A extensão da cláusula compromissória diante da teoria dos grupos de sociedades

Abstract

It is possible to see an increasing importance of arbitration as a suitable way to resolve conflicts, at the same time as the number of business groups is increasing in Brazil and around the world. From this perspective, considering that arbitration is a consensual process, where the clear consent of the parties is a requirement for the validity of the arbitration agreement, this paper aims to analyze the possibility of extending the binding power of the arbitration clause according to the theory of groups of companies. This analysis will be carried out through a descriptive approach, using bibliographic and documentary research, as well as the analysis of emblematic practical cases. The main doctrinal and jurisprudential theses on the subject will be analyzed, as well as the legal framework surrounding it. In light of the foregoing, it was concluded that the national jurisprudence, including that of higher courts, has already established a peaceful understanding that non-signatory parties can be bound to the arbitration clause, based on the fact that tacit consent can be identified through the actions and behaviors of the parties. Therefore, in order to extend the arbitration clause according to the theory of groups of companies, it is necessary for the non-signatory company, which is a member of the economic group from which a company consented to the arbitration agreement, for example, to have participated in the elaboration or execution of the contract in some way, demonstrating acquiescence to the arbitration clause inserted in the contract, and it is possible to infer tacit consent from the behavior of each company, on a case-bycase basis.