Manual
of Good Practices for Judicial Reorganization
by Daniel
CARNIO COSTA - Judge of the 1st Bankruptcy Court, Judicial
Reorganization and Conflicts arising from Arbitration of São Paulo, PhD at
PUC/SP and Postdoctoral Degree at the University of Paris 1 Panthéon
Sorbonne and Alexandre NASSER DE MELO – Graduation
degree at PUC/PR, Lawyer, Trustee and Specialist in Business Law.
This article
has the aspiration to analyze the best possible practices in Judicial
Reorganization of all agents involved, being them the Judge, the Judicial
Administrator or Lawyers.
In addition,
it will also make a thorough investigation on the reflexes of conjoined
activities of these professionals under the scope of Judicial Reorganization.
In that
manner, it is necessary to conceptualize the obligations, powers and duties of
all those agents that integrate insolvency litigations, including third parties
who might have interests in the dispute.
It is also an
objective of this study to demonstrate the numerous procedures difficulties
found in the unravel of litigations, as well as to propose ways to facilitate
the conjoined activity of the Judicial Administrator, Judges, creditors and
companies in Reorganization, that allows the resolution of such issues in an
agile and effective manner, steering the Judicial Reorganization to a success
or to a swift award of bankruptcy at the appropriate time, avoiding social
costs.
Being a
special procedure, regulated in a specific law, there is the demand for a
special judge, whose attention to detail is vital in complex Judicial Reorganization
cases, especially in districts where there are no specialized Courts.
This occurs
because litigation involves, normally, interests from a large number of
creditors, claiming for a refined accounting/financial verification and
counting on social and economic relevance and prestige. Concomitantly, these
are sporadic cases in the daily basis of a judge, making it difficult for the
non-specialized judge, to deepen and study constantly the novelties of theme,
which possesses individualized procedures and numerous specificities.
Additionally,
these procedures tend to involve the positive acting of a diverse group of
Court auxiliaries, such as the Judicial Administrator, experts, accounting
specialists, auctioneers and evaluators.
Therefore, it
will be shown in this article the set of basic tools available to the Judge in
the steering of the Judicial Reorganization.
Although article
47 of Act no. 11.101/2005 has defined objectives of the Reorganization
procedure (preservation of viable companies; maintenance of companies’ social
function; stimulation of economic activity; maintenance of jobs and guardianship
of creditors and collectivity rights), the norm did not clarify in a textual
manner the limits of the agent’s activities and their role in Judicial
Reorganizations.
With the
purpose to delimitate the judge’s actions in these procedures, it is imperative
to comprehend the systemic interpretation of the norms, principles and
provisions embraced in the Law between themselves and with other legislations
correlated that interact during the procedure.
The first
point of complexity to be faced by judges in Judicial Reorganization
proceedings resides in the decision that analyzes the granting of the
Reorganization request.
Despite
looking trivial the analysis of the possibility to rule on a Reorganization
request, this is one of the most debated aspects in the contemporary business
law in Brazil, either by the doctrine or by Court’s precedents. The discussion
of which should be the pattern of analysis of documents that instructed the
request is key to approve the beginning of the Reorganization procedure. Some
defend that the purely formal analysis of documents demanded by law would
suffice while others argue that a material and detailed analysis is the best
method. In this context is where the so profoundly polemic of previous analysis
arises.
Previous
Examination consists in an informal verification determined by Court before
granting the request of Judicial Reorganization, with the aim to ascertain the
regularity of the technical documentation that accompany the complaint, as well
as the real conditions and adversities of the Company that requested the
Judicial Reorganization, so the judge can adequately appreciate the conditions
underlying the conflict before deciding positively or negatively about the
processing request.
The company
capacity to generate job posts and income, circulate goods and services, wealth
and taxes are a logical presupposition of the Judicial Reorganization.
The
identification of the real conditions of the company in crisis is essential to
the suitable application of the legal remedy. The wrongful employment of
insolvency tools produces severe social costs: loss of viable economic
activities with the consequent loss of potential job openings and, therefore, a
reduction of income tax and wealth. Conversely, the good application of
insolvency tools could end the artificial maintenance of businesses that have
shown impracticable, not generating the economic and social benefits in overall
disservice to the interests of society and the proper market functioning.
In this
circumstances that the previous examination shows its relevance.
What is the
point in initiating a judicial reorganization, imposing to creditors and
general society the heavy burden of reorganizing the financial health of a
business (credit renegotiation , amendments in original conditions of signed
contracts with the company in reorganization and suspension of all litigations
and executions already filed against the debtor) if, from the beginning, it is
possible to verify that the corporation will not be able to fulfill the
commandments that the law expresses as vital, even if the reorganization is
granted. What justifies the imposition of these conditions to the creditors if
there is no counter effort that satisfies the social/public interest that will
balance the hardship endured by creditors?
Even though
there is no expressed legal provision on the application of the previous
examination, the adequate interpretation of article 52, caput, Act no. 11.101/2005, made by the newest doctrine intends to
surpass the hermeneutic theory of pendular dualism, unequivocally authorizing
its application.
Article 52 of
Act no. 11.101/2005, presents the idea that once documentation requested in the
article is complete, the judge will approve the processing of the
reorganization request. But how should the law practitioner interpret the
expression "being in terms the documentation"? Should the Judge
simply make a formal analysis of the documents or disregard the evaluation of
the consistency reflected substantially in those documents? The best
interpretation of the law, in a way to overcome the pendular dualism, is never
the one who protects the material rights in dispute (creditor and debtor) but
the one that allows the law practitioner to guarantee the effectiveness of the
system in which the material relations take place. Hence, it does not aspire to
protect neither party, but to guarantee that the insolvency system attains
efficiently its purpose. In these terms, it strongly appears that the
expression "being in terms the documentation" demands that the judge
thoroughly study said documentation and its correspondence with the present
reality of the corporation. Definitively, that is the best interpretation when
it comes to assuring the concrete effects and efficiency of the objectives
presented in the insolvency legislation.
It is shown in
article 156 of the Civil Procedural Codex
that the judge will be assisted by an expert when the exhibit depends on
technical or scientific knowledge. Furthermore, article 481 of the same codex provides that the judge can, at
any given time, inspect people or things in order to elucidate facts that may
be of interest to the case. It is of extreme relevance to point out that
article 189 of Act no. 11.101/2005 translucently expresses that the Civil
Procedure Code will be used in a subsidiary manner in reorganization
proceedings.
Thus, having
the necessity to verify the content, the consistency and completeness of the
technical documentation brought forth with the complaint and its correspondent
effects with the phatic reality of the company, the judge may appoint an expert
to work on the substantial analysis of these documents, as well as to inspect
and confirm the real conditions of the company while running. Clearly, this
well refined study is imperative to the judicial decision that will conclude
the operation and admit the reorganization or award of bankruptcy.
It is worth to
observe, however, that the previous examination is not properly an official
investigation. Being a hybrid figure that has the nature of a preliminary and
informal observation done by a qualified professional with necessary technical
knowledge, aiming to supplement the Court with enough information to guarantee
that the objectives of the Law are going to be met.
Once the
expert is appointed[1],
the previous examination should be concluded within 5 (five) days. This short
period is necessary due to the publicity given by the filing of the complaint.
Consequently, creditors have the information that the defaulter has filed a
reorganization request. However, the protection of the stay period only begins, in the Brazilian system, when the request
is granted by the Court. Thereby, the judge does not have an extended period of
time to understand the case and make a correspondent decision, under penalty of
putting the defaulter's patrimony at the mercy of opportunistic attacks from
creditors.
It is not the
goal of the previous examination to analyze the economic viability of the
claimant. First, because it is impossible to attest the viability of the
business in such an embryonic phase of the procedure. The company's feasibility
depends on a plural set of external factors that are not possible to the judge
to apprehend. Moreover, the economic viability of a business or company is a
decision that the market must make. Thus, the creditors are the ones who should
believe in that entrepreneurial activity and in the importance of its
maintenance. A judge cannot substitute the key role of creditors in the
decision on the economic viability.
In that sense,
the previous examination intends to analyze only the capacity of the company in
generating jobs, taxes, goods, services and wealth. Being sufficient the
verification that the business exists, has employees, clients and contracts.
The practical
experience of the 1st Court of Bankruptcy and Judicial Reorganization of São
Paulo shows that by using the previous examination as a tool it can reveal four
different situations: a) the inexistence of any entrepreneurial activity; b)
irregularity or incomplete documentation; c) fraud; and d) functional
incompetence of the Court.
Demonstrating
with the previous examination that the economic activity does not exist, the
complaint must be dismissed and the proceedings must be extinct without
analysis on the merits because of the lack of procedural interest. This is
because a Judicial Reorganization is not the adequate legal remedy for a
company in structural crisis that cannot overcome this situation.
In case of
irregularity or partial lack of documentation, the judge has to grant a time
lapse suitable for an amendment of the previous complaint. When the
regularization happens, the judge has to rule in favor of the request,
therefore initiating the Reorganization procedure. On the contrary, the judge
will dismiss the complaint and order the case to be dismissed without
resolution of merits with grounds on the article 321 and sole paragraph of the codex of civil procedure.
In cases of
fraud, there is a similar situation as if there was the inexistence of the
entrepreneurial activity. The judge must not allow that the proceedings are
used with other means that are not those foreseen in the insolvency
legislation. There will be, consequently, lack of procedural interest that
imposes the extinction of the action without resolution of merits.
But, in this
particular hypothesis, the judge is obliged to send a copy to the State
Prosecutor's office with the finality of discovering possible criminal
responsibilities. It is important to understand that if the fraudster tries to
file the action again, the new complaint will be sent to the same prior judge,
attending to article 286, section II, codex
of civil procedure, that provides that the new filing of the action should be
sent to the same judge.
The previous
exam may, still, give the clear notion that the reorganization request was
filed to the Court where it does not have its main business venue. In this
sense, the case must be filed again before the correct and competent Court.
Jurisprudence
has evolved and is broadly sheltering the usage of the previous exam by judges.
There are, for example, precedents in the State Court of São Paulo
(Interlocutory Appeals no. 2008754-72.2015.8.26.0000; no.
0194436-42.2012.8.26.000045 and no. 2058626- 90.2014.8.26.00004), in the State
Court of Santa Catarina (Interlocutory Appeal no. 4005558-80.2016) and in the
State Court of Paraná (Interlocutory Appeal no. 0000745-65.2017).
Lastly, the
data acquired and presented in a study made in the Pontifical Catholic
University of São Paulo, PUC/SP, denominated "Insolvency
Observatory", brought up evidence that the previous examination
represents, candidly, a measure that grants access to the juridical order.
Such
confirmation appeared because the access to Justice, constitutionally
guaranteed, does not simply translate into the right to take a case to the
Court but rather in the right to have the useful result of litigation.
Corporations in crisis, but viable, must have assurance of their right to a
useful judicial procedure, with the preservation of the activity and the
consequent economic and social benefits that comes with it.
It is valid,
in the scope of the Brazilian judicial reorganization system, to deduct that
the economic analysis of the Reorganization Plan is exclusively part of the
competence of the General Creditors Assembly, possessing sovereignty in the
decisions to be made along the reorganization process.
However, this
would be a frivolous and a nonanalytic interpretation of the law put at lumen, for there are cases of approval
by the General Assembly of Creditors of a flagrantly illegal Reorganization
Plan, as well as the dismissal of a perfectly legal plan, whose decision of
rejection was motivated by the interest of one or more creditors with
expressive voting power.
This type of
occurrence must be, certainly, subject to the judge's attention as the
principles that govern the Reorganization Procedure must be respected, even by
the General Creditors Assembly, which cannot dodge the enforcement of the
mandatory public norms, commonly denominated in the Brazilian system as simply
norms of public order.
