The Superior Court of Justice allows the processing of a positive conflict of jurisdiction between arbitral tribunals
The Superior Court of Justice, through decision rendered by the leading Justice Marco Aurélio Bellizze, recognized its competence to analyze and rule a positive conflict of jurisdiction between arbitral tribunals when the arbitration chamber’s rules do not provide a solution to this specific situation.
The discussion under the arbitration proceedings is the liability of controlling shareholders, managers and former managers. The first two arbitration proceedings were initiated by minority shareholders, while the third procedure was initiated by the company itself. The Superior Court of Justice ordered the suspension of the arbitration proceedings initiated by the minority shareholders until a final decision by the Superior Court of Justice on the positive conflict of competence is rendered.
(Superior Court of Justice. Conflict of Competence no. 185.702/DF, leading Justice Marco Aurélio Bellizze, 2ª Section, published on 03/17/2022)
The Supreme Federal Court declares the guarantor’s home provided as a guarantee in a commercial lease agreement can be seized
The Supreme Federal Court has ruled that it is constitutional to seize the guarantor’s family home when the seized property was provided as a guarantee in a commercial lease agreement. According to the Supreme Federal Court, the exception to the rule of unseizability of a family home, as provided by article 3, VII, of Brazil’s Homestead Right Law (Law 8.009/90), does not make any distinction as to the nature of the lease agreement and consequently, it is possible to authorize the seizure of the guarantor’s family home regardless of the nature of the lease agreement.
According to the leading Justice Alexandre de Moraes, the guarantee voluntarily provided represents the legitimate exercise of the principle of private autonomy, the right to property and freedom of contract and to limit the possibility of seizing the guarantor’s family home could be deemed as a disincentive to the commercial activity.
(Supreme Federal Court. Extraordinary Appeal no. 1.307.334, Theme/Topic 1.127, leading Justice Alexandre de Moraes, ruled on 03/08/2022)
Concession transfer without a new bidding procedure
The Supreme Federal Court has declared by majority decision (7×4) the constitutionality of Law no. 8.987/95, which allows concessionaires to transfer concession and corporate control without a new bidding procedure. According to the decision, the law establishes sufficient requirements to guarantee respect of the public interest.
The leading Justice Dias Toffoli has pointed out that the law seeks “to allow the continuity of the provision of public services in cases where the concessionaires are no longer able to continue in charge of the granted projects.”
(Supreme Federal Court. Direct Unconstitutionality Action no. 2.946, Reporting Justice Dias Toffoli, ruled on 03/09/2022)