The Impact Of Anti–Corruption Law In Companies' Judicial Recovery In Brazil
by Luiz Roberto AYOUB, Second Degree Deputy Judge of the 26th Civil Chamber of TJRJ Supervising Professor of the Justice and Society Center – CEJUS of FGV Direito Rio and Maçullo Braga Filho, Lawyer.
Law No. 12.846/2013, also known as the Anti–Corruption Law,
in force as of January 29th, 2014, arises with the purpose of
suppressing an existing gap in the Brazilian legal system regarding the
accountability of legal entities for the practice of illicit acts against the
Public Administration, especially for corruption acts and fraud in bids and
administrative contracts.
Such law gained recognition
in the recent Car Wash investigations, an anti–corruption
operation conducted by the Attorney General's Office in Paraná and by the
Federal Police, and changes the scenario for companies involved with
such transgressive activities. Certainly, the Criminal Code (Decree–law
No. 2.848/1940) and the Bidding Law (Law No. 8.666/1993) already provides for illicit practices
against the Public Administration, but only individuals could be punished for
such crimes. With the new legislation, companies will be able to be liable, in
the administrative and civil scope, even though there is no
involvement by their members and/or managers.[1]
If,
on one side, the Anti–corruption Law esteems the political–legislative option
of assigning the responsibility to legal entities for the illicit acts
committed, filling the gap then existing in the Brazilian legal system, from
another angle it experiments opposition. The legal entity framed in the penalties of said law,
by natural limitation, does not act in its own consciousness and, therefore, it
depends on wrongful or willful act of a physical agent.
The mentioned
argument is supported by the assumption that it cannot be allowed that a person
– including legal entities – responds for a violation unless they caused it
wrongfully or willfully, in this regard being crucial that their subjective
responsibility is shown, without which such penalty imposition is not
legitimate.
Thus, the
companies may be punished divested from the responsibility of its members
and/or managers. In this regard, a political–legislative predilection could
have been taken up of continuing to punish only individuals that practice the
illicit and not the legal entity – legal fiction that plays relevant social–economical
role as source of production of goods and services, job
generators and taxpayer –, aspiring not to overload the finances of the company
which has done nothing.
According to art. 6, item I
of the Anti–Corruption Law, in the administrative scope, the fines imposed to
convicted companies will vary in the amount of
0.1% (one tenth percent) to 20% (twenty percent) of the gross revenue of the
fiscal year prior to the filing of the administrative proceeding, excluding
taxes. However, the penalty cannot be lower than the accrued advantage, when
the estimate is possible. If it is not feasible to use the criterion of the
legal entity's gross revenue value, the fine will be from R$ 6,000.00 (six
thousand Reais) to R$ 60,000,000.00 (sixty million Reais), as established in
paragraph 4 of the aforementioned provision.
As for art. 19, item I, for instance, it
provides for the legal accountability, assigning to the public entity
undermined by the violating act (the Federal Government, the States, the Federal
District and the Municipalities) and to the Department of Public Prosecution,
the legitimacy to file a suit in order, among other measures, to confiscate the
goods, rights or values which represent advantage or income directly or
indirectly obtained from the violation.
Therefore, the administrative realm can
impose the sanctioning fine, whilst the judicial can take back the undue
advantage or income received.
The new legislation also
provides for a pact which enables to mitigate the corrective for companies
which collaborate with the investigations – leniency agreements. In addition to
the acknowledgment of the practice of the illicit act and the whistle blowing
in the process, the companies should fully remedy the damage caused to the
public coffers (paragraph 3 of art. 16 of the law), counting with the incentive
of the reduction in up to 2/3 (two thirds) of
the value of the administrative fine applicable. The effects of the leniency
agreement could be extended to legal entities part of the same economic group,
de facto and de jure, provided that they execute the commitment jointly,
subject to the conditions established therein (paragraph 5).
Art. 4, in that respect, in order to
preserve corporate reorganizations from being drawn in order to suppress the
responsibility of such specific sentenced company, instituted that the
responsibility of the legal entity in case of contract amendment, transformation,
incorporation, merger or demerger survives.