A segment of
the doctrine defends that the sovereignty of the General Creditors Assembly has
limitations, related to the necessities of sheltering public interest, notably
through the social function of the entrepreneurial activity.
It current
understands the Reorganization Procedure as a provision of Public Law,
therefore, as an amplification of the Court's original jurisdiction, so it will
be possible to apply a diversity of judicial institutes ex officio, or without initiative of neither of the parties.
The Brazilian
judicial system has its attention specially directed to norms that shelter
public interest as opposed to private interest. This has a duality of
consequences. On the one hand it contributes to the augmentation of
difficulties to the materialization of the private interest, decreasing the
risk of private opportunistic behavior, hence assuring the consecution of
collective interests.
In that
manner, Eduardo Secchi MUNHOZ teaches:
“From this we can affirm
that bankruptcy law - or the company in crisis - corresponds to one of the
branches of business law in which the social function of the company is most
clearly evidenced, or the need to contemplate all the affected interests, which
are not summarized interests of the entrepreneur. External interests, at the
moment of the crisis of the company, come to the fore, alongside the inmates.
The first directive to be followed, therefore, is that, in addition to the
interests of the debtor and the creditors, the right of the company in crisis
should seek an efficient organization of all other interests, focusing on the
pursuit of the public interest Roman meaning, that is, of the people's
interest), expressed in the principles and objectives of the economic order
established in article 170 of the Federal Constitution of 1988. In a word, it
is assumed that the right of the company in crisis constitutes an important
instrument of implementation of public policies, constituting one of the
chapters of economic policy.”[2]
In reference
about this, Jorge LOBO asserts:
“(...) because the Law of
Judicial Reorganization and Bankruptcy guarantees the debtor, fulfilling the
formal requirements of article 51 and its material requirements of article 48,
to propose judicial reorganization action; affirm, with emphasis, that if
judicial reorganization is effective and implemented through a procedural
action of a constitutive nature, it is an institute of Public Law, in line with
the Italian doctrine on ‘controlled administration’, ‘extraordinary
administration’, and the ‘co-act administrative settlement’”.[3]
On the other
hand, other part of the doctrine understands that the Judicial Reorganization
possesses the character of Economic Law, because, in the saying of LOBO:
“Although ‘complex act’
and ‘constitutive action’, judicial recovery has the nature and characteristics
of an institute of Economic Law, as I will demonstrate. I join the doctrine,
led by Orlando Gomes, which supports (a) that the Economic Law is located in an
intermediate area between Public and Private Law, (b) has a threefold unity: ‘spirit,
object (c) the rule of law is not guided by the idea of justice (principle of
equality), but by the idea of technical efficacy due to the special nature of
the legal protection that emerges, in which general and collective, public and
social, which it Colima preserve and serve as a priority, hence the public
nature of its norms, which are materialized through ‘prince fact’, ‘legal
prohibitions’ and ‘exceptional rules’’. In fact, judicial reorganization of an
enterprise is an institute of economic law, because its rules do not aim to
achieve the idea of justice, but above all to create conditions and impose
measures that allow companies in a state of economic crisis to restructure,
even if with partial sacrifice of its creditors ...”.[4]
Concurring
with the above mentioned, understands Sérgio
CAMPINHO:
“Therefore, in our view,
the institute of judicial recovery should be seen as the nature of a judicial
contract with a new feature, realizable through a recovery plan, obeyed by the
debtor, determination of objective and subjective order conditions for its
implementation.”[5]
The lesson of
CAMPINHO evidences the fact that the reorganization procedure possesses, a priori, the character of a legal act interpartes, which is done inside of a judicial
litigation, with the consequent inspection by the Judiciary and the parquet.
Such
understanding comes from the fact that the Reorganization Plan is presented by
the debtor to the creditors that, may or may not, in assembly, be approved,
constituting, the way shown by CAMPINHO, a legal act with evident “innovative
features”, meaning that it is capable of creating an alteration or modification
of legal acts preterit to the Reorganization.
The position
of Minister Nancy Andrighi, member of the Superior
Justice Court, when judging an Appeal, highlights the necessity of compliance
with formal validity requirements:
“The board of creditors
is sovereign in its decisions regarding judicial recovery plans. However, the
deliberations of this plan are subject to the validity requirements of legal
acts in general, which are subject to judicial control.”[6]
In general
sense, the Reorganization procedure can be seen as an institute of public law,
as well as an institute of private or economic law, but in the end it is solid that all the parties of the proceedings must
act guided and motivated by the purest legalist spirit, without distancing from
the implacable fulfilling of the existing and valid law of Brazilian
jurisdiction. Thus, all the parties involved in the business Reorganization
have to, necessarily, apply the principle of legality as the conductor of their
actions.
It is for this
exact reason that to the Judge is assigned the role of the legality analysis
and control of the plan of judicial reorganization. In order to facilitate the
mentioned control of legality, the inspection must be done in four different
phases, called the tetra phasic criteria, aimed to assist the Judge in the
exercise of control in a systematic and complete manner.
Act no. 11.110/2005,
that regulates insolvency in the Brazilian territory, bestowed great powers to
the participation of creditors, such as the possibility of habilitating
credits, pleading a Defense, presenting objections to the Reorganization Plan,
beyond de classic powers granted to creditors, which is the power of voting in
the General Creditors Assembly.
Nonetheless,
even though the Brazilian jurisprudence is quiet in what concerns the power of
creditors, it is the Judiciary's roll to implement and control the legality of
(i) creditors decision and (ii) the reorganization
plan itself.
Yet again, the
insolvency law is silent, this time about the limitations of control that must
be necessarily performed by court.
In order to delimitate
a practical concept, that allows judges to exert a proper legality control in
the Reorganization plan, without confusion between the merits of the discussion
around creditors and the effective control of legality of the plan, the 1st
Court of Bankruptcy and Judicial Reorganization of São Paulo has been applying
the tetra phasic criteria, which, in summary, establishes four different stages
of diligence to be taken by the Court in the case, that conduct the complete
analysis of the legality of the Reorganization Plan.
On four
different phases, with distinct characteristics, thus having the potential of
making Court’s dwell on all the relevant aspects that may be object of control,
in an orderly fashion and respecting the limits of the judge's action in the
actual case.
The first
phase compels the Court to exercise control on the clauses of the
Reorganization Plan, where, a priori,
a verification is done regarding the possibility of some of them confronting
legal provisions.
The first
phase is necessary and compulsory, because, even if the creditor's decision
possesses sovereignty, it can never confront the current juridical order,
creating obligations, taxes, fines and other legal figures that are forbidden
by the Brazilian legal system.
A common
example in practical cases is the existence of clauses in the Reorganization
Plan providing that bankruptcy should be granted in case of noncompliance to a
determined obligation, when the due date of such obligation only takes place
two years after the inspection. This cannot occur, due to the fact that the
eventual infringement of obligations by the corporation is solely regulated by
the legislation, Act no. 11.101/2005, whose principles of public order are not
subject to by the parties, even if by majority of votes in the Creditor's
Assembly.[7]
Likewise, the
Judicial Reorganization Plan approved by the General Creditors Assembly may not
establish directives that entail a transgression of the law or criminal
activity, such as, for example, tax evasion or exposure of workers to conditions
similar to slavery.
With the first
phase done, and surviving the first control that aims strictly in legality, the
Court must enter the second phase of the tetra phasic control. The reason for
the existence of this second phase is due to the juridical nature to make
decisions that has been taken by the creditors in the General Creditors
Assembly, which, under the Brazilian legislation, has a
uncontroversial aspect of a juridical act. As a juridical act, it must contain
all the intrinsic and extrinsic criteria, formal and material, that must be
present in a juridical act for it to be reputed as valid, wholly or in
sections.
The material
causes, or those related to motivation, that lead to invalidity of juridical
acts are listed in the civil codex, that possesses a roster of numerus clausus of situations (consensual
vices) that causes invalidity of the deal: (i) error;
(ii) malice; (iii) duress; (iv) state of danger; (v) simulation; (vi) fraud
against creditors and; (vii) mischief.
For that
reason, the second phase is where there is an analysis of the business
conditions during the Judicial Reorganization Plan, where the Court exerts the
control of the reasons that formed the majority that approves, or not, the
Judicial Reorganization Plan.
For this purpose,
the Court must analyze if the creditors were duly informed of the content of
the plan, or if they fell victims of any sort of coercion, induced in error,
mislead, or if they exercised their right to vote without any vice caused by a
state of danger, fraud or simulation.
It is also in
this phase that the judge must verify the occurrence of a simulation between
creditors, or a group of those, with the debtor, with the end of approving the
plan, as well as of some conducts that may be reputed as fraudulent and aim to
guarantee the approval of the Judicial Reorganization Plan, in detriment of
other creditors[8].
In the
Brazilian legal system, the juridical act is analyzed not only by written word
and documentation, by the formal pact, but also must be taken into
consideration numerous aspects beyond the strict formality, like the motivation
behind the negotiation and even the praxis
of the parties in previous negotiations. The clauses of the pacts firmed
between the parties must, still, be analyzed with lumen of the good faith (objective and subjective), likewise taking
into consideration the social function that must be observed in nonpublic
transactions.
This
limitations and parameters used in the exegesis of particular accordance have
the purpose of avoiding that juridical acts of some parties may cause a
negative result to the collectivity, once more demonstrating the peculiar
attention the legislative power has bestowed upon the collective interest vis-a-vis the private one.
Having
overcome the preconditions for the existence and validity of the legal
business, the judge must enter into the third phase of the tetra phasic
control, which consists in verifying the legality of the extension of the
decision taken by the majority of the creditors in the General Creditors
Assembly in regard to beating creditors or dissident ones.
The third step
is to verify, in detail, whether, although there is no illegality in the
General Creditors Assembly's sovereign decision, nor vice in the legal
business, whether of consent or motivation, formal or material, the application
of the decision will inflict, reflexively, an offense to the public policy. In
other words, it is not enough to verify the legality and the hygiene of the
decision taken at the General Creditors Assembly, but it must be verified,
above all, whether the application of this decision will constitute a possible
violation of the public policy norm and, therefore, is acceptable ex officio by the judge.
An example is
when the approval of the plan occurs by most of the creditors, establishing in
one of its clauses that the novation of the obligation applies to both the
principal creditor and the joint obligor or guarantor. Since the credit is a
disposable right, there is no legal impediment for the creditor to agree to
pardon the debt of the principal creditor and the joint obligor and guarantors.
However, it
should be noted that this applies exclusively to creditors who have effectively
approved the plan, with dissenting creditors being protected by Law (article 49,
paragraph 1, of Act no. 11.101/2005), to preserve their rights and privileges
against joint obligors, guarantors and obligors on return.
The fourth and
final phase of the four-phase control occurs with the control of possible abuse
by one or more creditors in the exercise of his voting rights, which must be
used only and exclusively in a strictly manner that is compatible with its own
right.
Once more, the
motivation, i.e., the literal will of the party is tied to the validity of its
vote.
In the
Brazilian Reorganization system, voting power is linked to the value of the
credit in the reorganization process, resulting in situations in which a single
or a group of creditors have a higher voting power, causing loss of the other
creditors, of the Company in reorganization or of collectivity.
In spite of
the sovereignty of the decision taken by the creditors in the General Creditors
Assembly, this decision must be in agreement with the Social Function of the
institute of the Judicial Reorganization. Although the creditor can exercise
his voting rights in accordance with his particular interests, his decision
cannot create an obstacle that is insurmountable or that prevents the
attainment of the guiding principles of the institute, related to the Social
and Public Function of Judicial Reorganization.
A creditor, at
first, can refuse to negotiate with the debtor, demanding full compliance with
the obligation. However, if your vote is decisive for the approval or not of
the Reorganization Plan, the vote, in fact, may lead to the termination of a
viable business activity, with the disappearance of all benefits from it.
