In a recent decision, the 3rd Panel of the Superior Court of Justice (STJ) ruled that the creditor of an advance on a foreign exchange contract does not need to wait for the payment of the other credits included in the Judicial Recovery (RJ) to receive the amounts owed to it.
What is a foreign exchange contract?
A foreign exchange contract is a document that formalizes the purchase or sale of foreign currency, and the Advance on Foreign Exchange Contract (ACC) is a specific modality that allows the exporter to receive the amounts related to the export in advance.
The ACC works as a kind of financing, in which the bank advances funds to the exporter before the product is shipped to the final recipient.
How the Advance on Foreign Exchange Contract in practicein practice?
In a case analyzed by the STJ, involving an execution filed against a company in RJ, the lower court granted the attachment of amounts to satisfy the creditor’s claim, arising from the default of an advance on a foreign exchange contract by the company in reorganization.
However, the lower court ruled that the transfer of these amounts, while there were still creditors eligible for judicialreorganization, would violate thereorganization plan and jeopardize the reorganization process.
However, based on article 49, paragraph 4, of Law 11.101/2005 (the Judicial Reorganization and Bankruptcy Law), Justice Ricardo Villas Bôas Cueva, reporting judge for the 3rd Panel, decided that the amounts handed over to the debtor as a result of theACC arenot subject to the effects of the judicialreorganization.
According to him, in the exchange contract advance operation, the funds are advanced in national currency to the exporter as a form of financing. In this way, the export proceeds are not part of the assets of the exporting company in recovery, but of the financial institution that granted the advance.
Considerations
Furthermore, the justice correctly explained that, according to STJ case law, there is no way to postpone payment of the ACC creditor until after the end of the judicial reorganization, given that failure to settle the claims, whether or not they are subject to the effects of the reorganization, entails the possibility of the debtor being declared bankrupt.
Finally, the minister added that “the legislator’s choice not to subject these credits to the effects of judicial reorganization was aimed at protecting exports, encouraging financial institutions to continue granting advance credit to interested parties”.
Therefore, the decision analyzed here, by guaranteeing that credits arising from ACC operations are not affected by the effects of judicial reorganization, was fundamental to preserving the confidence of financial institutions in financing exports, ensuring the continuity of these operations and, consequently, stimulating foreign trade
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