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Embedding securities arbitration in US public markets after the SEC shift: lessons on regulatory certainty, standardisation, transparency and collective redress from Brazil’s B3 Arbitration Chamber

Published on: 11 December 2025

Published by a Law360 reporter

Legal News

Article summary

This signals a significant shift in US securities regulation and practice at a pivotal moment in securities law. It opens the door for listed businesses to implement arbitration frameworks the SEC now deems lawful under the Federal Arbitration Act, provided those terms are clearly disclosed. Concurrently, the move rekindles enduring disputes about investor protections, transparency and access to the courts. Brazil’s twenty years of weaving arbitration into its capital markets, in our view, offer a practical template for the SEC to consider, drawing on sustained experience.

Where the US stands after the SEC shift

While never enshrined by formal rule, SEC staff followed a long-standing practice of refusing to accelerate registration statements that contained mandatory arbitration terms when presented by issuers, a stance applied over many years. They defended this stance on investor-protection grounds, warning that such clauses might curtail shareholder rights under the federal securities laws—most notably access to federal class actions. The policy shift announced in September 2025 eases that position. Issuers may now embed arbitration clauses in their charters, by-laws or other corporate governing instruments, so long as the provision is properly disclosed...

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