In this case,
the creditor does not have the right to oppose his will to the detriment of the
creditors, the company and the collectivity.
In Judicial Reorganization
the risk of occurrence of this category of addiction is accentuated, since one
or some creditors may possess a high degree of dominance in their respective
classes.
Finally, it is
important to note that the four-phase control maintains the creditors'
sovereignty over the merits of the Reorganization plan. This verification does
not comply with the decision of the creditors on the market strategy to be used
to achieve the Reorganization of the company. However, it maintains a strict
control of the legality of the provisions reached in the General Creditors
Assembly, as well as guiding the reorganization procedure to reach the social
and public interests, its basic objectives, before the particular interests of
creditors.
The Business
insolvency proceedings are peculiar and complex insofar as they bring together
diverse interests of hundreds or thousands of people, imposing on the Judge the
need to rule numerous issues simultaneously and that must necessarily be
resolved in economically useful time, failing to prove ineffective at end.
The great
challenge imposed on the Judge is to manage the process in order to decide all
these issues in good time, without prejudice to offer all the interested
parties the right to plead in the records as adversary and the ample defense.
It is in this
context that the democratic process management emerges as an alternative
technique for conducting insolvency proceedings, with a focus on optimizing its
results.
It is possible
to improve procedural management irrespective of whether there are additional
investments or changes in the applicable legislation. It is enough that there
is a change of attitude and mentality of the applicators of the law, especially
of the judges, as responsible for conducting and managing the process.
The definition
of case management from the US health
service is highlighted. According to the definition presented by the Case
Management Society of America (CMSA), case management is a collaborative
process of assessment, planning, facilitation, care coordination, evaluation,
and advocacy for options and services to meet individual and family's
comprehensive health needs through communication and available resources to
promote quality, cost-effective outcomes.[9] In
free translation, it can be affirmed that case management is a collaborative
process of analysis, planning, facilitation, coordination of care, evaluation
and advocacy of options and services to achieve individual and family health
needs through communication and available sources quality promotion and
cost-effective results.
The goal of
the application of case management in
the US health services is to optimize health resources, favoring the
maintenance of health and the satisfaction of the individual, and at the same
time rationalizing the resources that will be spent by health care providers.
The premise is to optimize the cost and benefit of this type of service, with
advantages for all involved in this type of process. The individual will have
better health guidance while health care providers will spend fewer resources
to care for that individual's health.
This idea of case management from the health sector,
which seeks to analyze individually the specific needs of the case in order to
achieve better results with the fewest possible resources can and should be
transported to the management of legal proceedings.
This
experience, moreover, has also been used in the US judicial system, where the
concept of judicial case management has long been known. It is a schedule of
procedures involving a certain matter to be judged. Each stage of the judicial
process is analyzed according to the specific case, and the magistrate must
establish the whole route of action so that all relevant points are taken to
judgment, always with a view to giving a faster and more effective judgment,
and to lower the cost of the process and enhancing the satisfaction of the
jurisdiction with the service of Justice. The magistrate can designate
hearings, called CMC (Case Management Conference), whose main objective is to
determine the steps for the judgment of the matters presented to the Court,
observing the specific needs of the concrete case.[10]
In comparative
law, especially in cases of bankruptcy and judicial reorganization of
companies, there is also Section 105 of the US Bankruptcy Code, which grants
the judge powers to supplement legal provisions by making decisions and
measures that are not expressly provided for in the text of the law. In this
sense, the bankruptcy judge is authorized to determine any action that is
necessary to achieve the objectives of the law, as the case may be.[11]
The bankruptcy
judge may also ex officio or at the
request of the parties’ designate hearings, called status conferences at any
time and as often as necessary to monitor the development of cases and
determine the most rapid, effective and economic conduct of the proceedings to
its final and useful result (subsection d.1).
Under the
terms of the US Bankruptcy Act, a judge must hold state conferences where
necessary to achieve the most cost-effective and expeditious settlement of the
suit, and is authorized to determine at such hearings any measures, provided
they are not conflicting with other legal norms, which have as objective to
guarantee the adequate solution for the concrete case, including the definition
of terms specifically considered for the case in question.
Therefore, it
is the duty of the Judge to lead the insolvency process in the view of its own
peculiarities, adjusting the procedure to the desired objectives and always
taking into account the complexity of each situation put to the judge, in order
to guarantee efficiency, speed and economy in the solution of the process.
Based on all
these comparative law ideas and the experiences observed in other systems, the
Judgment of the 1st Court of Bankruptcy and Judicial Reorganization of São
Paulo initiated the transposition and adaptation of these premises for the
management of bankruptcy and Judicial Reorganization cases. And this experience
has shown excellent results even for the most complex cases, in a way to reduce
costs, giving greater transparency, allowing greater access of the parties and
interested parties, seeking consensual solutions and achieving a greater index
of correct decisions (in the sense of that decisions are made on the basis of a
larger and more faithful set of evidence brought by all interested parties to judicial
knowledge).
The method
that has been applied in the 1st Court of Bankruptcy and Judicial
Reorganization is called democratic process management.
It is a
methodology suitable for conducting insolvency proceedings (Bankruptcy and
Judicial Reorganization), which is clearly collective, but also for other
collective processes, such as public civil actions of various kinds.
Processes of
great complexity, such as bankruptcies and Judicial Reorganization of
companies, require a different management from traditional cases; otherwise
they will not be able to provide adequate responses to the lawsuits brought to
the Judiciary.
Processes that
deal with business issues cannot ignore the reality of the economical view, as
if the legal world existed in isolation and disconnected from other aspects of
modern society. The time of the process cannot be dissociated from the time of
the negotiating reality, especially when looking for bankruptcy and
Reorganization processes, in which the negotiation/economic timing is fundamental
for the success of the jurisdictional activity.[12]
The objective
of the judicial reorganization process is to collect the assets of the company
that went bankrupt (all its assets), evaluate it and sell it, paying as many
creditors as possible, in compliance with the legal priority order. The
efficiency of this type of process is measured by the optimization of the
assets of the bankrupt company in favor of the creditors benefit regarding the
due payments, but also by the adequate allocation of the resources collected,
with the intention to maintain the source of production, even if held by other
agents, thus preserving jobs, taxes collection, the circulation of goods,
products and services.
The
achievement of the best result in Judicial Reorganizations depends, therefore,
on the agility and the decision-making rights regarding the collection and
destination of the assets of the bankrupt company. It is not just a matter of
formally collecting and selling the assets of the company that went bankrupt. It
is a question of defining, in a short period of time, the best allocation of
these assets, in favor of the interest of creditors and also of the public and
social interest. Exactly for that reason, the Bankruptcy Law itself determines
that the disposal of assets must observe an order of priority, preferring the
alienation of the company as a whole block or the isolated productive units
(which preserves the source of wealth - business activity - in the hands of new
owners and, at the same time, being able to generate better resources for the
payment of the creditors) other than the disposal of the assets one by one.[13]
Judicial
decisions, therefore, must be launched in a short period of time, since delays
in cases of this nature may aggravate the social and economic causing harm to
the whole process. In addition, such decisions, in order to be effective, must
take into account the peculiarities of the case in question and the
difficulties inherent in the individual assets considered.
The Judicial
Reorganization of companies also requires extreme legal agility skills, so that
the procedural fundamental acts to the development of the process occur in a
reasonable timeframe, making it possible a real opportunity to the company in
crisis to have an effective economic recovery.
The need for
judicial decisions to be tailor-made for the needs of the company in crisis,
with due regard for the peculiarities of the market and the specific case, is
also applicable to Judicial Reorganization, otherwise it will not be able to
preserve all social and economic benefits arising from the maintenance of a
healthy business activity, namely, the preservation of jobs, the generation of
wealth, the collection of taxes and the circulation of goods, products and
services of public and social interest.
It is
perceived, therefore, that the time and the construction of decisions tailored
to a concrete case are essential elements for the success of these types of
demands.
And the
traditional process management, normally employed by the Judiciary, does not
provide adequate and in a short timeframe needed responses so that the process
of the bankruptcy and Judicial Reorganization may be successful.
In the
traditional method of process management, the manifestations of all interested
parties, the Public Ministry, the administrator and the expert, as a
prerequisite for the issuance of the judicial decision, are made through
decisions and petitions in the records. This implies a delay incompatible with
the necessity of the economic reality, mainly because the judicial service,
besides bureaucratic by nature, is absolutely overwhelmed with work beyond
reasonable. Hence, the progress of the process becomes very slow and its
outcome will often be ineffective. Finally, the period in which the process is
unduly paralyzed because of the judicial bureaucracy significantly interfere
with the effectiveness of the judicial service.
In this sense,
it is not uncommon for a judicial decision to be rendered at an inadequate
time, when the interest and utility have disappeared and also when the most
adequate opportunity, from the economic and negotiating point of view, for the
effective practice of the act determined by the court is no longer available.
And even more: it is also common for a Court decision to fail to consider the
specificities of the case, since many of those who would be in a position to
bring to the Court extremely important elements on the best allocation of
assets (employees and economic partners, for example) do not have the
opportunity to participate in the construction of the decision-making process.
For example,
the decision to collect a good must be made in a reasonable period of time,
under penalty of disappearance or perishing of the property that has to be
collected. If pronounced in distemper, this decision will not generate positive
effects in the reorganization process, either by the disappearance of the asset
or even by its significant devaluation, to the detriment of creditors. As an
example, the decision on the sale or lease of an asset of the company in
bankrupt estate, which must be make in the same line with the preservation of
the value of this asset and with the markets interest. Delay regarding
decision-making may represent the loss of an opportunity and, therefore, the
imposition of prejudice on the interests of creditors.
In Judicial
Reorganization, which discusses the best strategies to overcome the crisis of
the company, any communication noise or delay in the central decision making,
can be decisive for the failure of the process, losing the possibility of
maintaining the activity to the detriment of creditors and society in general.
Thus, a new
management model of this kind of process is proposed which allows the Judge to
be more agile in decision-making: the democratic process management.
Insolvency
proceedings (bankruptcy and judicial reorganization), even in the light of
their obvious complexity, must comply with the constitutional principles of the
reasonable duration of proceedings (Article 5, section LXXVIII, Federal Constitution
of 88)[14]
and efficiency (Article 37 caput of Federal Constitution of 88)[15].
Citizens must
be guaranteed access to a fair legal order, meaning qualified access to the
process; not only access to the Judiciary, but access to the appropriate
judicial solution. That is to say, the citizen has the right to the process as
a useful instrument for the resolution of conflicts and effective realization
of rights.
As already
stated, the question of the duration of the proceedings (time of judicial
decision-making) is fundamental in any type of procedure, but it is of crucial
importance in the case of judicial bankruptcies and recoveries, so that the
time of the proceedings is not dissociated from the time reality or the
economy. Judicial decisions must be delivered in a timely manner, in order to
meet the needs of the process, which in turn are dictated by the interest of
economic agents.
And not only
that.
Economic and
social interests, in general, are also affected by the reorganization process,
since it is not possible to survive with the non-use of goods and services of
economic and social relevance. The social function of property must be
preserved even in relation to the bankrupt estate, preserving the interests of
creditors, but also of society in general.
Therefore,
within the model of democratic management, judicial decisions, especially on
the issues that require greater urgency and compatibility with the time of
economic agents, the decision-making should be taken in public hearings with
the presence of all procedural parties involved and with interests on the
process itself, such as, e.g., the administrator, the expert, the Public
Prosecution Service and other interested parties specifically on the issues to
be decided (notably the employees and business partners).
In this sense,
in view of the need to decide several aspects of the insolvency process
(collection of assets, sale of assets, valuation, leases, among other
frequently occurring issues), the Judge should designate a hearing with a
defined list of all issues to be addressed, discussed and decided. All those
whose opinions are necessary for the formation of the decision-making process
must be summoned to attend the act. At that hearing, all issues will be
discussed and, if possible, decided. Thus, the decision on these issues, which
would take months or years in the traditional model, could be pronounced in a
single day, respecting the opportunity of manifestation of all interested
parties.
