups of Contracts in Selected Asian Countries: A Case Law Analysis”. Journal of International Arbitration, 2015, vol. 32, n. 6.

_____. “Problems Raised by Complex Arbitrations Involving Multiple Contracts-Parties-Issues – An Analysis”. Journal of International Arbitration, vol. 18, n. 3 (2001)

Lynch, Katherine. The Forces of Economic Globalization: Challenges to the Regime of International Commercial Arbitration (Kluwer Law International, 2003)

Nunes Pinto, José Emilio. “A cláusula compromissória à luz do Código Civil”. Revista de Arbitragem e Mediação, n. 4 (2005).

Pereira, Caio Mário da Silva. Instituições de Direito Civil. Vol. III (Rio de Janeiro: Forense, 2016)

Rodotà, Stefano. Il diritto di avere diritti (Roma-Bari: Laterza, 2012).

Wald, Arnoldo. “Os meios judiciais do controle da sentença arbitral”. Revista de Arbitragem e Mediação, n. 1 (Rio de Janeiro: Editora Revista dos Tribunais, 2004).

* Full Professor of Private Law at the University of the State of Rio de Janeiro (UERJ). Dean of the School of Law of the University of the State of Rio de Janeiro (from 1996 to 2000). President of the Brazilian Institute of Private Law (Instituto Brasileiro de Direito Civil - IBDCivil). Founding partner of Gustavo Tepedino Advogados.

** Professor of the Postgraduate Course in Contract Law and Tort Law at the Brazilian Law School (Escola Brasileira de Direito - EBRADI). Master’s degree in Private Law at the University of the State of Rio de Janeiro. Member of the Brazilian Institute of Private Law (Instituto Brasileiro de Direito Civil - IBDCivil). Lawyer at Gustavo Tepedino Advogados.

[1] In such decision, the Brazilian Supreme Court has judged as in accordance to the constitution the waiver to State jurisdiction, provided that it is limited to matters referring to property rights, as established by Act 9.307/96, Art. 1. The decision awarded by the Brazilian Supreme Courts reads as follows: “Constitutionality stated by the plenary, considering the Court, in a majority voting, that the manifestation of will by the party in the arbitration clause upon entering upon a contract, and the lawful permission given by the judge to replace the non-complying party’s will to sign the agreement do not injure art. 5, XXXV, of the Brazilian Constitution” (STF, Pleno, AgRg na SE 5.206/EP, Rel. Min. Sepúlveda Pertence, julg. 12.12.2001).

[2] RODOTÀ, Stefano. Il diritto di avere diritti, Roma-Bari: Laterza, 2012, passim.

[3] It is meant as a reaction to the trend, noticed since the 70’s, of jurisditionalisation of dispute settlement exponentially increasing the claims brought to the Judiciary. In Brazil, it is noticed the escalation of the phenomenon especially since the 90’s, following the enactment of regulations that, inspired by the guidelines set forth by the Brazilian Constitution, enlarged the access to the court system as an expression of citizenship exercise. It is enough to think back to the impact of the Consumer Protection Code (Act 8.078/90) on the jurisdictional activity. Nowadays, contrarily, it would happen just the converse: firstly people apply for an out-of-court resolution and, in the last resort, people file  lawsuits in traditional courts. This is similar to what happens in the contractual scope, where it is sought to authorize private action in order to deconstitute legal relations without a court relief, in case of provision of written defeasance clauses.

[4] This is Bernard Hanotiau’s perception. On the subject, the writer states: “The scenarios are diverse, but they frequently involve one of the following questions: is it possible to join and decide together in one arbitral procedure all the disputes which arise from the various contracts relating to the same project or to decide under the arbitration clause contained in one contract disputes arising under one or more related agreements; or in the context of a group of companies, whether one or more entities which belong to the group may be properly considered to be parties to the arbitration agreement even though they have not signed formally the contract containing the arbitration clause” (HANOTIAU, Bernard. Non-signatories, Groups of Companies and Groups of Contracts in Selected Asian Countries: A Case Law Analysis. Journal of International Arbitration, 2015, vol. 32, n. 6, p. 571).

[5] This is observed by LYNCH, Katherine. The Forces of Economic Globalization: Challenges to the Regime of International Commercial Arbitration. Kluwer Law International, 2003, p. 1.