It must be
emphasized that paragraph 1 of art. 4 reveals that, in single merger and
incorporation situations, the responsibility of the successor is restricted to
the obligation of payment of fine and full compensation for the damage caused,
up to the limit of the transferred equity. For the case of contract amendment
and demerger, however, the successor shall pay for all succeeded debt, derived
from the Anti–Corruption Law.
See the
wording of such provision of the Anti–Corruption Law :
“ Art. 4. The responsibility of the
legal entity survives in case of contract amendment, transformation,
incorporation, merger or demerger.
§ 1 In case of merger and
incorporation, the responsibility of the successor will be restricted to the
obligation of payment of fine and full compensation of the damage caused, until
the limit of the transferred equity, not being applicable other sanctions
provided herein resulting from acts and facts occurred before the date of the merger
or incorporation, except in case of simulation or evident fraud intention, duly
proven.” (emphasis added)
However, the
scenario is disturbing, when KPMG consulting research with 80 (eighty) large
Brazilian companies shows that 80% (eighty percent) of them do not know the new
law very well. This percentage was verified in survey carried out during the
40th ACI's (Audit Committee Institute)
round table, independent initiative promoted by KPMG to discuss themes related
to corporate governance, risks, compliance,
among others.[2]
It is not only about companies’ finances, which will remain disrupted with significant administrative fines and the legal determination of refund of advantages inappropriately obtained. The potential negative effect of the conviction shall also be taken into consideration – or even the mere release by the press that certain company is being investigated – in the amount of the company's shares negotiated in the world's main stock exchanges, the reputation, image, loss of competitive advantage of the companies implied and the possible downgrade of the credit note by the risk evaluation agencies. If leniency agreement is not executed and results in administrative and/or legal conviction, there is, in addition to that, the possibility of following the disreputable status statement of the company to prevent it from taking place in bidding and/or hiring with the Public Administration.
A uniqueness related to the national economy takes
place to justify the concern with the subject. The figure of the States
inductor of political economies, in the so–called “State capitalism”, combines
the State forces with the capitalism forces, helping to explain results of
public policies involving corporate players of the country.
The State is participant and influent,
maybe more active than ever in the configuration of the Brazilian capitalism,
and may be seen even as the most highlighted funding of the economical
activity. Loans and funding granted by fostering agencies and banks, such as
the National Bank for Economic and Social Development – BNDES, and the acting
of pension fund of servants of state–owned companies shows the existence of a
leading State, which conforms and conducts the market.
There is great space, likewise, for
companies to hire with the Public Administration of a continental territorial
extension country, from the building of great public works to
the supply of inputs for the provision of public service, such as school
material and drugs. The State reform itself, with the reduction of
the size of the public sector, involved the
privatizations and the grants and the resulting creating of regulating
agencies, making the communication and proximity of public and private spheres
frequent.
This complex tangle of
relations between the forces of the State with the forces of the capitalism
foster an intense and repeated contact, however also seeder of a fertile land
to practice acts of corruption and fraud in bidding and administrative
contracts, concerning the Anti–Corruption Law – an almost three–year baby and
with content unknown by 80% (eighty percent) of large national companies – as
repression and correction measures to private companies.
Subsequently, a company
announced by information broadcasting means for controversial relations with the
State, being (i) merely investigated,
having (ii) executed leniency
agreement or (iii) already
administratively and/or judicially convicted, is found subject to significant
undermining and financial damages in their activities.
Here the path may be “inward” or, the
reverse, “outward”. In the first case, there is a company that, due to scandals
of illicit practices against the Public Administration, suffers successive
losses regarding its finances and pleads judicial recovery. The second is
configured when, in the course of the judicial recovery process originated by
several grounds, an act of anti–juridicity against certain public body in
found.
