Access to Justice for Minority Shareholders of the Brazilian Capital Market: An Analysis in the Light of Ex Post Transaction Costs

Abstract

The consolidation of corporate arbitration had an impact on the interpretation of the guarantee of access to justice, especially for minority shareholders. The purpose of this article is to analyze whether, based on Oliver E. Williamson's Theory of Transaction Costs, the compulsory adoption of arbitration represents a gain for the enforcement system in the Brazilian capital market. For the development of this research, the deductive-descriptive scientific method and the empirical and bibliographical research technique were used. It was observed that the binding of all shareholders of a given company to the arbitration clause is associated with at least two ex post transaction costs: the cost of poor adaptation of arbitration in the capital market, as only the shareholder who has substantial private resources will be able to exercise his rights; and a configuration and operating cost consistent with the total secrecy of the arbitration procedure, which undermines the assessment of the effectiveness of the investor protection system. Next, an analysis was made of how the organizational structure composed of minority shareholders could modify the analyzed legal institutions. Finally, it was possible to conclude that the current legal diploma is outdated and that the enforcement system in the Brazilian capital market is not equally efficient for all players.