ABSTRACT: This article tackles the matter of the binding character of arbitration agreements inserted in the bylaws of companies organized under the form of sociedades anônimas or sociedades limitadas that elect Brazilian Law nº 6.404/1976 as amended as a supplementary rule. Starting with research on the various scholarly opinions on the matter, this work first examines the arguments sustained by each positioning and then confronts them from a critical standpoint, under the perspective of the Brazilian Law of Arbitration and the Brazilian corporate regulation, as well as under the practice in solving corporate disputes, both in arbitral and in judicial proceedings. The research demonstrated the possibility of grouping the existing opinions into three major categories, namely, for the purposes herein, the conservative group, the intermediary group and the modern group - as they restrict the binding character of the arbitration agreements, respectively, (i) to partners who have formally and expressly agreed to it, exclusively; (ii) to partners who have consented to the arbitration agreement, as well as those who have not voted, those who were absent to the assembly and those who have acquired quotas or shares; and, finally (iii) to all partners, regardless of their disagreement to the arbitration clause, as a consequence of the majority principle. Ultimately, it concludes that the arguments sustained by the third group (modern) are the most adequate to the development of an arbitral culture, as well as to the proper protection of the many interests involved in a scenario of corporate dispute, deserving to prevail over the arguments sustained by the other two groups.
Revista Brasileira de Arbitragem