The democratic
management of the process also has other advantages: it guarantees the
participation of the parties and shareholders in the decision-making process,
induces a greater commitment on the part of all those who act in the process,
ensures greater transparency in the process, provides greater oversight
process, and also provides the interested parties with the supply of relevant
and useful information about various aspects of the process (for example, what
would be the best allocation of specific assets, among others), contributing to
the judicial decision, which will be tailor-made for the specific case.
The parties
(creditors and debtors) and all other interested parties involved in the course
of the insolvency proceedings have a guaranteed participation in the process of
forming the judicial decision. That is because everyone will be invited to
participate in the democratic management hearing in which the issues previously
defined by the Court will be deliberated and decided and demand a prompt and
effective measure. At the hearing, everyone can bring important elements to the
formation of the judicial decision. In addition, any possible disagreements can
be analyzed immediately, making possible the formation of a consensual
decision, with attendance of all interested parties. This is because all the
interested parties will be present, interacting with the Judge, at the moment
of forming their decision. It is clear, therefore, that the decision will have
more elements of reality and will be closer to what would be correct from the
point of view of the use of the resources/assets involved in the process.
The Judge will
also act as mediator of the interests of all those involved in the process
during the discussions and deliberations to be taken at the democratic
management hearing. Thus acting, it will be possible the partial and/or total
attendance of diverse interests, with the consensus of all those present. This
mediation will lead to decisions that are accepted by all and, so, not subject
to resources. Hence the conclusion of the procedure is accelerated, it will not
be subject to the delay arising from the filing of appeals during the course of
the claim.
Democratic
management induces much greater transparency in the conduct of the process. All
interested parties will be able to witness the actions of all the agents of the
procedure. Creditors and debtors, as well as other interested parties, may
verify the exact performance of all other parties involved in the proceedings,
including the Judge, the Public Prosecution Service, the parties' attorneys,
the Judicial Administrator and Experts.
The Judge, at
the management hearing, will distribute tasks to the process agents in order to
achieve the most appropriate, faster and economical result for solving the
questions put to judgment. All those presents at the hearing will have the
exact knowledge of what the responsibilities undertaken by each agent of the
process will be. Accordingly, the eventual non-fulfillment of the judicially
determined task will have individualized the responsibility of each action. In
this way, it will be unfeasible for the agents of the process to hide behind
the work firm, removing their responsibilities, in the conviction that their
individual failures will never be denuded. In this sense, this form of process
management induces much more commitment from the agents of the process, who
will not wish to see their own incompetence revealed to all. It is important to
emphasize that all the tasks distributed by the Judge in a democratic
management hearing will be collected and conferred at the following hearing,
which is always designated to follow up the stage of development of the process
and to deliberate on the next steps of the process, towards a faster and more
economically final solution.
The democratic
management hearing, allowing the effective participation of all agents of the
process, has the power to decisively interfere in the change of the position of
these agents in relation to the development of the case. As everyone knows the
development of the process on its course, it is possible to see how all the
agents in the process are acting, it is only natural that parties abandon the
traditional resistant stance and become more collaborative with the end result
of the process. The parties involved, notably former employees and economic
partners, cease to feel only part of the problem and become a key player in
building the solution.
The
supervision of the conduct of all agents during the process is also favored by
democratic management. This is because, as already seen, all those involved in
the process will know exactly how all agents should act during the process.
Thus, it will not only be the Judge and the Public Prosecutor to supervise the
conduct of creditors, debtors, the Judicial Administrator and his assistants.
All will act in this inspection, having a fast and easy access to the Judge and
the Public Prosecutor in the audiences of the democratic management.
During the democratic
management hearing, the Judge, after discussing the issues that need to be
decided, will define the course of the process and the distribution of tasks to
be performed by each of the parties involved in the case. Thus, for example, if
there is a need to sell an asset of the bankrupt estate, after discussing the
best technique for doing so, the Judge will order the Judicial Administrator to
perform the evaluation and sale procedures within a certain period. And all
those present at the democratic management hearing will know what these tasks
are and the deadlines for their fulfillment (steps and deadlines accepted by
all). Thus, it is intuitive to suppose that the said tasks will be effectively
fulfilled, to the extent that they are widely scrutinized, in addition to
previously accepted by all.
Again, it is
important to note that democratic management hearings are held to follow up on
all the issues decided and tasks handed out at the previous hearing. As the
case may be, a monthly monitoring of the fulfillment of the defined goals and
decided in the previous hearings is done.
The process
develops itself from audience to audience, moving towards the final solution,
quickly, economically and irreversibly. Greater involvement of all in the
conduct of insolvency proceedings is encouraged, in favor of greater speed,
agility, transparency and efficiency of the judicial service.
As it has
already been stated, let it be repeated, the parties cease to feel only part of
the problem and are seen as part of the solution of the case, which causes a
sensible change of attitude in the conduct of the feat.
Decisions are
built in the Court as a result of the wide-ranging discussion between all those
who have an interest in resolving the case. The specific elements of each
concrete case will naturally arise from the effective participation of the
agents of the process, including the workers. The decision made in a democratic
way will be fairly suited to the needs of the specific case, distributing the
necessary tasks to reach the best practices from the point of view of creditors
and society in general.
And the best:
the application of the model of democratic process management is immediate and
independent of legislative change.
According to
the applicable legislation, the Judge is allowed to designate a hearing for the
collection of information of the parties and other interested parties, whenever
he deems necessary for the prompt and adequate solution of the questions put in
Court. And more, this form of process management best meets the constitutional
principles of efficiency and the reasonable duration of the process.
It improves
the provision of the judicial service without the need for legislative changes
or additional investments in the structure of the Judiciary.
The Judicial
Administrator, in his position as the assistant of the Court, should maintain a
strict compliance with objectives crystallized on Act no. 11.101/2005.
Nonetheless, numbers of other duties are attributed to him due to the
application of other Law sources, and also because of several peculiarities
that originated from practical cases.
Thus, it has
to be recognized that the practice of the Judicial Administrator at the
Judicial Reorganization is flexible and, beyond to comply with the minimum
obligations under Act no. 11,101/2005, there are several obligations attributed
to him and that have to be entirely fulfilled, under the penalty of
noncompliance of his primary function, that it is to act on behalf of the Court
during the proceeding of Judicial Reorganization.
The Judicial
Administrator must be a taintless and a diligent person, worth the trust of the
Court that designated him to this particular function. Notably, the Judicial
Administrator must perform his duty without willful misconduct nor malice,
doing everything it is possible to help the Court in the conduction and
administration of the proceedings of reorganization, always leading throughout
the pressure of the creditors, neither of the companies on judicial
reorganization nor third parties interested on the process.
The practice
of the Judicial Administrator on the Judicial Reorganization must object the
achievement of the fundamental principles of the proceedings, as TZIRULNIK
points out:
“The fundamental
principles that oriented the elaboration of Act no..
11.101/2005 include the preservation of the Company; the separation of the
concepts of Business person and Companies that can be Recovered; the withdrawal
from the market of unrecoverable Companies or Businessperson; the workers
protection; the reduction of costs of credits in Brazil; the efficiency of the
judicial lawsuits; the legal security; active participation of the creditors;
maximization of the assets of the Company on Judicial Organization; the Deburocratization of the Judicial Organization in the cases
of small business companies; and a severe punishment related to Bankruptcy and
Judicial Reorganization Crimes”.[16]
Companies that
opt for the Judicial Reorganization or have the Bankruptcy declared, will be
subjected to the Court’s jurisdictional control, when the Judicial
Administrator will assist the Court, which, in the case of Judicial
Reorganization, must act truly as a longa
manus of the Judge, personifying a diligent
inspector on the fulfilling of the reorganization plan and an auditor who
analyses the data presented by the creditors and the companies which are in the
process of Judicial Reorganization.
That means,
the Judicial Administrator has control over what it is offered by the parties
involved on the procedural relationship, checking its validity, veracity,
constitution and reflexes, before taking into the knowledge of the Court and of
the interested parties of the proceedings.
Act no.
11.101/2005, in its article 22, subsections I and II, describes in a sui
generis way the practice of the Judicial Administrator, in verbis:
“Art. 22. To the Judicial Administrator compete,
under the inspection of the Judge and the Committee, besides other duties
imposed by this Law:
I – in the Judicial Reorganization and in the
Bankruptcy:
send correspondence to the creditors included on
the list referred which deals the subsection III of the caput of the article
51, subsection III of the caput of the article 99 or in the subsection II of the
caput of the article 105 of this Law, communicating the date of the request
Judicial Reorganization or Decree of Bankruptcy, its nature, its amount and its
classification given to the credit;
give, with promptness, all information requested
by the interested creditors;
give statements of the debtor’s book, that will be
given authentic of office, in order to serve as fundament to the credit’s
habilitation or its impugnation;
demand of the creditors, of the debtor or its
administrators any information;
elaborate the list of the creditors, which deals
the §2 of the article 7 of this Law;
consolidate the List of General Creditors under
the terms of the article 18 of this Law;
request to the Judge the convocation of the
General Creditors Assembly on the cases foreseen by this Law or when understand
is necessary its hearing for a decision making;
hire, upon judicial authorization, professionals
or specialized firms for, when necessary, assist him performing his functions;
manifest in the cases foreseen in this Law;
II) in the Judicial Reorganization:
inspect the activities of the debtor and the
compliance with the PLAN of Judicial Reorganization;
request to be declared Bankruptcy in the case of
noncompliance of the obligation taken on the Judicial Reorganization Plan;
present to the Judge, to be placed on the
case-file, a monthly report of the debtor’s activities;
present the report regarding the execution of the
reorganization plan, in accordance with subsection III of the caput of the
article 63 of the Law;”
Even though it
may appear negligible at a first glance, there is an enormity of activities,
attitudes and diligences that have to be effectively carried out by the
Judicial Administrator and its staff to achieve full compliance with the
provisions under subsection I and II of the article 22
of Act no. 11.101/2005.
Additionally,
in the cases that the Judge or the Court decide for the removal of the CEO from
the Company that is going through the process of Judicial Reorganization, it
will be the Judicial Administrator that has to fulfil the place of the CEO
while there is no appointment for a judicial manager and also until the General
Creditors Assembly’s meeting.
From the
beginning, due to the application of article 33 of the Judicial Reorganization
and Bankruptcy Law, the Judicial Administrator will be summoned for, in 48
hours (forty-eight hours), sign the Term of Commitment, binding himself to a
well and faithful performance in such position and shoulder the resultant
responsibilities inherent to the post.
Once the Term
of Commitment has been signed, it is incumbent upon the Judicial Administrator,
in order to comply with the principle of transparency, to act with due
diligence[17],
which, pursuant to article 153 of Act no. 6.404/1976, means:
“Art. 153. The manager of the company must employ,
in the exercise of his functions, the care and the diligence that every active
and trustworthy person usually employs in the administration of his own
affairs.”
Such
application is analogous, once Act no. 11.101/2005 does not mention anything in
this regard. By doing so the forensic practice itself led to this
interpretation of the article 153 of the Law N. 6.404/1976 as a guidance to the
practice of the Judicial Administrator.
Therefore, it
is reasonable to require from the Judicial Administrator to act with the same
level of ordinary diligence as from a “active and trustworthy person” usually
would employ in “his own affairs”.
That does not
mean, a priori, that the Judicial
Administrator should act in such an incisive manner to a point that exceeds the
limit of the functional competencies of other members of the proceedings.
However, its performance must be to fulfill the functional attributions,
keeping the Court and the creditors constantly informed of the actual
conditions and circumstances observed in the course of the procedure.