The judicial recovery, on the other hand,
intends, in the terms of art. 47 of Law No. 11.101/2005, legal framework that
the governs it, to make feasible the overcome of the economical–financial
crisis of the debtor, in order to enable the maintenance of the production
source, of the employment of workers and of the interests of the creditors,
thus promoting the preservation of the company, its social function and the
fostering to the economical activity. It is therefore the legal tool to solve
the corporate crisis, reorganizing the company and allowing equalization of the
liability and that the performance and the operations are not stalled, giving
them new chance of success.
What happens is that the recovery from a
financial crisis situation is extremely hard, without the possibility of
counting on new resources. At this moment of difficulty, the company needs capital
to proceed with its regular activities or even for it to reinvent itself to
overcome the crisis. Aware of this need, Law No. 11.101/2005 provides for some
alternatives, such as benefit granted to the creditor which remains betting on
the insolvent company and which provides goods, services or even resources
during the judicial recovery process (priority credits of art. 67) and the
extensive examples list of means of recovery, in order to enable all feasible
forms to the continuity of corporate activities (art. 50).
Among the procedures listed in art. 50 of
Law No. 11.101/2005, the most known : a)
demerger[3], incorporation[4], merger[5] of the business company (item II); b) constitution of integral subsidiary[6] (item II); c) alteration
of the corporate control (item III); d) full
or partial replacement of the debtor's
administrators or modification of their administrative bodies (item IV); e) trespass of the establishment (item
VII); f) transfer in payment of goods
(item IX); g) creditor's company
constitution (item X) or specific purpose, to award, in payment of credits, the
assets of the debtor (item XVI); and h)
partial sale of goods (item XI).
The controversy, identified in a precursor
manner by professor Cássio Cavalli, in symposium at Rio de Janeiro Commercial
Association, lies on defining which of the repair mechanisms of a company in
judicial recovery process (art. 50) , which was or should be convicted for
illicit act against the Public Administration, may cause the mentioned transfer of
responsibility of art. 4 of the Anti–corruption
Law, with
the obligation of payment of administrative fine and/or refund of advantages
unduly obtained.
The strongest argument, favorable to the
transfer, is in the specific limit to the judicial
recovery plan found in the heading of art. 50 of Law No. 11.101/2005, which, by
listing, but not limiting, the forms of judicial recovery, determines the
compliance with the “legislation relevant to each case”.
This, in case the plan provides the demerger,
the incorporation or transformation of the company, or transformation of quotas
or shares (item II of art. 50) ; as well as alteration of the controlling
interest (item III of art. 50) and the replacement of the debtor company's
administrators (item IV of art. 50) , which are types of compensation
mechanisms for corporate reorganization, the applicable corporate legislation
(as Law No. 6.404/1976) to each case shall be observed. If the plan, of another
part, results in concentration act that shall be analyzed by the Administration
Council of Economic Defense – CADE, commits the competition legislation. If,
from another point of view, the plan involves corporate reorganization of
company entangled with illicit act against the Public Administration, the anti–corruption
legislation shall be used and, subsequently, its art. 4, surviving the
responsibility to the resulting product.
Especially regarding the disposal of assets
(item VII of art. 50) , it innovated Law No. 11.101/2005, as well as paragraph
1 of art. 133 of the National Tax Code, with amendments of Complementary Law
No. 118/2005, regarding the so–called “insulated productive units”, popularized
under the initials UPI, handling the theme of debts succession, excluding the
succession of any nature, including regarding tax debts, upon legal disposal of
branch or insulated productive unit in judicial recovery process.
The purpose of the legisAlegreyar was clear:
enable and, above all, encourage the entry of resources of the company with
financial difficulties through the sale of part of its establishments and/or
assets, adding the benefit of the absence of succession and, then, potentially
increasing the number of buyers interested and improving the prices of such
assets.
Thus, as per art. 1.142 of the Civil Code,
the factory, plant, shipyard, refinery, distillery, courier, industrial or
commercial establishment, with all its goods, estates, facilities, equipment,
machinery, material and immaterial elements, or perhaps a separate set of these
productive units, or also intangible property entitled to title of slots and holtrans in airports, judicially sold, shall belong to another company, under new control and administration.
