Informativo STJ

Direito empresarial. Não submissão de crédito garantido por alienação fiduciária aos efeitos de recuperação judicial 

Não se submetem aos efeitos da recuperação judicial os créditos garantidos por alienação fiduciária de bem não essencial à atividade empresarial. Conflito de Competência 131.656 

Background

In accordance with the Constitution, companies that want to contract with government entities must participate in a tender process (Article 37, XXI). Under the Law of Tenders (Law 8,666/1993) – which governs government procurement – a company must prove that it has the necessary technical and financial qualifications and that it has regularly met its tax and labour obligations in order to participate in a bid.

The chapter 15 cases of OAS S.A. ("OAS") and its affiliates represent the second time in less than one year that a U.S. bankruptcy court has been confronted with a serious challenge to the recognition of insolvency proceedings in Brazil by a group of U.S. creditors. The latest challenge focused on two separate lines of attack: (1) whether the "foreign representative" authorized to commence a chapter 15 case can be appointed by the company rather than the foreign insolvency court; and (2) whether Brazilian insolvency law is manifestly contrary to U.S. public policy.

On October 30, 2013, Brazilian oil company OGX Petróleo e Gas Participações SA (OGX) filed for bankruptcy protection (or “judicial reorganization”) in Rio de Janeiro after restructuring discussions between the company and its major creditors ended without agreement. With nearly $5 billion of debt, OGX is the largest and most complex bankruptcy proceeding to be conducted in Latin America and will not only test Brazil’s nascent bankruptcy law, but also presents itself as the latest potential opportunity for distressed investors focused on Latin American emerging markets.

Actions prior to a formal proceeding

What duties do directors or officers of a company owe creditors or other third parties if the company is insolvent or in financial difficulties, or has negative net worth? Is there a standard of care towards third parties? In what circumstances can officers and directors be found civilly or criminally liable for continuing to operate a company in financial difficulties? In practice, are such liabilities commonly enforced?Actions prior to a formal proceeding

In Brazil, directors and officers do not owe any duties directly to creditors of

Although in some jurisdictions arbitration is a long-established form of alternative dispute resolution, this mechanism has only recently been regulated in Brazil. The Brazilian Commercial Code, enacted in 1850, already included a few sparse provisions regarding commercial arbitration, but there were no references to specific rules. It was not until 1996 that Brazil passed its first specific arbitration statute, Law No. 9,307/96 (Arbitration Law).

The Superior Court of Justice (Superior Tribunal de Justiça - STJ) judged Direct Appeal n. 1.223.792 where the State of Mato Grosso do Sul sought to include the delay penalty in the classification of the credits in the bankruptcy of a company. According to the opinion announced by the Second Panel, in the case of bankruptcy declared during the validity term of Law n.

On 06.11.2013, the 1st Panel of 3rd Chamber of 1st Judgment Section of Federal Administrative Tax Court granted relief to the Voluntary Appeal filed by Banco GMAC S/A, recognizing the use of a tax benefit for the amortization of goodwill originated from the corporate restructuring of GM Group.

Tax authorities claimed that the GM Group had used a vehicle company and that the corporate operations lacked business purpose, so the goodwill was created inside the group by an inverted merger.  

Restructurings, especially those involving multiple jurisdictions, are invariably complex matters. This CMS Expert Guide provides an overview of the various restructuring possibilities available in a large number of countries, allowing you to compare how the options are deployed in these jurisdictions.

We intend to update it periodically to reflect important changes as they happen.

If you need more information or have any questions, please do not hesitate to contact us.

UPDATED 3 AUGUST 2020

Updates marked with *

Updated: Ireland, Israel

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