From the
Judicial Administrator it is not demanded the same level of diligence of as an
ordinary person, but it is expected an active, willing, capable, and prepared
person to take a proactive stance, performing the most various and necessary
diligences without having to be provoked to act so.
Likewise, it
is required from the Judicial Administrator to be trustworthy, not only on the
conduction of the Judicial Administration, but in all the aspects of his social
life, being recognized by the society as an honest person and above any
suspicion.
CEREZETTI
defends that the Judicial Administrator exercises a fiduciary[18]
duty in favor of all the parties involved in the procedure, in an similar interpretation of article 68, § 1º, “a”, of Act
no. 6.404/1976, what would imply, once more, the assumption of the diction of
the article 153, also from Act no. 6.404/197 defined as the “duty of diligence”
from the Judicial Administrator.
The
jurisprudence that is being built on the limitation of the practice of the
Judicial Administrator, seeks to make it more flexible its attributions when
the fulfillment of its mister depends
on it.
A good example
is the relativism of the clause of confidentiality of the contracts signed by
the Companies[19]
on ongoing proceedings of reorganization, notwithstanding it exists a divergent
understanding, spearheaded by MANDEL, that defends that the Judicial
Administrator does not have powers to supervise the negotiations between the
Company subject to the Reorganization and the shareholders, suppliers, nor with
any other agent[20].
At this point,
a priori, it is understandable that
the Judicial Administrator should possess powers to inspect the negotiations
between the Company subject to the Reorganization when these negotiations are
related to the conduction of the Judicial Reorganization procedure, because it
is the duty of the Judicial Administrator to verify the occurrence of eventual
illegalities or frauds and to keep the Court informed regarding all aspects,
formal and material, that may influence directly on the process of the judicial
reorganization, on the viability of the Reorganization Plan or General
Creditors Assembly.
The already
mentioned article 153 of Act no. 6.404/1976 establishes a similar bonus pater familias,
borrowed from the Roman Law[21],
although legal scholars, such as Luiz Antonio de SAMPAIO CAMPOS, understand
that the diction of the referred article finds more resemblance with the
“business man” as enshrined in the North-American Law, which held very little
similarity with the Brazilian system.[22]
Gabriel José de ORLEANS E BRAGANÇA, argues that:
“(...) the function of a Judicial Administrator is
on the same line as an Audit Committee of a firm, with the difference that,
instead of passing the information and results of this audition to the partners
of this firm or to the market, its attribution will be related to the
creditors, the interested parties and the Judge from the judicial procedure.
For that reason, it is understandable the of the analogy mentioned since a
member of the Audit Committee has the same duties as the partners of the firm.
(…)”[23]
CEREZETTI,
along the same line, defends that the Judicial Administrator possess the
fiduciary duties “for the good of all participants (zum
wohl aller beteiligten), serving of the preservation of the company
and the interests of creditors."[24]
Another of the
primary duties of the Judicial Administrator is interconnected to the duty of
supervision, which, under the historical scope, consecrates the tradition of
Brazilian legislation in this regard.
Hence, it is
incumbent upon the Judicial Administrator to exercise diligently the duty of
information, a sine qua non premise
for the regular and transparent development of the process for all of those
involved.[25]
In the words
of ORLEANS E BRAGANÇA:
“Since the former commissioner in the preventive concordata to the Judicial Administrator in the judicial
reorganization, the function of this auxiliary of the Court has always been
identified by the supervision practice”.[26]
It is not
incumbent upon the Judicial Administrator supervise only the formal aspects of a
Judicial Reorganization process. He must supervise, especially, activities of
the Company in the process of Judicial Reorganization.
The scholium
of the legal scholar MENDES deserves to be reiterated by its preciosity:
“Not only as an auditor of the jurisdictional
procedure, the Judicial Administrator began to assume the function of
accompanying 'pari passu'
the execution of the judicial reorganization plan in crisis, once approved by
the Judiciary and creditors, as well as carry out the acts of management
invested of an economic and financial nature and administration in favor of the
alleged speed of the bankruptcy process."[27]
It is also
incumbent upon the Judicial Administrator the verification of the possibility
of the misuse of purpose or fraud in
the activities of the Companies on the process of Reorganization, being liable
for reporting the fact to the competent Court.[28]
Although the
Judicial Administrator holds a continuing duty to supervise the activities of
the Companies on ongoing process of reorganization, he has no managerial power
whatsoever in its activities. Being so, it is necessary to have a proactive
attitude of the Judicial Administrator and his team, using the information
provided, formally requesting the Companies on ongoing processes of reorganization
to provide data and documents, or reporting the refusal to provide these to the
Court, requesting the measures that are reasonable in the understanding of the
Judge of the cause.
In this sense,
FAZZIO JÚNIOR has a unique scholium:
“As a general
rule, the Judicial Administrator has no managerial
powers. This does not mean, however, that their participation is merely
passive. In fact, if there is any event that can be prejudicial to the
fulfillment of the reorganization, it should be communicate it to the judicial
body for the appropriate measures. It is an audit assistant of the Court, with
the same responsibility to that of the Bankrupt Administrator, but with
different activity. He may be civilly and criminally liable to the perpetuation
of the commitment of unlawful acts, whether to the detriment of creditors or
against the debtor going through reorganization.”[29]
At first,
although the Judicial Administrator does not have managerial powers,
negotiating or managing, the Law on Judicial Reorganization and Bankruptcies
did not impose any limit on the duty of supervision that must be exercised by
it, once again leaving the path of conceptualization and delimitation of its
powers under the responsibility of the Jurisprudence and the Doctrine.
In the lessons
of PURIFICATION[30]
"(...) all the activities performed
by the debtor that are related to the operations of the company and the
judicial reorganization plan" are part of the audit scope of the
Judicial Administrator.
In practice,
this positioning shows to be adequate, since there is no reason to the
appointment of a Judicial Administrator who acts as an Assistant to the Judge,
if he does not have extensive powers to supervise the activities of the debtor.
The Judicial
Administrator does not need to request judicial authorization to perform his
audit duty, being able to attend on the facilities of the Company in
Reorganization at any time he deems necessary, having free access to his
headquarters, branches, books, documents and all data relevant to the Judicial
Reorganization.[31]
In practice,
the Judicial Administration finds, in some cases, resistance on the part of the
Companies in Reorganization and its managers, on the transfer of information
and documents, either for mere ignorance of the powers of the Judicial
Administrator or for the illegal intention of hiding fraudulent and illegal
acts.
In those
cases, there must be a necessary bond of trust between the Judicial
Administrator and the Court, because it must bring such circumstances
immediately to the attention of the Judge, who may determine the measures he
deems necessary for the fulfillment of the audit duty, including the
possibility of dismissing partners and managers of the company in
reorganization.
Such
communications must be made either verbally to the Court, or through
manifestations of the Judicial Administrator in the course of the proceedings,
in which the latter requests, formally and through a specific request to the
Court, access to the documents and data of the Companies in Reorganization.
The proactive
attitude of the Judicial Administrator and his staff is of primordial value,
since in the administration of the reorganization procedure, the latter should
not wait for the judicial branch to provoke the diligence established in Act
no. 11.101/2005, within the legal term.
Once more,
ORLEANS E BRAGRANÇA brings a precious scholium:
“In Brazil, in spite of the fact that there is no
administration of the Company in reorganization, several acts inherent to the
Judicial Administrator concern the administration of the judicial
reorganization process, which depends on its good diligence for greater success
among all those involved. As an example, it is the Judicial Administrator who
is responsible for chairing the General Creditors Assembly, and it is up to him
to investigate whether the creditor votes comply with legal formalities and
impediments in the exercise of the vote (article 43, Law on Judicial
Reorganization and Bankruptcies)”[32].
Therefore, the
Judicial Administrator acts as an auditor not only of the Company in
reorganization, but also of the actual conduct of all aspects and procedural
acts, taken by the debtor, the creditors and interested parties, and any
eventual abuse of rights, as soon as it is detected, must be taken to the
knowledge of the Court accompanied by a request for action.
Naturally, if
the Judicial Administrator is faced with an evident nullity in one of the
proceedings during the course of the Judicial Reorganization, or if he finds
that he has committed an improper procedural act, afterwards, or is enraged by
motivation or consent, he shall immediately report such act to the Court,
taking all measures necessary to normalize the established illegality.
It is also
incumbent upon the Judicial Administrator to perform the organization of the
creditors, listing them within the categories established by the Law on
Judicial Reorganization and Bankruptcies as well as analyzing the hygiene,
amount and content of their credits, which results, from the analysis of the
Judicial Administrator ( article 7, paragraph 2, of Act no. 11.101/2005), the
definition of the amount of the credits to prepare the notice and for the
purposes of voting to be held at the General Creditors Assembly.
Even in the
credit challenge, when the creditor disagrees with the amount and
classification of his credit, the Judicial Administrator must give his opinion
in the case, serving as an auxiliary to the Court in the decision on the
challenge.
Also, at this
stage, when analyzing the credits, their habilitations and claims, the Judicial
Administrator must act diligently and, in
dubio, request information and documents from the
Company in reorganization, creditors and interested parties, within the power
of action granted to him by article. 22, "d", of the Law on Judicial
Reorganization and Bankruptcies.
It is worth
mentioning that every bankruptcy is provoked, either at the request of a
creditor, through a request for self-bankruptcy or through the request of the
Judicial Administrator in the course of Judicial Reorganization. This
assignment consists of another duty of the Judicial Administrator, as a result
of article 22, II, b, of Act no. 11.101/2005, and does not depend on the call
of the General Creditors Assembly[33].
The request must be motivated by noncompliance with the obligation assumed in
the Reorganization Plan. Therefore, in this case, the Judicial Administrator
acts as true prosecutor of compliance with the Reorganization Plan.
In order to
accurately define the minimum functions of the Judicial Administrator in
Judicial Reorganization, it is necessary an exhaustive analysis of the contents
of article 22 of Act no. 11.101/2005.
The provisions
contained in subsection I., of referred article, are common to both the
Judicial Reorganization and to the Bankruptcy.
Subsection
(a), of section I, has the following wording:
“a - send correspondence to the creditors included
on the list referred which
deals the subsection III of the caput of the article 51, subsection III of the
caput of the article 99 or in the subsection II of the caput of the article 105
of this Law, communicating the date of the request Judicial Reorganization or Decree of Bankruptcy, its nature, its amount and its classification
given to the credit;”
Such provision
is an interpretation of the most simple and meaningful, the Judicial
Administrator, must send to all related creditors, after have been analyzed
their credit, communicating the date of the request for judicial reorganization
or the date of the bankruptcy, the nature of the credits, the amount considered
correct by the analysis of the Judicial Administrator, as also the
classification of the credit (“extraconcursal”,
unsecured, Collateralized Debt Obligations, privileged labor and privileged
fiscal).
The provision
contained in paragraph b, of the same subsection, is redacted as follows:
“b) give, with promptness, all information
requested by the interested creditors;”
Such provision
constitutes a true obligation of the Judicial Administrator beyond those
arising from the mere exegesis of the letter of the law.
That is
because, by reason of this provision, the Judicial Administrator must keep
publicity of all the acts done during the judicial reorganization, preferably
through a webpage duly published in
the Judicial Reorganization case-file, as well as the letter sent to the
creditors due to the application of paragraph a, preferably including address
for physical assistance, telephones contact and the time the Administrator or
his staff will be available to meet the interested creditors.
Paragraph c of
the same subsection is worded as follows:
“c) give
statements of the debtor’s book, that will be given authentic of office, in
order to serve as fundament to the credit’s habilitation or its impugnation;”
Such provision
is an obligation on the Judicial Administrator to collect, analyze and provide
copies to the creditors of the reorganization books (supporting documents),
even though the creditors themselves do not have such documents.
