6/6/2025
In the judgment of Special Appeal n. 2.166.582/SC, presided over by Justice Nancy Andrighi, the Third Panel of the Superior Court of Justice (“STJ”) upheld the autonomy of a civil association to deliberate on its internal rules, as it recognized the effectiveness of an arbitration clause included in its bylaws through a decision at a general assembly.
The case involved a request for the declaration of nullity of an arbitral award, in which a member of the association argued that, pursuant to §2 of Article 4 of Law No. 9.307/1996 (“Brazilian Arbitration Act”)[1] – that requires the express assent to the arbitration clause by the consenting party in adhesion contracts –, the arbitral award should be deemed null and void, since said member had not individually consented to the arbitration clause.
In its decision, the STJ dismissed the argument, on the grounds that the legal relationship between the parties did not meet the requirements to constitute an adhesion contract, making the provisions of §2 of Article 4 of the Brazilian Arbitration Act inapplicable, and, therefore, the member’s express consent was unnecessary.
The reason behind such decision was that the amendment of an association’s bylaw, done by means of an assembly, unlike adhesion contracts, involves a deliberative process with the participation of its members – it is, therefore, a collective decision rather than a unilateral imposition, which is typical of adhesion contracts.
Furthermore, although in the case in question the member joined the association prior to the inclusion of the arbitration clause, the reasoning of the decision acknowledged that new members are bound by the arbitration agreement from the moment they join, upon requesting “an express acceptance of the content of the bylaws and internal regulations in force. Such acceptance will include consent to the arbitration clause”.
Despite this, the STJ emphasized that the binding effect of an arbitration clause approved by a majority in an association’s assembly (or lack of it), has yet to be addressed by the Judiciary. In addition, there is no legal provision guaranteeing dissenting members the right to withdraw from the association – as is the case of business corporations, due to the provisions of Article 136-A of Law No. 6.404/1976.
The Superior Court rejected the request for the nullity of the arbitral award as it found no grounds to justify the assessment of the arbitration clause’s nullity or ineffectiveness by the Judiciary – as is the case with adhesion contracts. Thus, the STJ held that, a priori, the arbitral tribunal should assess issues related to the existence, validity, and effectiveness of the arbitration agreement.
This judgment highlights the necessity of raising objections before the appropriate forum – namely, the arbitral tribunal. Therefore, if the parties intend to invoke the ineffectiveness or invalidity of the arbitration clause, such objections must be raised before the arbitrators, who have the competence to rule upon their own jurisdiction.
The Dispute Resolution team at L.O. Baptista, a benchmark in arbitration, remains available to provide clients with specialized support.
[1] “Art. 4. An arbitration clause is an agreement by which the parties to a contract agree to submit any disputes that may arise in relation to that contract to arbitration.
(…) §2. In adhesion contracts, the arbitration clause will be effective only if the adhering party takes the initiative to commence the arbitration or expressly agrees with its commencement, provided that the arbitration clause is in writing in an attached document or in boldface type, with the adhering party’s signature or initials especially for the arbitration clause”.
