Binding Nature and Scope of the Arbitration Agreement Stipulated in the Articles of Incorporation for New Partners

Abstract

A company formed with bylaws that include an arbitration clause and the entry of the participation of new partners and/or shareholders, a legal debate begins as to whether or not these partners and/or shareholders are subject to compliance with the arbitration agreement established in the bylaws and whether or not it is binding for the new partners and/or shareholders participating in the company. The above legal approach is a problem that has been discussed in the country for a decade now, without having reached a peaceful conclusion, since in different judicial scenarios two theses have been held contrary to each other, in this case the honorable Constitutional Court and the Superintendence of Corporations, have completely opposite positions. The purpose of this paper is to analyze the positions of both bodies in order to determine which of the two theories is more consistent with the regulations governing corporate activity, as well as the regulations governing the arbitration clause and the arbitration agreement.