Large and medium-sized companies must register for the electronic judicial domicile by May 30, 2024
Large and medium-sized companies are required to register with the Electronic Judicial Domicile by May 30, 2024, a platform designed to centralize the communication of legal proceedings from all Brazilian courts in one place. After this date, registration will be mandatory, based on data extracted from the Federal Revenue Service.
Registration is still optional for small and micro-enterprises that have an electronic address in the integrated system of the National Network for the Simplification of Registration and Legalization of Companies and Businesses (Redesim), as well as for individuals.
Electronic communication of legal proceedings through this platform, in the case of service of process, will eliminate the need for publication in the Official Gazette or mailing of a notice by post. It will be possible to activate alerts for communications via email. It is important to note that deadlines for acknowledgment and response will be three business days from the date of service and ten calendar days from the date of notification.
(Resolution No. 455 of April 27, 2022, Electronic Judicial Domicile, National Council of Justice, https://www.cnj.jus.br/wp-content/uploads/2024/02/conheca-domicilio-judicial-eletronico.pdf)
Superior Court of Justice rules that preliminary contracts cannot have a greater effect than final contracts
The Third Panel of the Superior Court of Justice ruled that a preliminary contract cannot have a greater legal effect than the final contract, meaning that if the parties agree to terms in the final contract that contradict those in the preliminary contract, the terms in the final contract will prevail.
In the case that led to this decision, the preliminary agreement assigned liability for labor debts to the buyers, but this responsibility was transferred to the sellers in the final contract. The appellants sought to enforce the liability outlined in the preliminary agreement, but Minister Moura Ribeiro noted that nothing prevents the parties from “mutually agreeing to different terms at the time of the final agreement”, by the principle of contractual freedom.
(Superior Court of Justice, Special Appeal No. 2,054,411/DF, Third Panel, Reporting Justice Minister Moura Ribeiro, adjudicated on October 3, 2023)
Superior Court of Justice decides health plans are not required to cover cannabidiol for home use
The Third Panel of the Superior Court of Justice decided that health plan operators are not required to cover cannabidiol for home use by a beneficiary, as it is a medication not listed in the National Supplemental Health Agency’s (ANS) coverage roll.
The Superior Court of Justice clarified that while coverage for treatments not listed in the official roll is possible under certain conditions outlined in §13 of Article 10 of Law 9,656/98, this does not override the rule that excludes home-use medications from mandatory coverage: “otherwise, health plan operators would be required to provide pharmaceutical assistance to a significant number of beneficiaries with chronic conditions for which there are effective home-use medications on the market”.
(Superior Court of Justice, Special Appeal No. 2,071,955/RS, Third Panel, Reporting Justice Minister Nancy Andrighi, adjudicated on March 5, 2024)
Superior Court of Justice rules that attorneys’ fees are applicable in the dismissal of an objection to the enforcement of an arbitral award seeking to annul the award
The Fourth Panel of the Superior Court of Justice held that attorneys’ fees are applicable in cases where an objection to the enforcement of an arbitral award, which seeks to annul the award, is dismissed.
Generally, attorneys’ fees are not awarded when an objection to enforcement is dismissed, as such objections are typically considered mere procedural incidents. However, as highlighted by the Relator, Minister Antonio Carlos Ferreira, the situation changes when the challenged award is arbitral because the annulment of the award can also be sought under §3 of Article 33 of the Arbitration Law—an objection that should be treated analogously to an independent action for annulment.
(Superior Court of Justice, Special Appeal No. 2,102,676/SP, Fourth Panel, Reporting Justice Minister Antonio Carlos Ferreira, adjudicated on November 21, 2023)
Superior Court of Justice Rules that judicial reorganization does not prevent execution against a shareholder following piercing the corporate veil; and that veil piercing based on the consumer protection code applies to corporations
The Third Panel of the Superior Court of Justice ruled that the judicial reorganization of a company does not preclude the redirection of execution against shareholders when the corporate veil has been pierced. This is because the attachment of a shareholder’s assets does not affect the company’s assets in reorganization and does not impede the company’s restructuring efforts.