[6] In this sense the Superior Court of Justice, when considering as a “key principle of our legal system” the requirement of “express acceptance by the parties to submit to arbitration the resolution of disputes arisen from private contractual legal transaction” (STJ, Corte Especial, SEC 967/GB, Rel. Min. José Delgado, julg. 15.2.2006). In another decision, the Court has highlighted that the manifestation of will as to an arbitration agreement binds the parties “provided that there is a express and specific consent as to the arbitration clause” (STJ, Corte Especial, SEC 978/GB, Rel. Min. Hamilton Carvalhido, julg. 17.12.2008). It is noteworthy, though, a recent STJ guideline in the sense that “the arbitration clause through which the parties agree to submit eventual and future disputes to arbitration is autonomous in reference to the underlying contractual relation. Thus, the analysis of the existence, validity and effectiveness of the arbitration agreement is not mixed up with the contract that it relates to. And, under a formal outlook, the only requirement webbed by the law regulating the establishment of the arbitration agreement, through the arbitration clause – to the exception of adhesion contracts –, is that it is made in written, either as a clause included in the contractual instrument itself or in a separate document (...). The expression of the parties’ will, with the specific purpose of agreeing with the arbitration agreement, may be made, as well, under a number of forms, and not only by way of the parties signing the document in which it is included, as inadequately understood by the lower Court. It is absolutely possible to assess, consequently, based on the scope of negotiations conducted by the parties, if they effectively have agreed upon the arbitration agreement” (STJ, 3ª T., REsp 1.569.422/RJ, Rel. Min. Marco Aurélio Bellizze, julg. 26.4.2016). In legal scholarship, there are many manifestations revering consensualism in the formation of the arbitration procedure. As an example: “The arbitration doctrine is grounded on the autonomy of will and the private autonomy, which constitutes, in the scope of subjective rights, the power to self-ruling and the self-discipline of property interests” (CARVALHOSA, Modesto. Comentários à Lei de Sociedades Anônimas. São Paulo: Saraiva, 1998, p. 302). Also on this subject, see HANOTIAU, Bernard. Groupes de sociétés et groupes de contrats dans l’arbitrage commercial international. Revista de Arbitragem e Mediação, n. 12, 2007, p. 116.

[7] “Art. 3. The interested parties may submit their disputes to arbitration by means of an arbitration agreement, which may be in the form of either an arbitration clause or an arbitration agreement.”. The Civil Procedure Code enacted in 2015, aware of the issue, mentions the “arbitration agreement” in the following articles: 260, § 3; 337, X, and §§ 5 and 6; 485, VII; 1.015, III. As it is noticed from the recitals, the legislator has purposely chosen the terms: “In adequate moments, we have used the expression. “arbitration agreement”, including both the arbitration clause and the arbitral submission agreement, framing both phenomena by the same legal system” (Exposé de motifs, p. 32. Available on https://www.senado.gov.br/senado/novocpc/pdf/Anteprojeto.pdf, seen on 3.2.2017).

[8] Legal scholarship and case law establish the differences between the legal instruments: “By the arbitral submission agreement, the parties interested in the resolution of disputes, either filed with a court or not, choose the arbitrators to solve it. (...). There is a fundamental distinction between the arbitral submission agreement and the so-called arbitration clause, very frequently included in the contracts. Under it, which is a mere pre-engagement, the parties have established that, in case of a future dispute, the parties shall submit to an arbitration tribunal” (PEREIRA, Caio Mário da Silva, Instituições de Direito Civil, vol. III. Rio de Janeiro: Forense, 2016, p. 486). In case law, similar terms are used to set the difference: “Both types of arbitration agreement, to wit, the arbitration clause and the arbitral submission agreement, give rise to an arbitration procedure, as in both instruments the parties agree to submit to an arbitration tribunal eventual disputes relating to the performance of a contract. The difference between the two types of instruments consist on the fact that, while the arbitral submission agreement is designed to submit to an arbitration tribunal a solid dispute already arisen between the parties, the arbitration clause aims at submitting to an arbitration tribunal only indeterminate and future disputes, which may rise during the performance of the contract” (STJ, Corte Especial, SEC 1.210/GB, Rel. Min. Fernando Gonçalves, julg. 26.6.2007).

