A pessoa jurídica como árbitro

Abstract

This doctoral thesis analyzes whether a legal person may act as an arbitrator in an international commercial arbitration. At an introductory title, we discuss the mission of an arbitrator and the legal capacity to exercise it. We sustain the jurisdictional nature of arbitration, highlighting the jurisdictional powers of arbitrators and its limits compared to the state courts. Then we explore the contractual source arbitration, addressing in particular the legal capacity, independence, impartiality, and trust that are required of an arbitrator. We then study the theories of legal personality and capacity of legal entities, dwelling upon the nature of the legal entity, the acquisition and loss of personality by the legal entity and the legal capacity of a legal entity. We then proceed to analyze the different roles played by legal entities in arbitration in contrast to the role of an arbitrator: appointing authority, arbitral institution, and expert. Having established the necessary premise, we dwell, in the second part of the thesis, upon the question of the legal persons as arbitrators. First, we present an overview of the subject in a comparative approach, including the analysis of doctrine, jurisprudence and the legislation of Brazil, Argentina, Portugal, Spain, Italy, France, Belgium, Switzerland, Germany, Arab countries, common law countries, countries adopting the UNCITRAL Model Law on International Commercial Arbitration and countries part to the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards. After this comparative panorama, we distill the main issues brought up by scholars and case law surveyed, to conclude the conceptual compatibility between the mission of arbitrator and the condition of legal entities, notably the exercise of the judicial function of the arbitrator by the legal entity, the identification of the individual who acts on behalf of the legal person, the immutability of the arbitrator vis-à-vis the mutability of the composition of the governing bodies. Then, we access who the independence , impartiality, challenge and replacement of and arbitrator could be adapted to a legal entity. Finally, we question how should the necessary trust in an arbitrator, as well as his civil and criminal liability be adapted to a legal person.