In this sense is the wording of the sole
paragraph of art. 60 :
“ Art. 60. If the approved judicial
recovery plan involved judicial disposals of branches or isolated productive
units of the debtor, the judge will order its performance, subject to the
provision of art. 142 of this Law.
Sole paragraph. The object of the disposal
will be free from any burden and there will be no succession of the bidder in
the obligations of the debtor, including those of tax nature, subject to the
provision of § 1 of art. 141 of this Law.”(emphasis added)
And paragraph
1 of art. 133 of the National Tax Code :
“ Art. 133. Individual or private
legal entities acquiring another, under any capacity, commerce or commercial,
industrial or professional facility fund, and continue the relevant
exploration, under the same corporate name or under signature or individual
name, is liable for the taxes, related to the fund or establishment acquired,
due to the date of the act :
[...]
§ 1 The provision of the heading of this
article does not apply in case of judicial disposal : (Included by Lcp No. 118,
of 2005)
[...]
II – isolated branch or productive unit, in
judicial recovery process. (Included by Lcp No. 118, of 2005)” (emphasis added)
Therefore,
regarding the trespass of establishment, the sole paragraph of art. 60 of Law No.
11.101/2005, expresses an absolute clause which establishes that the pure,
simple and sole judicial disposal of isolated branches or productive units of
the debtor (item VII of art. 50) leave them entirely free and disentangled from any burden. An
administrative and/or judicial sanction, whether by absence of provision of the
Anti–Corruption Law or the provision in the sole paragraph of art. 60 may not
reach the disposed establishment.
Be noticed that the heading
of art. 60 makes reference to the “judicial disposal” and the final part of the
provision details the duty of the judge, in case of ordering its performance, subject to the provision of art. 142 of
the law.
Art. 142, intending to assure the
impersonality and the principles of equality throughout the process, depicts :
“ Art. 142. The
judge, having heard the judicial administrator and following the guidance of
the Committee, if any, will order to proceed with the disposal of the asset in
one of the following modalities :
I – auction, by oral bids ;
II – closed proposals ;
III – trading.
§ 1 The performance of the disposal in any
of the modalities to which this article regards will be preceded by publication
of announcement in widely circulated newspaper, 15 (fifteen) days in advance,
regarding movables, and 30 (thirty) days in the disposal of the company or of
real estate, offering the disclosure by other means which contribute to the
wide acknowledgment of the sale.
§ 2 The disposal will be given by the
highest value offered, even if below the evaluation value.
[...]” (emphasis added)
Art. 144 also in the same
chapter, in turn, enshrines true general clause
which enables the judge, before the porosity of the clause – open texture – to
enable the handling of the general rule of art. 142, adjusting the right to the
reality and dimension of the concrete case.
“ Art. 144. In case
of justified reasons, the judge may authorize, upon reasoned requirement of the
judicial administrator or the Committee, judicial disposal modalities different
from the ones provided in art. 142 of this Law.” (emphasis added)
The set of problems arises when the
judicial disposal of isolated branch or productive unit, in judicial recovery
process, comes with corporate reorganization.
On this point, it is worth
reminding that the Anti–Corruption Law, in its
art. 4, enshrines the will of the legisAlegreyar of limiting the transfer of
responsibility by succession to certain adamant and express scenario, notably
to cases of corporate reorganization, among which includes the demerger,
incorporation, merger and contract amendment. Such options are
considered means of judicial recovery in items II and III of art. 50 of Law No. 11.101/2005.
As successful example of judicial recovery
through a corporate reorganization mechanism also instilled with judicial disposal of isolated productive units, there is the
precedent of “Casa & Vídeo”, chain that commercialized household appliances
and tools, in final phase of proceedings in the 5th Business Court
of the Court of Justice of Rio de Janeiro and conducted by judge Maria da Penha Victorino.
