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Legal Update

Brazil: Arbitrability of Company Dissolution Due to Partner's Death and Arbitration Clause Implications

22 August 2018
Tauil & Chequer Legal Update

When ruling the Special Appeal No. 1.727.979-MG, the Third Section of the Brazilian Superior Court of Justice unanimously decided that the partial membership dissolution of a company arising from the death of a partner does not cease the jurisdiction of the Arbitral Tribunal. The special appeal in question was filed by the estate of the deceased partner against the decision rendered by the State Court of Appeals of Minas Gerais (MG), which maintained the judgement to dismiss the case, without analysis of merits, precisely due to an arbitration clause in the company’s bylaws.

In summary, the Third Section of the Brazilian Superior Court of Justice concluded that: (a) the subject matter discussed in the lawsuit for partial membership dissolution and inventory of assets involves exclusively corporate matters and, therefore, available rights. Hence, the constraint contained in Article 1, caput, of Law No. 9.307/1996 does not apply to the case; and (b) the object of the lawsuit for partial membership dissolution of a company and inventory of assets  is not to be confused with the right to succession of the corporate participation, which will be analyzed within the course of the asset-related action (inventory).

The Reporting Justice of the case, Marco Aurelio Belizze, applied the majority principle and concluded that, despite the general rule that the arbitration clause only produces legal effects on those who have agreed with it, “the arbitration clause, inserted in the articles of association upon the constitution of the company, as in this case, or after, with due respect to the legal quorum, shall be applied to the company and all of its current and future partners, whether or not they have agreed with this provision”.

The estate of the deceased partner filed a Motion for Clarification of the aforementioned decision, and this appeal is pending judgement by the Brazilian Superior Court of Justice.

Our Litigation and Arbitration team is available for further clarification regarding the matter described above, as well as to related issues.


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