Arbitration agreement and intercompany disputes

Abstract

The affirmation of resolution through arbitration of commercial disputes in the field of contract law, both at national levels (as an undisputable trend of varying degrees) as well as at the international level, has raised the issue of the possibility of resolving intercompany disputes in this manner, in order to extend the freedom of will of investors from the domain of establishing companies to include the domain of the freedom of choice of a forum for resolving possible disputes arising from numerous legal relations of this kind. However, unlike contracts, with the primacy of free will compared to limitations (the relation of rules and exceptions), the sphere of intercompany relations, although basically contractual by its origin, has, in its functioning, an emphasized need to resolve the conflict of contract and company law in order to make the arbitrability of these disputes realistically possible, while on the other hand, compared to the contract law, the sphere of company law is always more in the focus of attention of national public orders, as a universal institute (regardless of its scope), which represents an obstacle to arbitrability of these disputes. In this paper, the author first analyses the legal nature of the constituent acts of companies (the founding act and statute of a joint stock company) in the context of an arbitration agreement, on which the arbitrability of intercompany disputes can solely be based, finding that their contractual nature is a serious obstacle to mandatory arbitrations of these disputes (if these acts with this clause are adopted by majority of votes), and that the theory of adhesion contracts could be a solution to encourage arbitrability, but only for closed type of companies, while this would not be possible in the case of a public joint stock company, especially in the case of non-professional shareholders because of the need to additionally protect them through consumer law. The author continues by analysing the notion of intercompany disputes and systems of possible objective arbitrability (ratione materiae) of these disputes, finding that the Serbian arbitration law and company law, especially with regard to the possible restrictive concept of „exclusive jurisdiction of commercial courts“ for these disputes, has at least serious reasons for changes in favour of strengthening their arbitrability, with certain necessary individual exclusions in case of the dominance of public order interest. Finally, the author also analyses certain aspects of multiparty nature of the intercompany disputes, especially regarding public joint stock companies, as possible procedural obstacles to their resolution through arbitration, even in cases of their possibly undisputable objective arbitrability.