A desconsideração na arbitragem? O consentimento atrás do véu

Abstract

The purpose of this article is to discuss the possibility of the application of the disregard doctrine in arbitration. The intent is to answer two questions regarding the application of art. 50 of the Brazilian Civil Code in arbitral proceedings. The first, whether the doctrine could be used to bound a third party which had not consented to the arbitration clause. The second, whether the disregard doctrine could be applied by the arbitrators when ruling on substantive issues of the dispute. The conclusion is negative to the first, as the consent is essential to the enforceability of the arbitration process, in light of art. 3 and 4 of the Brazilian Arbitration Act, and positive to the second, because the disregard doctrine contemplates a rule of liability determination that is applicable when the abuse of legal entity occurs. In sum, Brazilian Law does not admit the abuse of the legal entity as a criterion to make the arbitral process binding, as the analysis about the consent cannot be mixed with the requirements of the disregard doctrine. Disregard doctrine; Civil Code, art. 50; criteria; liability determination; party and third-party; consent; Brazilian Arbitration Act, arts. 3 and 4.