[9] In this sense, see WALD, Arnoldo. Os meios judiciais do controle da sentença arbitral. Revista de Arbitragem e Mediação, n. 1. Rio de Janeiro: Editora Revista dos Tribunais, 2004; ARAÚJO, Nadia de. SOUZA JR., Lauro da Gama e. Arbitragem internacional nos contextos interamericanos e brasileiro. Revista Brasileira de Arbitragem, vol. 0, 2003; CARMONA, Carlos Alberto. O processo arbitral. Revista de Arbitragem e Mediação, n. 1., 2004; BONILHA, Márcio Martins. Do efeito vinculante da cláusula arbitral. Revista de Mediação e Arbitragem, n. 3, 2004; NUNES PINTO, José Emilio. A cláusula compromissória à luz do Código Civil. Revista de Arbitragem e Mediação, n. 4, 2005.

[10] BRAGHETTA, Adriana. Cláusula compromissória: autossuficiência da cláusula cheia. In: Doutrinas Essenciais: Arbitragem e Mediação, vol. 2. São Paulo: Revista dos Tribunais, 2014, pp. 33-42.

[11] STJ, 3ª T., REsp 1.389.763/PR, Rel. Min. Nancy Andrighi, julg. 12.11.2013.

[12] As it is noted by José Emílio Nunes Pinto, “the mere inclusion of an arbitration clause is not sufficient  to establish the arbitration proceedings. It is necessary to resort to the arbitral submission agreement in order to ensure the proceedings regularity and to keep the arbitration award free from any defects which could otherwise give rise to causes for future annulment” (NUNES PINTO, José Emilio. Contrato de adesão. Cláusula compromissória. Aplicação do princípio da boa-fé. A convenção arbitral como elemento de equação econômico-financeira do contrato. Revista de Arbitragem e Mediação, vol. 10, 2006, pp. 234-242).

[13] As it is noticed by Bernard Hanotiau, the concept of party is detached from the one of signatories of the arbitration clause: “It should first be pointed out that in a multiparty situation, the parties to the arbitral proceedings will not necessarily be all the parties bound by the arbitration clause; and conversely, there may be parties to the arbitral proceedings who were not parties to the original arbitration clause or at least not signatories of the contract in which it was included” (HANOTIAU, Bernard. Problems Raised by Complex Arbitrations Involving Multiple Contracts-Parties-Issues – An Analysis. In: Journal of International Arbitration, vol. 18, n. 3, 2001, p. 25; p. 395).

[14] This is the conclusion reached by Yves Derains and Eric A. Schwartz when reviewing International Chamber of Commerce precedents: “(...) there are many cases with multiple parties that are not necessarily true multi-party arbitrations, e.g., where multiple Respondents are under common control or otherwise have identical interests in the outcome of the arbitration. In such a case, the multiple entities concerned might more properly be seen as forming, in reality, a single Respondent party, and there would not seem to be any legitimate reason why they should not normally be expected to agree upon an arbitrator” (DERAINS, Yves; SCHWARTZ, Eric A. A Guide to the New ICC Rules of Arbitration. Haia Kluwer Law International, 1998, p. 172).

[15] In this sense, please see the following ICC precedent: “A similar result was obtained in ICC Case 1434, where the concept of the corporate group was likewise applied to hold corporate entities bound to an arbitration clause contained in a contract they had not signed” (CRAIG, W. Laurence; PARK, William W.; PAULSSON, Jan. International Chamber of Commerce Arbitration. New York: Oceana Publications, 2000, p. 78). Other ICC precedents illustrate the same guidelines, as in the award to the case nº. 5103: “Les trois sociétés demanderesses, lors de la conclusion, l’exécution, l’inexécution et la renégociation de relations contractuelles entretenues avec (les défenderesses), apparaissent selon la commune volonté de toutes les parties à la procédure comme ayant été de véritables parties à l’ensemble de ces contrats. Cette analyse s’appuie, dans sa lettre et dans son esprit, sur une tendance remarquée et approuvée de la ‘jurisprudence arbitrale’ favorable à la reconnaissance, dans de telles circonstances, de l’unité du groupe (...). Le Tribunal arbitral estime qu’en l’espèce les conditions de la reconnaissance de l’unité du groupe sont remplies, les sociétés composant celui-ci ayant toutes participé, dans une confusion aussi réelle qu’apparente, à une relation contractuelle internationale complexe dans laquelle l’intérêt du groupe l’emportait sur celui de chacune d’elles. La sécurité des relations commerciales internationales exige qu’il soit tenu compte de cette réalité économique et que toutes les sociétés du groupe soient tenues ensemble et solidairement des dettes dont elles ont directement ou indirectement profité à cette occasion” (Award to the case n.º 5103, 1988. In: JARVIN, Sigvard; DERAINS, Yves; ARNALDEZ, Jean-Jacques. Collection of ICC Arbitral Awards, vol. II. London: Kluwer Law International, pp. 366-367). As noted by Bernard Hanotiau, “when the project which is at the heart of the dispute has been negotiated and performed by one or more companies which belong to a group of companies (e.g., with a parent and subsidiary relationship) and/or by one or more individuals, some or all of which have not formally signed the arbitration clause or the contract containing this clause, the issue arises as to whether such non-signatories may be properly considered to be parties to the arbitration agreement (HANOTIAU, Bernard. Non-signatories, Groups of Companies and Groups of Contracts in Selected Asian Countries: A Case Law Analysis. Journal of International Arbitration, 2015, vol. 32, n. 6, p. 572).

