Corporate Autonomy and Mandatory Structure in Corporate Law: Arbitration as an instrument for the resolution of corporate conflicts

Abstract

Most companies choose not to include arbitration clauses in their bylaws and, therefore, normally resolve their disputes before Spanish Commercial Courts. The relatively low use of arbitration is due to several factors. These include the controversy generated by the possibility of introducing an arbitration agreement through a statutory amendment without the favourable vote of all the shareholders, as well as the approval in 2013 of the Commercial Code Proposal, which proposes limiting the objective scope of statutory arbitration —with the express exclusion of listed companies— and includes a right of withdrawal in the event that the bylaws provide for a clause of submission to arbitration of corporate disputes. In this paper we intend to explore other reasons that explain the low use of statutory arbitration, such as the high number of matters with a corporate dimension that, however, are subject to administrative procedure or to the common or voluntary jurisdictional process. In the case of listed companies, the expansion of consumer arbitration systems and extrajudicial dispute resolution systems that shareholders, holders and beneficiaries of financial instruments can use under MiFID II. With respect to matters that do present a priori a procedural interest that can be arbitrated by the parties, an important restriction arises, which consists of the existence of third party interests, the protection of which cannot be the responsibility of an arbitration court unless the affected parties expressly accept it.