Post by account_disabled on Mar 7, 2024 5:23:24 GMT -5
The statutory arbitration clause has been provided for in the SA Law since , when it was inserted in article by Law , The regulations for the new BMF&BOVESPA market have long required the inclusion of an arbitration clause in the statutes of listed companies. However, parties have rarely resorted to arbitration to resolve disputes arising within companies, except with regard to shareholder contracts.
The Market Arbitration Chamber, an entity of BMF&BOVESPA, recently published its new regulations to come into force on the th of this month, which will certainly contribute to statutory arbitration becoming a relevant means for pacifying conflicts between investors, companies and market agents.
The new regulation is based on the legally correct assumption that the arbitration clause inserted in the bylaws binds the company and all its shareholders, which is why it eliminates the hassle of concluding a commitment when there is a statutory arbitration clause. In this case, the lack of response from the defendant will not prevent the arbitration from continuing.
The rare use of arbitration in corporate disputes is explained BTC Number Data by the omission of regulations on relevant points in the processing of disputes in which homogeneous individual interests of people who do not originally appear as parties arise.
Let us cite as an example the demands for annulment of the resolution of the general meeting, in which any shareholder interested in the matter resolved is a legitimate active party and the company, of which the meeting is a deliberative body, is a legitimate passive party. The sentence handed down in a case of this nature is res judicata in relation to the company and the shareholders who appeared as parties to it, but not in relation to the other shareholders of the same class, whose rights are identical to those that were the subject of the sentence. Article of the Code of Civil Procedure provides for the institute of joint litigation assistance, which allows such shareholders to join the case as joint litigation assistants and thus position themselves under the auspices of the res judicata to be formed in the process.
The new regulation creates a figure similar to joint litigation assistance by admitting the entry into an arbitration of holders of interests homogeneous to those claimed by the parties. Third parties thus admitted will join the case in the state in which it is found and will submit to the arbitration award that is rendered therein.
Another issue, faced in a pioneering way, is that relating to the connection of arbitration causes. The new regulation establishes that, in the face of a demand with an object or cause of action common to another already underway in the Chamber, the president will determine the meeting of the procedures. If the Arbitration Court has not yet been constituted in the oldest claim, it will be constituted by the consensus of the parties in the consolidated arbitrations; if consensus is not reached, the president will appoint the Court; If the Court is already constituted, the consolidation of the procedures will only be permitted if the parties to the subsequent related demands agree with the composition of the Court. This provides the desirable unitary solution, without disrespecting the right of the parties to nominate arbitrators.
The Market Arbitration Chamber, an entity of BMF&BOVESPA, recently published its new regulations to come into force on the th of this month, which will certainly contribute to statutory arbitration becoming a relevant means for pacifying conflicts between investors, companies and market agents.
The new regulation is based on the legally correct assumption that the arbitration clause inserted in the bylaws binds the company and all its shareholders, which is why it eliminates the hassle of concluding a commitment when there is a statutory arbitration clause. In this case, the lack of response from the defendant will not prevent the arbitration from continuing.
The rare use of arbitration in corporate disputes is explained BTC Number Data by the omission of regulations on relevant points in the processing of disputes in which homogeneous individual interests of people who do not originally appear as parties arise.
Let us cite as an example the demands for annulment of the resolution of the general meeting, in which any shareholder interested in the matter resolved is a legitimate active party and the company, of which the meeting is a deliberative body, is a legitimate passive party. The sentence handed down in a case of this nature is res judicata in relation to the company and the shareholders who appeared as parties to it, but not in relation to the other shareholders of the same class, whose rights are identical to those that were the subject of the sentence. Article of the Code of Civil Procedure provides for the institute of joint litigation assistance, which allows such shareholders to join the case as joint litigation assistants and thus position themselves under the auspices of the res judicata to be formed in the process.
The new regulation creates a figure similar to joint litigation assistance by admitting the entry into an arbitration of holders of interests homogeneous to those claimed by the parties. Third parties thus admitted will join the case in the state in which it is found and will submit to the arbitration award that is rendered therein.
Another issue, faced in a pioneering way, is that relating to the connection of arbitration causes. The new regulation establishes that, in the face of a demand with an object or cause of action common to another already underway in the Chamber, the president will determine the meeting of the procedures. If the Arbitration Court has not yet been constituted in the oldest claim, it will be constituted by the consensus of the parties in the consolidated arbitrations; if consensus is not reached, the president will appoint the Court; If the Court is already constituted, the consolidation of the procedures will only be permitted if the parties to the subsequent related demands agree with the composition of the Court. This provides the desirable unitary solution, without disrespecting the right of the parties to nominate arbitrators.
