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Newsletter Muriel Advogados – May 2023

By 01/05/2023August 10th, 2023No Comments

The Court of Justice of São Paulo suspended the enforceability of an arbitral award issued by an arbitrator who had allegedly acted as an attorney of one of the partiesThe 2nd Reserved Chamber of Business Law of the Court of Justice of São Paulo granted an injunction to suspend the enforceability of an arbitral award issued in an arbitration proceeding handled by the Chamber of Conciliation, Mediation and Arbitration Ciesp/Fiesp due to an alleged breach of disclosure duty by one of the arbitrators.In a preliminary analysis, the Leading Judge stated that the previous performance of the presiding arbitrator as one of the parties’ attorneys can raise doubts over his impartiality and possibly cause the nullity of the arbitral award.(Court of Justice of São Paulo, Interlocutory Appeal No. 2272139-63.2022.8.26.0000, Leading Judge Grava Brazil, 2nd Reserved Chamber of Business Law, Ruled on 03/28/2023)

The Supreme Federal Court has been asked to establish clear constitutional criteria for the disclosure obligations of arbitratorsA political party has filed a claim of noncompliance with a fundamental precept (ADPF) to the Federal Supreme Court (STF) to establish clear constitutional criteria related to the duty of disclosure of arbitrators. According to the party, the Judiciary has not been able to harmonize the jurisprudence on the criteria that should guide the duty of disclosure, with disagreements, for example, about who is responsible for the duty of disclosure and about the extent of the duty to disclose.The matter is the subject of ADPF 1050, distributed to Justice Alexandre de Moraes, who received the claim as a direct action of unconstitutionality.(Supreme Federal Court, ADPF 1050, Leading Justice Alexandre de Moraes)

STJ rules the arbitral tribunal must decide on the viability of arbitration in case of bankruptcy of one of the contracting partiesThe Third Panel of the Superior Court of Justice (STJ) has ruled that the arbitration clause must be respected even with the bankruptcy of one of the contracting parties. According to Justice Nancy Andrighi, the arbitration clause implies the derogation of state jurisdiction, so that any doubts about the viability of arbitration due to subsequent bankruptcy must be decided by the arbitral tribunal, under the kompetenz-kompetenz principle.The case was first dismissed without prejudice due to the existence of an arbitration clause, but the decision was reversed by the Court of Justice of Rio de Janeiro due to the financial insufficiency of the party that had been declared bankrupt.(Superior Court of Justice, Special Appeal No. 1,959,435/RJ, Leading Justice Minister Nancy Andrighi, 3rd Section, ruled on 08/30/2022) 

CVM rules against automatic dismissal of civil liability actions against controllers and administrators brought by minority shareholdersThe Brazilian Securities and Exchange Commission (CVM) has taken a different stance than the Superior Court of Justice (STJ) regarding civil liability claims against administrators and controllers brought by minority shareholders. In a recent decision, CVM ruled that such claims should not be automatically dismissed when the company itself proposes a claim seeking reparation for any losses.CVM’s director João Accioly, who was the rapporteur of the case, stated that dismissing the action proposed by the minority shareholder would violate Article 109, §2 of the Brazilian Corporations Law (Law No. 6.404/1976). This provision prohibits the articles of association or general meetings from depriving minority shareholders of the means, processes, or actions granted by law to ensure their rights.Although CVM’s decisions are not legally binding, this guidance is significant for protecting minority rights and ensuring that controlling shareholders can be held accountable for their actions.(Brazilian Securities Commission, SEI Administrative Process No. 19957.007423/2021-12, Rapporteur Director João Accioly, vote of 02/28/2023)

The Superior Court of Justice allows the seizure of wages to pay non-alimentary debts in exceptional situationsThe Special Court of the Superior Court of Justice has ruled that, exceptionally, it is possible to seize the debtor’s wages to pay non-alimentary debts, regardless of the debtor’s income, as long as his substance and that of his family are preserved.With this decision, the Superior Court of Justice relativizes the rule of article 833, §2, of the Brazilian Civil Procedure Code, which stated that the seizure of wages for non-alimentary debts was only possible when the income exceeds 50 minimum wages per month. However, it is important to note that such relativization is only applicable (i) when other enforcement methods are not viable, and (ii) after examining the impact of the seizure on the debtor’s income, in order to guarantee his dignity and that of his family.(Superior Court of Justice, Divergence Motion No. 1874222/DF, Leading Justice João Otávio de Noronha, Special Court, Ruled on 04/19/2023)