Comments on Special Appeal 1,803,752/SP: the Judicial Control of Arbitration Clauses in Standard Form Commercial Agreements

Abstract

This article offers a critical analysis of the judicial control of arbitration clauses in standard form commercial agreements, based on article 4, § 2 of the Brazilian Arbitration Act and a landmark decision by the Superior Court of Justice. It argues that the legal requirement of specific form — highlight and signature — applies even to contracts between business entities, due to the structural imbalance inherent in this kind of contract. The paper rejects both the teleological reduction of the rule and the dismissal of voidness based on good faith, emphasizing that formal control ensures clear and express consent to arbitration, distinct from general contractual acceptance. It concludes that failure to comply with the formal requirements results in the illegality of the arbitration clause, even in business agreements.