By Fabio Marques

Law No. 13,129/15 introduced into the text of the arbitration law – Law No. 9,307/96 and into the text of the Corporations Law – Law No. 6,404/76 – a specific provision to regulate the arbitration agreement in the Bylaws of publicly-held companies, which became mandatory for all shareholders investing in capital markets, and, therefore, any issue involving the discussion of rights between the shareholder and the company must be resolved by an arbitration chamber, which, in this way, within the limits of the arbitration dogmas, prevents the discussion of these issues by the jurisdictional bodies (article 136-A).

This is a far-reaching device that meets the interests of companies and investing shareholders, especially minority shareholders, as they now use this conflict resolution system that is much more agile and specialized compared to the solutions brought by judicial bodies.

Agility in resolving conflicts is inherent to arbitration decisions, including because the arbitrators are experts and have in-depth knowledge of the subject, which allows for a quick and high-quality judgment.

There is, however, a specific aspect in relation to the arbitration rules that deserves special attention when the issue being discussed in the arbitration forum refers to the controversy of interests of the shareholders and the publicly-held company and which refers to the confidentiality in relation to the terms of the arbitration, since, in these cases, since the companies are publicly-held, the confidentiality in relation to the arbitration prevents the other shareholders from knowing the status of the arbitration action, which, in certain cases, may affect the company's business.

This is a very relevant issue that deserves further reflection.

Within the limits we propose in this text, a sentence handed down by the Court of the 6th Civil Court of the Central Forum of the Capital extinguished a Public Civil Action filed by the Association of Minority Investors against Petrobrás – Petróleo Brasileiro S/A, based on the Court's impediment to judge the action due to the existence of an arbitration clause in the company's Bylaws.

Petrobrás' Bylaws state in its Article 58 that disputes or controversies involving the Company, its shareholders, administrators and fiscal advisors must be resolved through arbitration, in compliance with the rules set forth by the Market Arbitration Chamber.

To expand the scope of application of arbitration and provide for the choice of arbitrators when the parties resort to an arbitration body, the interruption of the statute of limitations by the institution of arbitration, the granting of precautionary and urgent relief in arbitration cases, the arbitration letter and the arbitration award, and repeal provisions of Law No. 9,307, of September 23, 1996.

“ Art. 136-A. The approval of the inclusion of an arbitration agreement in the articles of association, subject to the quorum of art. 136, is binding on all shareholders, ensuring the dissenting shareholder the right to withdraw from the company upon reimbursement of the value of his shares, in accordance with art. 45.