In these
cases, the Judicial Administrator is also responsible for certifying the
non-existence of a possible book of the debtor, requesting the necessary
measures, either to recover such documents or to hold the guilty parties
responsible for their disappearance or non-existence.
The provision
of paragraph d, still of the same subsection, grants a further power to the
Judicial Administrator better than it confers an obligation:
“d) demand of the creditors, of the debtor or its
administrators any information;”
The Judicial
Administrator, as reported in this paper, has innumerable duties of information,
transparency, publicity during the process management, in addition to
obligations of other natures, which can only be fulfilled because to the Judicial Administrator is granted
the power to require from creditors, debtors and their administrators all
information that may be necessary in the course of the Judicial Reorganization.
In cases of recalcitrance of
those in the non-supply of the information, it is incumbent upon the Judicial
Administrator to request the Judicial Recovery Court to take whatever steps are
necessary to resolve the quaestio.
The provision of paragraph e. establishes an objective duty to the
Judicial Administrator:
“e) elaborate the list of the creditors, which
deals the §2 of the article 7 of "this Law;”
Combining, the section 2 of article 7, has the following redaction:
“Art. 7. The verification of the credits
will be carried out by the judicial administrator, based on the accounting
books and commercial and tax documents of the debtor and in the documents
presented to him by the creditors, and may rely on the assistance of
professionals or specialized companies.
Paragraph 2. The judicial administrator, based on
the information and documents collected in the form of the caput and paragraph
1 of this article, shall publish a notice containing the list of creditors
within 45 (forty-five) days, counting from the end of the term of Paragraph 1
of this article, and shall indicate the place, time and the common term in
which the persons indicated in article 8 of this Law shall have access to the
documents that substantiated the elaboration of this list of general creditors.”
Accordingly,
beyond performing the list of general creditors referred to in article 7,
paragraph 2, the Judicial Administrator shall give publicity to documents that
based his decision, for a full verification by the creditors, i.e., the
decision of the Judicial Administrator to include or exclude, to reduce or to
increase, as well as to classify a credit in the Judicial Reorganization, must
take place in an absolutely justified manner and in accordance with documents
and technical reports, which justify his decision.
The norm inserted in subsection
f. establishes one of the most important obligations in the Judicial
Administration of a Judicial Reorganization or Bankruptcy, which is the
accomplishment of the consolidation of the List of General Creditors:
“f) consolidate the List of General Creditors
under the terms of the article 18 of this Law;”
The list of general creditors must contain the table of all creditors
from the Company in Reorganization, the amount of their credits and the
category to which they belong, pursuant to article 18, of Act no. 11.101/2005,
which is redacted as follows:
“Art. 18. The judicial
administrator shall be responsible for the consolidation of the list of general
creditors, to be approved by the judge, based on the table of creditors
referred to in art. 7, paragraph 2, of this Law and in the decisions rendered
in the appeals offered.
Solo paragraph. The general list, signed by the judge and the judicial
administrator, shall mention the importance and the classification of each
credit at the date of the request for judicial reorganization or decree of
bankruptcy, shall be added to the file and published in the official body
within 5 (five) days, counted from the date of the ruling that judged the
impugnation.”
The creditors must be separated according to the classes established by
Law, namely: (Class I) Labor Creditors; (Class II) Creditors with Collateralized Debt Obligations; (Class
III) Unsecured creditors; (Class IV) Micro or Small Business Creditors.
After presenting the table referred to in article 7, paragraph 2, of
already mentioned Law, the credit’s impugnation will be presented by those
creditors who disagree with the amount and classification of their credits,
as well as those who disagree with the classification and credit amount related
to another creditor.
Only after these challenges are ruled the Judicial Administrator can
consolidate the table called the List of General Creditors, which shall be
approved by the Court and duly published in official bodies and in public
notices.
The provision referred to in the subsection g., section I, article 22,
of Law N. 11.101/2005 is worded as follows:
“g) request to the Judge the call of the General
Creditors Assembly on the cases provided for by this Law or when it deems
necessary its hearing for a decision making;”
The Judicial Administrator must be the organizer, the one who gives
impulse and makes happen the General Creditors Assembly, which has been already
stated in this academic article, has sovereign power over the decision-making
in matters pertaining to the approval or not of the Reorganization Plan.
However, when the situation in the case-file indicates the necessity for
a decision regarding the approval or disapproval of the reorganization plan, or
part of it, and, still, in cases where an ancillary obligation of the
reorganization plan already approved is not being fulfilled, the Judicial
Administrator must summon, as often as necessary, the General Creditors
Assembly, so it can be decided such matters.
Such provision is more than necessary, since the decision-making, with
such a sovereign nature, is the responsibility of the General Creditors
Assembly and, in the event of non-compliance with this provision, numerous acts
may be considered null and void, causing damages to Company in reorganization
and Creditors.
The provision in subsection h., concerns the possibility of hiring
professionals and specialized companies:
“h) hire, upon judicial authorization,
professionals or specialized firms for, when necessary, assist him performing
his functions;”
The subsection h. deals with the authorization given to the Judicial
Administrator to assemble a team to assist him in the exercise of his function.
However, what happens in practice is that Judges have determined the
appointment of companies specialized in Judicial Administration, which already
have a multidisciplinary team formed only with the purpose to supervise the
Judicial Reorganization. This point will be more closely addressed in a
separate topic.
The provision in subsection (i) is one of the
simplest to comprehend:
“i) manifest in the
cases provided for in this Law;”
Whenever the Judicial Administrator renders his legal opinion, whether
by decision of the Court or by virtue of the application of the Law, he shall
do so, with extreme attention, otherwise he may not be fulfilling the objective
of good perform its function of assisting judgment as required.
The section II deals with issues solely related to Judicial
Reorganization.
Subsection a. contains an extremely important obligation:
“a)
inspect the activities of the debtor and the compliance with the plan of
Judicial Reorganization;”
The duty to supervise the activity of the debtor and to comply with the
judicial reorganization plan have their own topics in this paper, which is why
they will not be reanalyzed.
The provisions of subsection b.
establish the obligation of the Judicial Administrator, in compliance with the
provisions of the previous subsection, when observing the noncompliance with
the judicial reorganization plan, to request the Judicial Reorganization to be
converted in Bankruptcy:
“b) request to be declared Bankruptcy in case of
noncompliance of the obligations undertaken on the Judicial Reorganization
Plan;”
However, such rule does not have a simple applicability as it may
suggest the direct exegesis of the wording of the Law.
In numerous cases, as already is being accepted by the jurisprudence and
doctrine, in case of noncompliance with minor obligations and with the
assistance of the judicial reorganization plan, a new General Creditors
Assembly may be convened to decide whether the judicial reorganization plan
should be maintained, even though being aware of its partial noncompliance.
Therefore, it is up to the Judicial Administrator to communicate immediately to
the Judge of the case the noncompliance with the Plan, so that it decides on
the conversion on bankruptcy or determines a new General Creditors Assembly.
The provisions of subsection c.
is one topic of this paper, but it constitutes the
monthly duty of the Judicial Administrator to submit a monthly report of the
debtor's activities:
“c) present to the Judge, to be placed on the
case-file, a monthly report of the debtor’s activities;”
The provision contained in subsection d, of section II, of article 22, of Act no. 11.101/2005, refers to
the last of the proceedings of the Judicial Administrator of Judicial
Reorganization:
“d) present the report
regarding the execution of the reorganization plan, in accordance with section
III of the caput of the article 63 of the Law;”
This final
report also has its own topic in this paper, which is why it will not be
repeated also at this point.
As already stated
in this article, the crisis of a company, or a corporation or even a group of
companies, may be caused by a multitude of factors.
It is
important to emphasize that it is incumbent upon the Judicial Administrator and
its team to supervise compliance with the laws (both formal and material), but
it is also their duty to ensure the success of the Reorganization Plan within
the legality.
That includes
the ability to diagnose the reasons that led the activity to decline, whose
first step is “(...) to understand the
reasons for the decline, which may be in noncompetitive products, inappropriate
distribution channels, wrong business strategies”[34].
Because of
that, it is essential that the Judicial Administrator is advised by a full
multidisciplinary team prepared and capable of analyzing all aspects of the
business activity in reorganization, whether financial, operational or legal
aspects. Consequently, his work inevitably focuses on his area of expertise,
leaving the others without the due attention, simply because of lack of
practical knowledge.
However, in
view of the practical evolution of the Judicial Administration and the
specialization of real team of professionals, it is clear that working in
complex cases requires the effort of several professionals working together,
providing the Judge and creditors with financial, operational and necessary
legal assistance, but also providing the fundamental legal support to the
Court, within the legal norms.
It should be
noted that the Judicial Reorganization tend to be filed out of time in order to
resolve the financial crisis that plagues the company, so “it is very difficult for a late turnaround process to be conducted
off the rails of insolvency proceedings due to the strong elements of
operational and financial deterioration that the firm presents at this critical
stage.”[35]
Strong in this
regard, the Judicial Administration team is the instrument for conducting the
relevant data of the Reorganization Company to the Judge and to the
collectivity of creditors, as foreseen in article 22, section II, subsection
c., of the Law on Judicial Reorganization and Bankruptcies, which establishes
the duty of the Judicial Administrator to carry out the Monthly Report on the
activities of the Company in Reorganization, which will be developed within the
following topic.
Armed with the
information provided by company in reorganization and the information collected
during inspections, visits and diligences, the Judicial Administration shall
analyze such data and prepare the monthly report that indicates, in an
analytical and easy-to-understand manner, the financial information of the
debtor company.
At this point,
the Monthly Activity Report serves as a true measure of the success of the
company's reorganization in the course of the process.
It is also
incumbent upon the Judicial Administrator's staff to conduct a review of the
data collected by the Companies in reorganization, mainly, to carry out the
work of verifying if frauds, illegalities or manipulated information passed on by
the company in reorganization have not occurred.
It is also the
assignment of the Judicial Administration team to analyze the credits. For
this, it is necessary to work with professionals from the most varied areas,
according to the business performance of the Company in reorganization. Usually
administrators, economists and accountants do the organization, tabulate and
analysis of the contracts and invoices that relate to the credits, being able
to verify with exactitude the correct amount of each credit. After this
analysis by a qualified financial professional, it is necessary the
verification by a lawyer to ensure that the contract that resulted in the
credit did not occur in an illegal or fraudulent way.
Lawyers are
also fundamental in the legal support to the Court, collaborating with reports
of the most varied natures. Usually, the Judicial Administrator is required to
express itself regarding claims from the creditors and the Company in
reorganization in the course of the demand. In order to collaborate with the
Court, the Judicial Administrator must give his opinion so that he indicates
the majority position of the doctrine and the jurisprudence on each subject,
indicating what is most appropriate for the case under analysis.
Therefore, the
Judicial Administrator and his or her multidisciplinary team are responsible
for analytically exposing the relevant data of the business in question to the
Court and to the creditors.
It is the
Judicial Administrator who brings to the knowledge of the Judge the data
presented by the Company in Reorganization, making it the first filter in the
detection of compliance or not, with the Reorganization Plan and also in the
identification and analytical detail of the reasons for which the decline
continues to last.
To this
extent, this analysis must be carried out observing all the financial and
economic information necessary to measure the performance of the reorganization
plan and must be brought to the process in an analytical way, which will allow
the Judge and the creditors to understand, even without being financial
experts, the actual conditions of the companies in reorganization.
For this
purpose, the Judicial Administrator may rely on numerous technical files and
reports that assist in the reorganization and restructuring of procedural
activities.
Mainly, the
information collected by the Judicial Administrator must be organized within a
management information system, exactly in the way that these data must be
presented in the best parameters of a Business Administration.
In the words
of OLIVEIRA:
“An Information system is
the process of transforming data into information. And, when this process is
aimed at the generation of information that is necessary and used in the
decision-making process of the company, it is known as the system of managerial
information”
(OLIVEIRA, 2007, p. 25)[36].