The trigger of the retail crisis was the
Operation “Negócios da China”, joint action of the Federal Police, Federal
Revenue and Federal Prosecutor, in November, 2008, which investigated crimes of
tax evasion, smuggling and money laundering by managers of the company and
arrested thirteen members of the administration of the conglomerate.[7]
Three companies of the group requested
recovery: “Mobilitá Comércio, Indústria e Representações LTDA” and “Lar e Lazer
Comércio e Representações LTDA”, which were the operational companies, and
“Paraibuna Participações LTDA”, original holder of contractual entitlement of
use, enjoyment and fruition of the majority of the commercial sites of
“Mobilitá” and “Lar e Lazer”.
The continuity of the performance of the
economical activity occurred through segregation of the activities of the
companies in recovery in three isolated productive units: “Casa e Vídeo
Licenciamentos” (company which exclusive activity is the licensing of “Casa
& Vídeo” brands and others for economical exploitation in the States of Rio
de Janeiro, Espírito Santo and other States of the Federation); “ Casa e
Vídeo Rio de Janeiro ” (company which activity is the operation of retail
activity in the State of Rio de Janeiro, enabling expansion, web sales and
telesales; and “Casa e Vídeo Espírito Santo” (company which activity is the
operation of retail in the State of Espírito Santo, enabling expansion, holding
store in Juiz de Fora and excluding web sales and telesales).
The judicial recovery plan, certified on
October, 2009, also provided for judicial disposal of each of the productive
units with the acquisition of corporate control by the stock corporation “Casa
e Vídeo Holding S/A”, controlled by an investment fund referred to as “FIP
Controle”, comprised of opt–in creditors which converted their credit into
shares of such fund with 50% (fifty percent) discount and by financial
investors.
If, at the
time of the facts, there was the Anti–Corruption Law in force, the "Casa
& Video" Group could have been, given the nature of the practices
harmful to the Public Administration for which it was investigated, convicted
in the administrative and civil sanctions of the reference normative. Should
this happen, in addition to the severely hinder the judicial recovery, there
was a sensible legal antinomy between art. 4 of the Anti–Corruption Law and
art. 60, sole paragraph of the Recovery Law and special affection to “Casa e
Vídeo Holding S/A”.
On one side,
the rule surviving the responsibility of the legal entity in case of corporate
demerger and contract amendment upon illicit act before the Public
Administration (art. 4). On the other side, the standard provides free from any
burden the judicial disposal of branches or insulated productive units of the
debtor in the judicial recovery process (art. 60 sole paragraph).
As, in the
distance, it escaped from materializing the mentioned paradox, the future
forecasts assertiveness.
The inclusion
of OAS, one of the largest construction companies in Brazil, in the
investigation of Car Wash Operation, restricted the credit offer to the company
and brought doubt regarding its capacity of getting new contracts with the
government. In this regard, the contractor's credit note was downgraded by
the rating agency Standard
& Poor’s, in January, 2015, which resulted in the advanced maturity of its
debts.[8]
It was in
this scenario that, abruptly, the short term cash situation of the companies of
the conglomerate suffered deterioration, occasion which caused an inevitable
default in national and foreign creditors. In order to prevent bankruptcy, ten
companies of OAS Group, based in Brazil and abroad, presented, in March, 2015[9], single
judicial recovery requirement, now in progress at the 1st Court
Specialized in Bankruptcy and Judicial Recovery of the Court of
Justice of São Paulo. OAS recovery plan was certified by the court on
January 27th, 2016, being the judicial recovery concurrently
granted.
In the
mentioned recovery plan, there appears on page 15, items 3.1.1 and 3.1.4, as
means of recovery, precisely the disposal of goods of the permanent asset with
the corporate reorganization :
“ 3. Means of Recovery
3.1. Overview of the Means Recovery. For
Member Companies of the OAS Group to be able to recompose the working capital
necessary for the continuity of their activities and preservation of their
assets, as well as for the development of its business plan in a scaled manner,
without loss of the DIP funding, is essential that Member Companies of the OAS
Group can, within the Judicial Recovery and within the limits established by
the Bankruptcy Law and by this Plan, adopt the following means of recovery :
[...]
