Vanessa Salem Eid
Lawyer at Marcos Martins Advogados
Arbitration proceedings, just like judicial proceedings, are governed by some fundamental principles that serve as the basis for the Arbitration Law itself (Law No. 9.307/96), including the adversarial process; the equality of the parties; the impartiality of the arbitrator and his free will, as well as the fundamental principles of the arbitration institute, which are procedural guarantees and autonomy of will.
Recently, a discussion was raised about the appropriateness of applying broad access to arbitration proceedings in the same way that this principle is applied to judicial proceedings, i.e. the debate took place in a case in which the arbitration involved high costs and expenses and one of the parties sought the annulment of the arbitration clause arguing that it could not afford to follow the process.
The matter was judged on 29/03/2022 and the validity of the arbitration clause was recognized as being above the personal interest of one of the parties who claimed not to have the resources to pay for the procedure[1]. The ruling held that the above argument is not valid or even sufficient to annul the arbitration clause, either because the party was already aware of the costs, or because the arbitration process is not subject to the policy of broad access, which mean.
[1] “Appeal – Declaratory action for nullity/annulability of an assembly act, with an obligation to do and substitute for a declaration of will – Sentence that extinguished the process, without resolution of the merits, due to the existence of an arbitration clause in a shareholders’ agreement – Provision for the submission of any conflicts involving the agreement to arbitration – Claim that the aforementioned clause be removed, Justification that is not sufficient to annul the clause, either because the party was already aware of the costs, or because the arbitration process is not subject to the policy of broad access – Plaintiff, moreover, who calls himself a major shareholder of the largest cachaça company in the world and who, of course, receives significant dividends that allow him to bear the costs of the arbitration procedure – Termination of proceedings upheld. – Appeal number 1002077-20.2021.8.26.0457, judged on 29/03/2022, by the 2nd Chamber of Business Law “