When the
Judicial Administrator provides to the Judge and to the creditors complete and
accurate information, it permits everyone to have a better representation of
the company's reality, allowing better decision-making, either in the course of
procedural proceedings, or in the voting by creditors in the General Creditors
Assembly.
That is the
only way that the Judicial Administrator can be able to dispose this information
fully and comprehensively, in a way to translate it in an understandable way to
the Court and to the creditors.
Nonetheless, a
company in reorganization can have many branches of activity, sectors, units
and even work groups.
In this sense,
the Judicial Administrator must have access to the information of each of the
activities (branches) of the company, in particular software, data and people[37].
For large
companies or economic groups, there may be also a need for the intervention of information system managers, who will
have to unify the information coming from several sectors, units or areas of
operation of the reorganization Company. It will improve the overall efficiency
of the integrated information system,
which enables the right information to be provided at the right time to the
right recipient.[38]
What happens
in many situations is that the economic and financial crisis mainly arises from
the lack of structural, financial and administrative organization of Companies
in reorganization (see the topic regarding Previous Examination).
The perfect
picture is one in which the Company in reorganization grants the Judicial
Administrator the information obtained through the two classic ways of
obtaining business information: internal and external sources, passing on true
and complete information about all their branches of activity.
For specific
cases, the Judicial Administrator can rely on the help of professionals from
different areas of knowledge, so that he can understand the data of Company in
reorganization, or even to identify the technical cause of the activity that
has been generating the economic-financial crisis.
Facing these
facts, a Judicial Administration team should be formed by lawyers, accountants,
auditors, economists, engineers, mediators, evaluators and all other
professionals who are needed to perform well in specific cases.
Beyond that,
the Judicial Administrator must exercise extreme caution in the selection of
his or her staff. First, he is able to offer to the Court and to the creditors
information provided by those experts, which contain paradigmatic and precise
content, and is not a cause of doubt in the Court or creditors, as well does
not cause damage to the judicial reorganization process, in order to offer to
the Court a work carried out by suitable professionals, who are not willing to
submit to pressures, misleading and even corruption, which would undermine the
development of the Reorganization Plan or favor one of the creditors to the
detriment of the others.
The Monthly
Activity Report referred to in the article 22, section II, subsection c., of
the Law on Judicial Reorganization and Bankruptcies, must contain all the
necessary data so that the Judge, creditors and interested parties can know, in
an analytical way, the activities of the debtor, as already stated.
Although the
duty to present the monthly activity complete report is provided for in Act no.
11.101/2005, this is one of the least observed duties in the course of Judicial
Reorganization, impairing the achievement of the objectives of the law.
Because this
is one of the duties of the Judicial Administrator, his noncompliance, "within
the required periodicity in relation to the necessary content" must,
necessarily, concern his dismissal.[39]
CEZERETTI
advocate that this action of the Judicial Administrator in the preparation of
the Monthly Activity Report does not only benefit creditors, but undoubtedly
contributes to the smooth progress of judicial reorganization:
“As regards the other
body that performs supervisory functions throughout judicial reorganization, it
should be pointed out, as it has been done above, that the performance of the
judicial administrator not only benefits the creditors, but the good progress
of the process and all others interested in the success of the debtor. The
information he has collected and propagated through the reports he must present
to the court, allows a wide range of agents to be aware of the conditions of
the debtor (...)”.[40]
Once more, the
legal provision is laconic and does not define precisely the extent of the
legal command. However, the practice of the Judicial Administration in cases of
Judicial Reorganization has demonstrated the need for the Monthly Activity
Reports to be a true thermometer of all market and administrative aspects of
Companies in Reorganization that should be brought to the knowledge of the
Judge and creditors.
Luis Augusto
GUERRA, accompanied by a good part of the doctrine, with the purpose of
suppressing this gap, presents the content that must appear in the Monthly
Activity Report through a specific role[41].
By joining and complementing GUERRA’s lesson, the Monthly Activity Report must
contain: (i) all businesses conducted in the analyzed
period, if necessary, separated and agglomerated into branches of activity of
the Company in Reorganization; (ii) the complete description of the sale of the
permanent and current assets; (iii) the gross revenues obtained in the analyzed
period; (iv) the cash flow for the period analyzed; (v) the volume of working
capital within the analyzed period; (vi) the report of the results obtained
with the reduction of operational costs; and (vii) in an analytically way, the
net sales, profits, dividends, and the similar, as well as any losses found
during the period analyzed.
In addition to
the essential and necessary content, as a result of the duty of supervision and
vigilance held by the Judicial Administrator, he must fully express in the
Monthly Activity Report the detection of any inconsistency, irregularity,
evidence of fraud, simulation or collusion with creditors, since any of these
situations may compromise the financial recovery to the detriment of creditors,
or may be linked to the formal, legal and content validity of the
Reorganization Plan and its procedural process, in the interests of the
Reorganization Court, creditors or interested third parties.[42]
The list of
items that should be included in the preparation of the Monthly Activity Report
confirms that the Judicial Administrator must use a multidisciplinary team in
its preparation (see previous topic).
The first of
the requirements for the preparation of a Monthly Activity Report is related to
the need for a conference held in the documentation presented by Company in
Reorganization, in order to verify its veracity and, also, if the documentation
was presented in its entirety.
In this sense,
the most recent Doctrine lectures that:
“(...) it does not make
sense that the judicial administrator, in the exercise of his supervisory
functions, should limit himself to collecting the data provided to him by the
company and passing them on to the file-case to the knowledge of the judge and
the creditors. The Judicial Administrator must elaborate his report, checking
the data provided by the debtor company. The Judicial Administrator must
perform a similar function as an auditor, once he must confirm the basis of the
data informed by the debtor, comparing the data with the reality of the
company's performance.”[43]
The Judicial
Administrator shall then carry out an analysis regarding the aspects of the
validity, formal and material, that must be present in the documentation
presented.
This stage
depends on the careful verification of the information and documents provided
by the Company in reorganization, to verify its truthfulness.
After
analyzing the validity of the documentation presented, as well as the inquiry
on aspects that can demonstrate the existence of any type of fraud, collusion,
deviation, or illegal act perpetrated by the administrators of the Company in
reorganization and/or creditors, the Judicial Administrator must carry out
analysis and request any documents or procedures that are missing, i.e., those
that should have been submitted by Company in reorganization and were not
presented during the month related to the Monthly Activity Report.
In addition,
the Monthly Activity Report should contain specific information related to each
type of activity of the company in reorganization. This means that the Monthly
Activity Report should also examine the most relevant aspects for the type of
commercial activity or services rendered.
Another
provision that must be taken by the Judicial Administrator in the course of a
Judicial Reorganization is interconnected with mediation between Creditors and
the Companies in reorganization.
The first
difficulty found in this function is related to the lack of knowledge, in many
cases, of creditors, regarding the Judicial Reorganization process. Initially,
it is incumbent upon the Judicial Administrator to attend all the interested
creditors, explaining to them the judicial measures that will be taken, within
the Law, with the purpose of recovering the company.
The Judicial
Administrator will also provide information on the progress and management of
the company, passing on these issues to creditors in a succinct and
understandable way. When this job is carried out in a satisfactory manner, a
multitude of unnecessary collection proceedings, executions (and the numerous
incidents and impugnation brought about therefrom), are avoided, importing in
benefit to creditors, Company in reorganization and even to the collectivity,
because such a condition assists the Judiciary, giving greater effectiveness
and speed to the adjudication of protection.
This occurs
mainly when the Judicial Administrator is diligent in analyzing the differences
presented to the credits of the Judicial Reorganization and performs the
documentary and legal verification of each credit, relating them within the
strictest legality.
The
verification of credits and administrative judgment of divergences is a key
point of the Reorganization process, once, if it is not done with due care and
discretion, it may result in errors in the amount of the credits, nullity of
the assembly or large amount of legal challenges. The Judicial Administrator,
within his role of assistant of the Court, has the obligation to avoid judicial
challenges, making a careful administrative analysis of the divergences.
In addition,
fewer complaints, appeals and incidents will necessarily result in fewer
expenses for the company in reorganization, cooperating with the proper
progress of the process. It will also prevent the Judiciary from being
overloaded with unnecessary proceedings.
A Judicial
Reorganization, by itself, is a process with a great degree of litigation
between the parties involved, where often feelings are running high, damaging
the necessary negotiating environment for the resolution of the conflict. Due
to it, it is the responsibility of the Judicial Administrator to maintain a
conciliatory position between creditors and debtors.
Where possible,
the Judicial Administration may seek a conciliatory understanding between the
parties to arrive at the administrative judgment of the divergence of the
claims. This simple, but laborious, procedure means that the reorganization
procedure has far fewer incidents, resulting in a significant reduction of
judicial challenges.
In this way,
the Judicial Administration must have an exemption, not seeking to act in favor
of either an eventual creditor or in favor of the Company in reorganization,
fulfilling only the role of passing to the court the information in the best
way possible that may represent the reality of the period or facts established,
demanding what understand necessary according to the law, always aiming at the
proper delineation of judicial reorganization in obedience to the guiding
principles of this institute.
In addition to
the monthly activity report, the Judicial Administrator shall submit another
report in the judicial reorganization proceedings, within fifteen days after
the closing of the judicial reorganization, as a result of the provision of
section III, of the caput of article 63, of Act no. 11.101/2005.
ORLEANS AND
BRAGANÇA defines it precisely:
“This report is the last act of the judicial
administrator, in case of compliance with the judicial reorganization plan, and
will justify the closing ruling of the judicial reorganization.”[44]
For
grammatical reasons, it could be considered that the report should be presented
after the closure of the process of Judicial Reorganization. However, with a
logical interpretation of the provisions of the law, the most correct exegesis
and according to other principles of the reorganization procedure, is that this
report must precede the ruling to close the Judicial Reorganization or
Bankruptcy, according to the lesson of MAMEDE[45]
corroborated by Gabriel de ORLEANS AND BRAGANÇA.
After everything
presented in this paper, the conclusion is that the agents of Judicial
Reorganization should be guided by the jurisprudence, complying with the
provisions of Act no. 11.101/2005.
In this way,
measures were presented to facilitate the performance of Judges in the Judicial
Reorganization process, mainly when dealing with relevant points to unravel the
case and to the good progress of the proceedings, such as: previous
examination; control of the legality of the plan; democratic management of
hearings; and the management of demands, claims and lawsuits; among other
measures.
For the
Judicial Administration and its multidisciplinary team, this paper showed that
the strict positioning as assistant of the Court is fundamental. The Judicial
Administrator must also follow closely the measures employed by the Company for
its recovery, bringing this to the knowledge of the Court, the creditors and
those interested in the process, in a simple way and easy to understand.
Therefore,
with the care related above, the Judicial Reorganization processes will
certainly have a much more effective course and will allow greater successes in
the restart of the company and in the maintenance of its social function.
[1] “A perícia
prévia em recuperação judicial de empresas – fundamentos e aplicação prática
(https://www.migalhas.com.br/InsolvenciaemFoco/121,MI277594,41046).
[2] MUNHOZ,
Eduardo Secchi, Anotações sobre os limites do poder jurisdicional da apreciação
do plano de recuperação judicial, in Revista de Direito Bancário e do Mercado
de Capitais, ano 10, vol. 36, abril/junho de 2007, p. 187.
[3] LOBO,
Jorge, Comentários aos art. 35 a 69, in TOLEDO, Paulo F.C. Salles de; ABRÃO,
Carlos h. (coords.), Comentários à Lei de Recuperação de Empresas e Falência,
5ª edição, São Paulo, Saraiva, 2012, comentário ao art. 47, p. 170.
[4] Ibidem p. 171-172.
