Supreme Court of Justice | Group of Companies| Arbitration Agreement | Tacit Consent to Arbitrate | Case #104
Case nr. 28/14.3TBOHP.C1.S1
The parties’ agreement to submit the resolution of one or more determined or determinable disputes to arbitration constitutes an arbitration agreement.
Voluntary arbitration is therefore based on the arbitration agreement. In addition, the constitution of the arbitral tribunal and most aspects of the arbitral proceedings can largely be self-regulated by the parties. In effect, national laws are limited to providing frameworks for the arbitration and delegating to the parties (and, upon their omission, the arbitrators) the determination of most of the precepts applicable to the organization of the arbitration. The parties’ autonomy is only guided by certain rules and principles that express the minimum requirements of procedural justice.
The fact that one of the plaintiffs, integrated in the corporate group of the other plaintiff, and one of the defendant companies, integrated in the corporate group of the other defendant, did not intervene in the framework agreement invoked by the plaintiffs to support their claims against the defendants – a framework agreement which includes an arbitration clause – does not prevent the arbitration clause from being extended to such companies by means of tacit consent to arbitrate, in the light of the combined provisions of Articles 406(2) and 217(1) of the Civil Code.
Summary and headlines kindly prepared by Avani Agarwal (final year law student at NALSAR University of Law, Hyderabad, India; Avani Agarwal may be contacted by email: firstname.lastname@example.org