In an online debate, STJ ministers assess judicial reorganization in the post-pandemic scenario.

"The Judiciary needs tools to face the economic reality after the pandemic. It is estimated that 70% of companies will suffer some kind of difficulty. It is an unprecedented shock to the world economy," said the Minister of the Superior Court of Justice (STJ), Luis Felipe Salomão, when commenting on the macroeconomic scenario amidst the new coronavirus (Covid-19) pandemic.

Alongside ministers Moura Ribeiro and Antonio Saldanha Palheiro, Salomão participated this Monday (14) in the seminar Judicial Recovery in Brazil, promoted by the Institute of Applied Legal Studies (IEJA) and broadcast by Portal R7. The full event is available on the IEJA channel on YouTube.

Salomão predicted that the Judiciary will face "an explosion of lawsuits" due to the economic shocks caused by the pandemic. When commenting on the particularities of agribusiness within the context of judicial reorganization – the topic of the first panel discussion – he said that the Superior Court of Justice (STJ) has been interpreting provisions of the current Bankruptcy and Reorganization Law (Law 11.101/2005) in conjunction with rules of the Civil Code regarding the possibility of reorganization for rural producers.

The minister cited a ruling by the Fourth Panel, from February 2020, as an important precedent in discussions regarding recovery for rural producers. On that occasion, the panel allowed judicial recovery provided that the producer was duly registered as such and could prove, through various means, their economic activity for a minimum period of two years (REsp 1.800.032).

"This case is important because it provided an interpretation of articles 48 and 51 of Law 11.101 and also articles 970 and 971 of the Civil Code, allowing for judicial reorganization for the producer," he commented.

Sensitive topic

Minister Moura Ribeiro recalled his experience as a judge in districts in the interior of São Paulo with strong agricultural activity, such as Franca and Fernandópolis. He said that the experience gave him a special perspective on the subject, after coming into contact with the reality faced by the sector.

"There were countless cases. From that experience, I began to pay closer attention to the articles of the Civil Code that address the obligation to deliver a specific item, which are so commonly used in agribusiness," the minister commented.

According to him, the sector needs its own statute to encourage the peaceful resolution of disputes. Moura Ribeiro argues that the issues involving the sector are sensitive and require a different approach from the Judiciary.

"The Superior Court of Justice (STJ) will have to rethink theories such as the full performance of the contract, just as it did during the massive devaluation of the real in 1999," the minister assessed regarding future agribusiness cases that will demand a fair solution in the courts. According to the magistrate, the answers will be given first by the Judiciary, considering the complexity of the issue in the legislative field.

Representatives from agribusiness and the Brazilian Federation of Banks (Febraban) also participated in the panel, highlighting, among other points, the peculiarities of credit for the sector and the possible impacts of the new bankruptcy law approved by the Chamber of Deputies (Bill 6.229/2005).

Credibility

The second panel began with a speech by Minister Antonio Saldanha Palheiro, who advocated for the adoption of internal compliance systems by companies. According to the magistrate, the objective is to increase the credibility of businesses undergoing judicial reorganization in the eyes of creditors. "A company that adheres to compliance criteria will certainly convey much greater security for the granting of credit and for the continuity of its business volume," stated Saldanha Palheiro.

The minister praised Bill 6.229/2005, stating that the text under discussion in the Senate aligns with the jurisprudence of the Superior Court of Justice (STJ), and pointed to precedents from the court indicating that the institution of judicial reorganization should seek "the maintenance of business activity and the jobs generated, in addition to respecting the interests of creditors."

Regarding the bill that updates Law 11.101/2005, Saldanha Palheiro highlighted as one of the main novelties the encouragement of extrajudicial solutions in the recovery process – "in line with the guidelines of the new Code of Civil Procedure, which establishes mediation and conciliation as priorities in any procedure where there is a conflict of interests."

Specialized courts

Also present at the seminar, the Secretary-General of the National Council of Justice, Valter Shuenquener de Araújo, highlighted the importance of some recommendations to facilitate the progress of judicial reorganization processes – among them, the creation of specialized courts. "In most courts, this specialization does not exist. Often, in the interior of the country, the judge accustomed to judging family law cases and eviction cases, for example, is not used to processing the judicial reorganization procedure," said Shuenquener.

Next, Federal Deputy Hugo Leal (PSD-RJ), rapporteur in the Chamber of Deputies for the proposed new Bankruptcy and Reorganization Law, participated in the second panel. Among the new rules, the bill – now under analysis in the Senate – provides for financing during the reorganization phase, the expansion of installment payments for federal tax debts, and the presentation of the reorganization plan by creditors. According to the deputy, the contributions of the Superior Court of Justice (STJ) were fundamental for "a more in-depth debate" in the drafting of the text.

At the close of the seminar, Judge Manoel de Queiroz Calças, former president of the Court of Justice of São Paulo (TJSP), explained the understanding adopted by the São Paulo courts regarding ongoing recovery processes during the Covid-19 pandemic.

According to the judge, the two Chambers of Business Law of the TJSP (Court of Justice of São Paulo) have been deciding that, even in the midst of the pandemic, it is not within the Judiciary's purview to alter the terms of the recovery plan: "It is exclusively up to the general meeting of creditors to approve any modification of the plan due to the new situation of excessive burden or difficulty caused by the pandemic."

Source: STJ News