In the same decision, the Superior Court of Justice emphasized that even in cases involving corporations, piercing the corporate veil in consumer actions, based on Article 28 of the Consumer Protection Code, is possible by merely demonstrating the company’s insolvency, without the need to prove an improper purpose or commingling of assets.
(Superior Court of Justice, Special Appeal No. 2,034,442/DF, Third Panel, Reporting Justice Minister Ricardo Villas Bôas Cueva, adjudicated on September 12, 2023)
Superior Court of Justice rules that foreign currency claims should not be converted for judicial reorganization filing
The Third Panel of the Superior Court of Justice decided that claims denominated in foreign currency should be filed in judicial reorganization without conversion, to avoid discrepancies between the filed claim and the original obligation.
According to Relator Minister Marco Aurélio Bellizze, §2 of Article 50 of the Bankruptcy and Reorganization Law “explicitly states that in claims denominated in foreign currency, the exchange rate variation must be preserved as a parameter for indexing the obligation and can only be disregarded if the creditor expressly agrees to a different provision in the reorganization plan”.
Conversion to the national currency is only necessary on the eve of the general meeting of creditors to calculate the weight of the creditor’s vote, as per Article 38 of the Bankruptcy and Reorganization Law.
(Superior Court of Justice, Special Appeal No. 1,954,441/SP, Third Panel, Reporting Justice Minister Marco Aurélio Bellizze, adjudicated on November 21, 2023)
Superior Court of Justice rules that attorneys’ fees are not applicable when a motion to stay execution is sustained solely to recognize nullity of service
The Third Panel of the Superior Court of Justice ruled that attorneys’ fees are not applicable in cases where execution embargos are sustained solely to recognize the nullity of service. The reasoning is that, in such cases, the motion to stay execution does not bring the process to an end and does not result in an economic benefit for the party that filed the motion.
(Superior Court of Justice, Special Appeal No. 1,912,281/SC, Third Panel, Reporting Justice Minister Marco Aurélio Bellizze, adjudicated on December 12, 2023)
Superior Court of Justice rules that acquittal in civil and criminal spheres does not prevent conviction by CADE for cartel formation
The First Panel of the Superior Court of Justice decided that an acquittal in civil and criminal proceedings for the same facts, due to insufficient evidence, does not create res judicata for proceedings before the Administrative Council for Economic Defense (CADE). According to Relator Minister Regina Helena Costa, there is relative independence between civil, criminal, and administrative spheres, allowing for distinct investigations in each domain, particularly as each legal framework has its objectives.
(Superior Court of Justice, Special Appeal No. 2,081,262/RS, First Panel, Reporting Justice Minister Regina Helena Costa, adjudicated on November 21, 2023)
Highlights of Bill No. 3/2024 Amending Bankruptcy Proceedings
The Federal Government submitted Bill No. 3/2024 to Congress, aiming to amend Law No. 11,101/2005 to enhance the bankruptcy process by promoting greater speed in bankruptcy proceedings and granting creditors more authority. We highlight some of the main proposed changes:
- Creation of a Fiduciary Manager – Replacing the court-appointed trustee, creditors will be allowed to appoint a fiduciary manager.
- Creation of a Bankruptcy Plan – The fiduciary manager or court-appointed trustee must submit a Bankruptcy Plan within 60 days of signing the commitment term.
- Exemption from Judicial Approval for Certain Acts – Judicial approval is no longer required for asset sale plans and payments of liabilities after the Bankruptcy Plan has been approved and ratified.
- Exemption from Asset Appraisal – The appraisal of assets can be waived, and assets can be sent directly to auction if it is in the creditors’ interest and has been specified in the ratified Bankruptcy Plan—without precluding the rendering of accounts.
- Disclosure of Information – The fiduciary manager or court-appointed trustee must make all relevant information available electronically.
(Bill No. 3/2024)