3.1.1. Disposal of Goods of the Permanent
Asset. Member Companies of OAS Group, when applicable, intent to promote the
disposal and/or encumbrance of goods part of its fixed asset, except for those
part of the new business plan of the Member Companies of OAS Group, in the
terms of Clause 5. Thus, some of the corporate interests held by OAS will be
disposed.
[...]
3.1.4. Corporate Reorganization. Member Companies of the OAS Group may undergo
procedures for corporate reorganization, in order to obtain the most appropriate
corporate reorganization for the development of their activities such as scaled
in the context of the Judicial Recovery and the business plan resulting from
the deployment of this Plan, always in the best interest of the Member
Companies of OAS Group, their Creditors and aiming at the success of the
Judicial Recovery.”[10]
(emphasis added)
Adding to the
stipulation of the means or corporate reorganization in OAS's recovery plan,
with the fact that the company did not succeed – at least yet – in concluding
the leniency agreement with the relevant authorities (or even though executed,
as it is not influent for the result), there is the eminent normative conflict
scenario.
Anyway, OAS
already has the judicial recovery granted and could be surprised at all moments
with an administrative and/or judicial proceeding for
accountability and, further along, with possible conviction. This hesitation
context, especially regarding succession, unsettles and drives away potential
investors of the disposal of facilities and/or goods and of the corporate reorganization, hindering the success of the group's
judicial recovery.
And, finally,
is the transfer of responsibility for succession verified when there is a
judicial recovery with corporate recovery cumulated with the assets' judicial
sale?
It is argued,
by the sympathizing side, the need of ensuring the reaffirming
the legal order. Therefore, no exception may be made to fail punishing a
company for compensation because it is in a crisis situation.
It is known that the
corruption of one of the great evils affecting the society. Political, social
and economical costs it entails are notorious. The political legitimacy is
committed, the democratic institutions and the moral values of the society are
weakened, besides also producing an insecurity environment in the economical
market, committing the economic growth and chasing new investments away.
Therefore, corruption control assumes the fundamental role in the strengthening
of the democratic institutions and the feasibility of the country's economic
growth, being the punishments based on the Anti–Corruption Law acting as a
deterrent and inhibitor factor of new practices by the social entity.
Furthermore,
due to a legal reason, the Anti–Corruption Law, of 2014, is chronologically
younger than the Recovery Law of 2005, and should prevail over later standard.
To this principle the Latin term “lex
posterior derogat legi priori” is designated, that is, later law waives
previous laws.
And by
specific criterion, the supremacy of the most specific standard to the case
concerned is understood. Therefore, in case of two existing standards
incoherent with one another, by providing on the conflicting object it is
observed that one of them holds a more specific nature, in opposition to a more
generic complexion. In the conflagration of provisions analyzed, the general
norm sets out the transfer of the responsibility by succession on case of
judicial disposal of isolated productive units of companies with corporate
reorganization (Recovery Law). As for the specific norm, it set out the
identical situation, adding the peculiarity of handling companies involved with
illicit acts against the Public Administration (Anti–Corruption Law).
Moreover, it
should be noted, the heading of art. 50 of Law No. 11.101/2005, which, by
compiling for instance the means of judicial recovery, imposes the duty of
complying with the "legislation relevant to each case", therefore
engaging the transfer of responsibility laid on the Anti–Corruption Law.
Furthermore,
in order to get rid of the effects of the convictions based on the Anti–Corruption
Law, the companies under reorganization will have incentive to introduce in the
plan and, later, operate a judicial disposal of isolated branch or productive
unit, as minimum or unnecessary to overcome the crisis, but with the scope of
only escaping art. 4 of mentioned law, turning it into non–applicable alignment
and ignoring its original function.
Otherwise,
the primary purpose of preserving the company is presented (art. 47 of Law No. 11.101/2005).