[16] “A similar result was obtained in ICC Case no. 1434, where the concept of the corporate group was likewise applied to hold corporate entities bound to an arbitration clause contained in a contract they had not signed” (CRAIG, W. Laurence; PARK, William W; PAULSSON, Jan. International Chamber of Commerce Arbitration, cit., p. 78).

[17] The arbitration award reads as follows: “Il serait contraire à tout principe d’interprétation, raisonnable, à la volonté commune des parties et à l’esprit de toute l’opération que d’attacher une importance prépondérante à la lettre de telle ou telle de ces rédactions, et aux variations ou même incohérences des formules utilisées dans les divers contrats. (...) Dans ces conditions, il y a lieu de s’en tenir à l’idée, conforme à l’esprit des contrats comme à la réalité économique, que ni le groupe A, ni son président ni telle ou telle des sociétés membres de ce groupe, ne peuvent s’abriter derrière la rédaction de telle clause particulière, interprétée littéralement et isolée du contexte de l’ensemble des accords, pour demander à être mise hors de cause dans un litige qui concerne directement le groupe ou l’organisation A. Ceci à moins qu’il ne soit établi dans un cas donné, par celui qui s’en prévaut, qu’une interprétation formaliste s’impose et correspond à la volonté réelle des parties, interprétée de bonne foi, et à l’esprit de l’opération. Des observations analogues doivent être faites en ce qui concerne la question particulière de l’engagement d’arbitrage” (JARVIN, Sigvard; DERAINS, Yves; ARNALDEZ, Jean-Jacques. Collection of ICC Arbitral Awards, vol. I. Deventer: Kluwer Law and Taxation, p. 264). On the same point, the award to ICC Case n. 2375/1975 is based: “comme dans la sentence rendue dans l’affaire nº 1434, les arbitres privilégient ici l’unité économique du groupe par rapport à son pluralisme juridique” (JARVIN, Sigvard; DERAINS, Yves; ARNALDEZ, Jean-Jacques. Collection of ICC Arbitral Awards, vol. I, cit., p. 261).

