M&A, arbitration and the extension of the compromise clause in collective contracts

in the context of an M&A operation, in addition to the main acquisition or investment contract, several other accessory contracts also do part of the documentary set of the transaction. Such documents may include warranty contracts, shareholder agreements, terms and consent. Although such documents are configured as independent contracts, they share a common goal. In this sense, it is understood that such documents can be understood as collective contracts.

Purchased contracts are defined as those who, even maintaining their autonomy, are aligned with a functional economic link, in which the provisions of one can influence the other, within the context in which they are inserted and thus , provide the achievement of a common negotiation purpose.

It is certain that the choice for arbitration has been a growing trend in M&A operations, considering that while the judicial system is able to deal with such issues, the benefits of arbitration, such as the high specialization of Referees and the confidentiality inherent in procedures are particularly attractive when it comes to the contractual aspects of reference operations.

Given this, it is discussed whether the compromise clause present in the main contract of the operation can be extended to resolve conflicts in contracts that do not contain arbitral clauses. In other words, it would be possible for a third party, when celebrating a contract as part of an M&A operation and, therefore, knowing the context of the business structure, submitted to the compromise clause established in the main contract?

The theme has already been analyzed by the Superior Court of Justice, and it is understood that "in the agreed contracts, the parties celebrate a plurality of legal business having as its desiderate an economic ensemble, creating effective dependence among them. Contractual coalition, it is possible to extend the compromise clause provided for in the main contract (...), as members of a single economic operation. In the contractual coalition system, the contract reputed to be the principal determines the rules that should be followed by the other business instruments that adjust it, it is not reasonable that an compromise clause inserted therein had no effects extended to the others. "

Thus, covert contracts must be interpreted in a systemic way, for the benefit of good faith and the preservation of trust between the parties.