Therefore, the maintenance of the production source, of the employment of the
workers and the interests of the creditors should be privileged, thus promoting
the preservation of the company, its social function and the trigger to the
economical activity.
Eventual
opposite decision, for more, could mistreat the principle of proportionality.
It is worth reminding that article 8 of the new Civil Procedure Code determines
that "by applying the legal system, the judge will meet the social
purposes and the demands of the commonwealth", besides observing
"proportionality". A measure taken with the purpose of ratifying the
fight against corruption generates, as side effect, restriction to the
collectivity of creditors, to the company's employees, to the Public
Administration itself as recipient of taxes and the consumers (if the company
under recovery is a concessionary of public services), being necessary thorough
weighting between damage and benefits to evaluate the validity of the measure.
The specific
criteria, in turn, may also work on the other side. As it is in the midst of a
judicial recovery process, it can be understood that Law No. 11.101/2005 is the
most specific to the concrete problem, the Anti–corruption Law being more
generic, and applicable to the cases unregulated by special legislation (as the
recovery).
And,
completing the last argument, it may be sustained that the single means of
judicial recovery set out in art. 50 of Law No. 11.105/2005, which does not
apply the priority legislation comprises in the disposal of isolated productive
unit (item VII of art. 50 of the LRF), due to the matter being expressly
governed by Law No. a11.101/2005.[11]
Whichever the
alternative to be adopted, both Law No. 11.101/2005 and Law No. 12.846/2013
bring huge challenges that time and superior courts will be responsible for giving
the correct solution, above all regarding a legislation painted with legal and
economical paints having immediate and important reflect in the economy of the
country.
While there
is no right answer for the demarcation of the issue, the uncertainty on the
possibility of succession of debts causes instability
and inconsistency to investors and potential interested parties in the
acquisition of the goods of the company in judicial recovery and/or its
corporate reorganization. Those will finally cease mobilizing resources, before
the huge risk of seeing the successor product of
the corporate reorganization be reached by the wrath of the anti–corruption
legislation.
If the legisAlegreyar did
not worry about minimizing this uncertainty scenario, it is a duty of the
involved right operators (the recovery judgment, the Public Prosecution and
the administrative authorities in charge) to establish mutual
internal legal cooperation, as suggested by art. 67 and subsequent of the new
CPC.
In this
regard, the lesson of Minister Marco Aurélio Mello is valuable, by saying, in
lecture at the University of Coimbra in July, 2015, that :
“ [...] The Law, by prevailing the legal security, can minimize the modern risk
of uncertainties. If the Era of Uncertainties is a fact, the Law should, in
favor of the citizens, act against its undesired consequences. Before this
frame, here is the question that sustains this brief exposure: Does the Law
still offers us safety ?"[12]
(emphasis added)
If the absence of
definitive answer to the question exposed does not provide safety to investors,
so that they need it and predictability to conduct, plan
and conform their financial investments in companies in judicial recovery; the
a forementioned players should exercise a more proactive role and internal
legal cooperation, as suggested by CPC–2015, intending the removal of legal
uncertainties to preserve the company.
Thus, in an advanced
manner and without any precipitation of judgment, it may be estimated the
pricing of the value of the administrative fine and the refund of advantage or
income unduly received, as well as evaluate the possibility of the company
under recovery filling or not the requirements according to leniency and also
budget its potential deductions. Therefore, those who wish to put money in the
company will have foresight of the possible total debt of the company
(including the millionaire penalties which may arise from the Anti–Corruption
Law), being more able to decide whether it is worth to perform the investment
and to calculate more accurately the return rate.
Such mechanism also
intends to protect the shareholders of the company under recovery, minimizing
speculations in the market around the value of the shares and, equally, intends
to restrict the financial volatility of the company, that is, limit
the variable which shows the intensity and the
frequency of the variations of the different assets.
Finally, with
this exposure, the intention is to cause a reflection on the legal autonomy
arising from two important legislations — art. 60, sole paragraph of the
recovery law and art. 4 of the anti–corruption law – which carried reflexes in
the country's economy.