[18] The search for a common will of the parties has also guided the Tribunal entering the award to Dow Chemical case (ICC Case 4131), probably the most well-known example of extension of the arbitration clause based on the theory of corporate groups. In this case, four companies composing the Dow Chemical group requested the case to be submitted to arbitration against Isover Saint Gobain French company, aiming at making the company liable for damages caused in the performance of distribution contracts among Isover Saint Gobain and two companies members of Dow Chemical Group (Dow Chemical Company and Dow Chemical Europe). Such contracts included arbitration clauses and, although Dow Chemical AG and Dow Chemical France companies had not signed the contracts and the respective arbitration agreements, they also appeared as claimants in the request to submission to arbitration, since: (i) Dow Chemical AG, subsidiary of Dow Chemical Company, would be liable for the organization of the worldwide system of sales of the product exploited by the economic group; and (ii) Dow Chemical France would have effectvly participated in the performance of the contracts entered into with Isover Saint Gobain, since there was a contractual provision stating that the deliveries could be made by Dow Chemical France or any other company member of Dow Chemical group. On its turn, Isover Saint Gobain, defending itself, argued the active illegitimacy of Dow Chemical AG and Dow Chemical France companies, which were not parties to the arbitration agreement. The Arbitration Tribunal, requested to decide on the submission of such companies to the arbitration proceedings, has rejected the preliminary arguments, considering that the challenged companies were members of Dow Chemical Group and had actually taken part in the negotiations, the performance and termination of the contracts, with the implicit consent by the parties (including Isover Saint Gobain’s consent). Thus, according to the Arbitration Tribunal, both should be considered contractually bound to the French company: “In reality, all the entities of the Dow Group involved in distribution in France understood themselves to be contracting with the distributor or distributors in France. (…). Considering, in particular, that the arbitration clause expressly accepted by certain of the companies of the group should bind the other companies which, by virtue of their role in the conclusion, performance, or termination of the contracts containing said clauses, and in accordance with the mutual intention of all parties to the proceedings, appear to have been veritable parties to these contracts or to have been principally concerned by them and the disputes to which they may give rise” (JARVIN, Sigvard; DERAINS, Yves; ARNALDEZ, Jean-Jacques. Collection of ICC Arbitral Awards, vol. I, cit., p. 150).

[19] The award reads as follows: “C’est dire qu’il serait excessif de considérer que la signature d’une clause d’arbitrage par une société membre d’un groupe engage nécessairement toutes le sociétés du groupe; en revanche, il serait dans bien des cas tout à fait artificiel et contrarié à la réalité économique de limiter pour des raisons purement formelles les effets de la clause d’arbitrage à la société qui l’a signée, lorsque, dans la pratique, d’autres sociétés membres du groupe ont été, au même titre que la société signataire, et parfois au-delà, les véritables acteurs.” (ARNALDEZ, Jean-Jacques; DERAINS, Yves; HASCHER, Dominique. Collection of ICC Arbitral Awards, vol. III. London: Kluwer Law International, 1998, p. 424).

[20] As Bernard Hanotiau states: “when a court or an arbitral tribunal has to determine who is a party to an arbitration agreement, it will first determine – with more or less formalism – who has consented to the agreement” (HANOTIAU, Bernard. Problems Raised by Complex Arbitrations Involving Multiple Contracts-Parties-Issues – An Analysis, cit., p. 8).

[21] Please note the decision: “la volonté des parties joue un rôle déterminant dans la jurisprudence française permettant l’extension d’une clause d’arbitrage à une partie qui ne l’a pas signée. En effet, cette jurisprudence, développée en matière de groupes de sociétés se fonde sur une intention présumée des parties. Leur rôle dans la conclusion et l’exécution du contrat, auquel s’ajoute l’existence sous-jacente d’un groupe des sociétes sont les éléments constitutifs de la présomption” (ARNALDEZ, Jean-Jacques; DERAINS, Yves; HASCHER, Dominique. Collection of ICC Arbitral Awards, vol. III, cit., p. 458). It is mentioned the intention of the parties once more in ICC Case n. 6610/1991: “it is beyond doubt that the intention of the parties as expressed by their written agreements was that claimant was not contracting merely as agent nor on behalf of others without personal engagement” (ARNALDEZ, Jean-Jacques; DERAINS, Yves; HASCHER, Dominique. Collection of ICC Arbitral Awards, vol. III, cit., p. 279).

[22] As included in the arbitration award, “it is widely held in arbitration practice that third party beneficiaries are bound by a valid arbitration clause unless otherwise provided in the contract”.

[23] For the Tribunal, “the second and third respondent had complied with the contractual framework of the concession agreement by receiving payments under it and requesting those payments actively”.

[24] ICC Case n. 17669, 2012, Interim Award, p. 262. V., in the same direction, ICC Case n. 17176, 2012, Final Award, pp. 108-109.

[25] On the subject, see BATISTA MARTINS, Pedro A. Arbitragem no direito societário. Revista de Arbitragem e Mediação, vol. 39, 2013, pp. 55-64. As for the increased enlargement of matters subject to arbitrability in Brazil (objective reach), see ROQUE, André Vasconcelos. A evolução da arbitrabilidade objetiva no Brasil: tendências e perspectivas. Revista de Arbitragem e Mediação, vol. 33, 2012, pp. 301-337.