[5] CAMPINHO,
Sérgio, Falência e Recuperação de Empresa: O Novo Regime da Insolvência
Empresarial, 7ª Edição, Rio de Janeiro, Renovar, 2015, p. 12-13.
[6] STJ,
Recurso Especial nº 1.314.209/SP, Terceira Turma, Relatora Ministra Nancy
Andrighi, julgado em 22/05/2012, publicado em 01/06/2012.
[7] COSTA,
Daniel Carnio. O critério tetrafásico de controle judicial do plano de
recuperação judicial
https://www.migalhas.com.br/InsolvenciaemFoco/121,MI267199,41046O+criterio+tetrafasico+de+controle+judicial+do+plano+de+recuperacao. Last view on January, 2019.
[8] Ibidem.
[9] Case Management Society of
America.
http://www.cmsa.org/Home/CMSA/WhatisaCaseManager/tabid/224/Default.aspx. Last view on January, 2019.
[10] According to the definition
brought by the website “USLEGAL”, case management in legal terms refers to the
schedule of proceedings involved in a matter. There are various stages in
litigation, such as the filing of a complaint, answers, the discovery process
(interrogatories, subpoenae, depostions, etc.), and motions that occur before a
trial is held or a decision is rendered. Each stage of the process has a
scheduled timeframe in which it must be filed with the court or completed. When
a complaint is filed and a case is assigned to a judge, the judge will often
set forth a schedule for the submission or completion of the relevant
pleadings, court appearances, and other matters. For example, in a divorce
matter, the judge will attempt to narrow the issues involved in the case,
provide deadlines for filing schedules of assets, conducting discovery, filing
of proposed visitation and custody plans, and other related matters. Depending
on the jurisdiction, a case management questionaire
may need to be filled out. The judge may also decide to send the parties to
arbitration or mediation to settle disputed matters. The conduct of the case
management conference varies by jurisdiction, so local court rules should be
consulted. A Case management Conference (CMC) is part of the court procedure.
It is a meeting between the judge and the parties (the Plaintiff and the
Defendant). The lawyers representing the parties may also appear at the
conference. A case management conference usually happens after a plaintiff
begins a law suit, but before the trial. The meeting is not a trial and as such
witnesses don't need to be present. The main purpose of the meeting is to try
settling some or all of the issues in dispute before going to trial. If no
settlement is achieved at the CMC, the matter will proceed to trial.
(http://definitions.uslegal.com/c/case-management-conference/ )
[11] According to the paragraph 11 U.S.
Code § 105 – Power of the Court.
(a)
The court may issue any order, process, or judgment that is necessary or
appropriate to carry out the provisions of this title. No provision of this
title providing for the raising of an issue by a party in interest shall be
construed to preclude the court from, sua sponte, taking any action or making
any determination necessary or appropriate to enforce or implement court orders
or rules, or to prevent an abuse of process.
(b)
Notwithstanding subsection (a) of this section, a court may not appoint a
receiver in a case under this title.
(c)
The ability of any district judge or other officer or employee of a district
court to exercise any of the authority or responsibilities conferred upon the
court under this title shall be determined by reference to the provisions
relating to such judge, officer, or employee set forth in title 28. This
subsection shall not be interpreted to exclude bankruptcy judges and other
officers or employees appointed pursuant to chapter 6 of title 28 from its
operation.
(d)
The court, on its own motion or on the request of a party in interest—
(1)
shall hold such status conferences as are necessary to further the expeditious
and economical resolution of the case; and
(2)
unless inconsistent with another provision of this title or with applicable
Federal Rules of Bankruptcy Procedure, may issue an order at any such
conference prescribing such limitations and conditions as the court deems
appropriate to ensure that the case is handled expeditiously and economically,
including an order that—
(A)
sets the date by which the trustee must assume or reject an executory contract
or unexpired lease; or
(B)
in a case under chapter 11 of this title—
(i)
sets a date by which the debtor, or trustee if one has been appointed, shall
file a disclosure statement and plan;
(ii)
sets a date by which the debtor, or trustee if one has been appointed, shall
solicit acceptances of a plan;
(iii)
sets the date by which a party in interest other than a debtor may file a plan;
(iv)
sets a date by which a proponent of a plan, other than the debtor, shall
solicit acceptances of such plan;
(v)
fixes the scope and format of the notice to be provided regarding the hearing
on approval of the disclosure statement; or
(vi)
provides that the hearing on approval of the disclosure statement may be
combined with the hearing on confirmation of the plan.
[12] O Valor
Econômico: Magistrado Inova em Recuperação Judicial. Dez. 2014.
[13] Law on Judicial Reorganization and
Bankruptcy RF, article 140: The sale of assets will be carried out in one of
the following ways, in the following order of preference: I - sale of the
company, with the sale of its block establishments; II - disposal of the
company, with the sale of its subsidiaries or production units alone; III -
blocking of assets belonging to each of the debtor's establishments; IV -
Disposal of the individual assets. § 1 If it is converted to the realization of
the asset, or due to opportunity, more than one form of alienation may be
adopted. Paragraph 2. The realization of the asset shall begin independently of
the formation of the general creditors. Paragraph 3. The disposal of the
company shall be all goods required for the profitable operation of the
production unit, which may include the transfer of specific contracts. § 4 In
the transmission of assets alienated in the form of this article that depend on
public registration, this will serve as sufficient acquisition title the respective
court order.
[14] CF/88,
art. 5o, inc. LXXVIII: a todos, no âmbito
judicial e administrativo, são assegurados a razoável duração do processo e os
meios que garantam a celeridade de sua tramitação. (Incluído pela Emenda
Constitucional nº 45, de 2004).
[15] CF/88,
art. 37, caput: A administração pública direta e indireta de qualquer dos Poderes da
União, dos Estados, do Distrito Federal e dos Municípios obedecerá aos
princípios de legalidade, impessoalidade, moralidade, publicidade e eficiência
(...) (Redação dada pela Emenda Constitucional nº 19, de 1998).
[16] TZIRULNIK,
Luiz. Recuperação de empresas e falências: perguntas e respostas. 5ª ed. rev.,
atual. e ampl. Da obra Falências e concordatas: perguntas e respostas. São
Paulo: Revista dos Tribunais, 2007. P.31.
[17] ORLEANS E
BRAGANÇA, Gabriel de. Administrador Judicial: Transparência no processo de
recuperação judicial. São Paulo, Quartier Latin; 2017, p. 120-121.
[18] CEREZETTI,
Sheila. A recuperação judicial de sociedade por ações: o princípio da
preservação da empresa na lei de recuperação e falência. São Paulo: Malheiros,
2012. P. 424.
[19] TJ-SP –
AI: 21791120720148160000 SP 2179112-07.2014.8.26.000, Relator: Helio Faria,
Data de Julgamento: 25.05.2015, 18ª Câmara de Direito Privado, Data de
Publicação: 03.06.2015.
[20] MANDEL,
Júlio Kahan. Nova lei de falências e recuperação de empresas anotada: lei
11.101, de 09.02.2005. São Paulo: Saraiva, 2005. P.51-52.
[21] Idem.
[22] CAMPOS,
Luiz Antonio de Sampaio. Deveres e responsabilidade. In: PEDREIRA, José Luiz
Bulhões; LAMY FILHO, Alfredo (coord.). Direito das companhias. Rio de Janeiro:
Forense, 2009. v.1. p.1.100.
[23] ORLEANS E
BRAGANÇA, Gabriel de. Administrador Judicial: Transparência no processo de
recuperação judicial. São Paulo, Quartier Latin; 2017, p. 122.
[24] CEREZETTI,
Sheila. A recuperação judicial de sociedade por ações: o princípio da
preservação da empresa na lei de recuperação e falência. São Paulo: Malheiros,
2012. P. 424.
[25] COSTA,
Daniel Carnio. Administrador Judicial moderno. Artigo publicado no jornal Valor
Econômico do dia 06/06/2017, caderno Legislação & Tributos.
[26] ORLEANS E
BRAGANÇA, Gabriel de. Administrador Judicial: Transparência no processo de
recuperação judicial. São Paulo, Quartier Latin; 2017, p. 122-123.
[27] MENDES,
Bernardo Bicalho de Alvarenga. A importância do administrador judicial como
órgão auxiliar ao juízo falimentar na busca da eficácia dos processos
falimentares e de recuperação judicial de empresas. Revista de Direito
Mercantil, Industrial, Econômico e Financeiro. V. 49, nº 155-156, p. 263-268,
ago.dez., 2010. P. 263.
[28] ORLEANS E
BRAGANÇA, Gabriel de. Administrador Judicial: Transparência no processo de
recuperação judicial. São Paulo, Quartier Latin; 2017, p. 124.
[29] FAZZIO
JÚNIOR, Waldo. Lei de falência e recuperação de empresas. 4ª ed. São Paulo:
Atlas, 2008. P. 173.
[30]
PURIFICAÇÃO, Carlos Alberto da. Recuperação de empresas e falência comentada.
São Paulo: Atlas, 2011. P. 73.
[31] GIASANTE,
Gilberto. Um ensaio prático sobre a recuperação judicial especial> a visão
do advogado e do administrador judicial. In: LUCCA, Newton de; DOMINGUES,
Alessandra de Azeredo (Coords.). Direito recuperacional: aspectos teóricos e
práticos. São Paulo: Quartier Latin, 2009. P.312.
[32] ORLEANS E
BRAGANÇA, Gabriel de. Administrador Judicial: Transparência no processo de
recuperação judicial. São Paulo, Quartier Latin; 2017, p. 142.
[33] ORLEANS E
BRAGANÇA, Gabriel de. Administrador Judicial: Transparência no processo de
recuperação judicial. São Paulo, Quartier Latin; 2017, p. 134.
[34] Reestruturação
de empresas: como recuperar e reerguer negócios / Salvatore Milanese [et al.].
1. Ed. – São Paulo: Matrix, 2016. P. 13.
[35]
Reestruturação de empresas: como recuperar e reerguer negócios / Salvatore Milanese
[et al.]. 1. Ed. – São Paulo: Matrix, 2016. P. 14
[36] OLIVEIRA,
D. P. R. da. Organização e Métodos. São Paulo, Atlas, 2007. P. 25.
[37] BEAL,
Adriana. Gestão estratégica da informação. São Paulo, Atlas, 2004.
[38] CARVALHO,
Fábio Câmara de Araújo. Gestão do conhecimento. São Paulo: Pearson, 2012.
[39] VERÇOSA,
Haroldo Malheiros Duclerc. In: SOUZA JÚNIOR, Francisco Satiro de; PITOMBO,
Antônio Sérgio A. de Moraes (Coord.). Comentários à lei de recuperação de
empresas e falência/lei 11.101/2005: artigo por artigo. 2ª ed. rev., atual. e
ampl. São Paulo: Revista dos Tribunais, 2007. p.171.
[40] CEREZETTI,
Sheila. A recuperação judicial de sociedade por ações: o princípio da
preservação da empresa na lei de recuperação e falência. São Paulo: Malheiros,
2012. P. 424.
[41] GUERRA,
Luis Antonio. Falências e recuperação de empresas: crise econômico-financeira.
Brasília: Guerra Editora, 2011. V.3. p. 501-502.
[42] BONIOLO,
Eduardo. Perícias em falência e recuperação judicial. São Paulo: Trevisan
Editora, 2015, p. 73.
[43] COSTA,
Daniel Carnio. Administrador Judicial moderno. Artigo publicado no jornal Valor
Econômico do dia 06/06/2017, caderno Legislação & Tributos”.
[44] ORLEANS E
BRAGANÇA, Gabriel de. Administrador Judicial: Transparência no processo de
recuperação judicial. São Paulo, Quartier Latin; 2017, p. 139.
[45] MAMEDE,
Gladston. Direito empresarial brasileiro: falência e recuperação de empresas. 5ª ed. São Paulo: Atlas, 2012. V.
4, p.64.