Therefore,
the participation of the recovery judgment, of the Public Prosecution and of
the administrative authorities in charge is vitally important for, in an
internal legal cooperation environment, as urged by art. 67 et. Seq. of the
Civil Procedural Code, recently–edited, bring to light the investor interested
in mobilizing resources in the company under recovery, while not defined by the
case law of the superior courts, if the responsibility to the successor is
transferable in case the recovery plan provides for disposal of assets shared
to the corporate reorganization. Therefore, the need of estimate and
predictability of the wealth mobilizer is equalized eagerly of the company for
having whom to capitalize it, while the Law does not offer the final express
safety on the subject.
[1] That is what §1 of art. 3 of the
Anti-corruption Law provides: “Art. 3 The accountability of the legal
entity does not exclude the individual accountability of its officers or
managers or any other individual, author, co-author or accomplice of the
illicit act. § 1 The legal entity will be accountable
regardless of the individual accountability of the individuals mentioned in the
heading.”
[2] Available on :
https://www.kpmg.com/BR/PT/Estudos_Analises/artigosepublicacoes/Documents /Advisory/pesquisa-compliance-no-brasil.pdf,
Access on July 24th, 2016.
[3] In the terms of art. 229 of Law No.
6.404/1976, regarding stock companies, “demerger is the
operation through which the company transfers installments of its equity to one
or more companies, constituted to this end or already existing, extinguishing
the split company, if there is version of all its equity, or dividing its
capital, if the version is partial.”
[4] In the terms of art. 227 of Law No.
6.404/1976: “incorporation is the operation through which
one or more companies are absorbed by another, which succeeds them in all
rights and obligations.”
[5] In the terms of art. 228 of Law No.
6.404/1976: “merger is the operation through which two or more companies are
joined to make up a new company, which will succeed them is all rights and
obligations”
[6]
According to art. 251 of Law No. 6.404/1976, “the company
may be incorporated, upon public deed, having as sole shareholder a Brazilian
company.” There is also, according to art. 252 of the same law, the possibility
of establishing a wholly-owned subsidiary with “the incorporation of all shares
of the share capital to the equity of another Brazilian company.”
[7] “Federal Police and Revenue make operation
in large retail chain” Available on <http://oglobo.globo.com/economia/policia-federal-receita-fazem-operacao-em-grande-rede-varejista-3815152> Access on July 25th, 2016.
[8] C. Maia, “OAS deixa de fazer pagamento e tem rating rebaixado
pela S&P”,Valor Econômico, January 05, 2015, <http://www.valor.com.br/empresas/3844994/oas-deixa-de-fazer-pagamento-e-tem-rating-rebaixado-pela-sp>
Accessed on Jul 25th, 2016.
[10] TJSP, May
19, 2015, “Plano De Recuperação Judicial De Oas S.A. – Em Recuperação Judicial,
Construtora Oas S.A. – Em Recuperação Judicial, Oas Investimentos S.A. – Em
Recuperação Judicial, Oas Infraestrutura S.A. – Em Recuperação Judicial, Oas
Empreendimentos S.A. – Em Recuperação Judicial, Oas Imóveis S.A. – Em
Recuperação Judicial, Spe Gestão E Exploração De Arenas Multiuso S.A. – Em
Recuperação Judicial, Oas Investments Limited, Oas Finance Limited, Oas
Investments Gmbh” Available on :
<http://www.oas.com/lumis/portal/file/fileDownload.jsp?fileId=8A81A3934D2F94C8014E3FE249C81C4B>
Accessed on July 25th, 2016.
[11] L. Ayoub; C. Cavalli, “A construção
jurisprudencial da recuperação judicial de empresas”. Rio de Janeiro: Forense, 2016. p. 231.
[12] M. Mello
“Direito em tempos de incertezas”,
Migalhas, Available on
< http://www.migalhas.com.br/Quentes/17,MI223331,41046-O+Direito+em+tempos+de+incertezas+por+Marco+Aurelio+Mello> Accessed on July 26th, 2016.