Thyago Rodrigo da Cruz
Lawyer at Marcos Martins Advogados
It is well known that no law shall exclude any injury or threat to the rights of the Judiciary (article 5, item XXXV, of the Federal Constitution). However, according to the express provision in article 58 of Law 11.101/2005, “once the requirements of this Law have been met, the judge will grant the judicial reorganization of the debtor whose plan has not been objected to by a creditor under the terms of article 55 of this Law or has been approved by the general meeting of creditors under the terms of article 45 of this Law”, a provision that, in a way, delimits the magistrate’s plan of action.
This is because, according to Statement No. 44 of the First Business Law Conference of the Federal Justice Council¹, “the ratification of a judicial reorganization plan approved by the creditors is subject to judicial control of its legality”, it should be emphasized: exclusively of its legality, according to well-established case law.
The analysis of the viability of the judicial reorganization plan presented by the legal entity making use of the aforementioned legal benefit, in accordance with Ruling No. 46 of the aforementioned Jornada de Direito Comercial², is exclusively the responsibility of the creditors, and it is certain that “it is not up to the judge to fail to grant the judicial reorganization or to homologate the extrajudicial one on the basis of the economic-financial analysis of the reorganization plan approved by the creditors”.
In addition to the above-mentioned precepts, one cannot forget the sovereignty of the resolutions of the General Meeting of Creditors, an innovation brought in by Law 11.101/2005, from which it can be extracted that, once the creditors have analyzed the economic and financial viability of the judicial reorganization plan and it has been approved, unless there is a legal defect in its clauses, the court must approve it.
Since these are absolutely capable creditors and legal representatives who, understanding the viability and soundness of the proposal to overcome the economic and financial crisis faced by the corporate debtor, sovereignly decide to dispose of part of their credit rights in favor of a greater good, capable of benefiting the entire community, there is effectively no need to speak of any illegality to be obstructed by the actions of the Judiciary.
In these circumstances, it can be seen that the adjusted discount, as well as the other conditions for receiving credits, such as payment period, grace period, among others, cannot be reformed by the judge, to the extent that it was the creditors themselves who opted to give up part of their claims to make it possible to receive their credit rather than having to face the bankruptcy of the business debtor.
It should not be forgotten, however, that the conditions for receiving the credit should be guided by the criterion of reasonableness, and should not impose a sacrifice that is too onerous for the creditors.
In this regard, it should be noted that the aforementioned reasonableness should be measured through the application of the principle of proportionality, using for this purpose the concept brought up by Ada Pellegrini Grinover³, which consists of the trinomial (i) the adequacy of the means used to achieve a given end; (ii) the necessity of the measure and; (iii) proportionality in the strict sense, analyzed based on the comparison between the means and the intended ends, avoiding unnecessary damage to creditors.
With regard to the aspect concerning the debt discount conditions, the High Court of Justice of the State of São Paulo⁴, under the report of Judge Ramon Mateo Júnior, rightly understood:
Judicial reorganization. Concession. The sovereignty of the decision of the general meeting of creditors is not absolute, and it is up to the judge to observe, more than just its legality and constitutionality, ethics, good faith, respect for creditors and the manifest intention to fulfill the recovery goal. Recovery Plan. 70% discount, payment in fixed installments, absence of interest, decision that falls within the sovereignty of the meeting and its nature as a novation to which the creditors have agreed, monetary restatement by the IGP-M, starting from the date of publication of the approval of the plan and granting of the judicial reorganization. Judicial Reorganization Plan with presumed adequacy and apparent intention of allowing the reorganization without failing to establish form and term for payment of creditors […] (TJSP, 2nd Chamber Reserved for Business Law, Interlocutory Appeal No. 2043003-83.2014.8.26.000, Judge Ramon Mateo Júnior, j. 10/04/2015)
Regarding the stipulation of the grace period and the payment period, both Reserved Chambers of Business Law of the São Paulo State Court of Appeals⁵ have ruled exhaustively:
JUDICIAL REORGANIZATION. PLAN. CONTROL OF LEGALITY. PAYMENT OF UNSECURED CREDITORS. Discount and installments. Proposal deliberated at a meeting and approved by a large majority of creditors in the respective class. Absence of abuse and/or illegality in the approved clauses. Effectiveness of the principles of preservation of the company and its social function (art. 47 of Law 11.101/05). Precedent. Appeal not upheld on this point. MONETARY CORRECTION AND INTEREST ON ARREARS. Provision for 2% (two percent) per year. Absence of illegality. Creditors approved the plan by a large majority. Sovereignty of the general meeting of creditors. Appeal not upheld on this point. BENEFIT GRANTED TO STRATEGIC CREDITORS AND PARTNERS. Possibility. Creditors who remain suppliers of the reorganized companies. Constitutional guarantee of substantial equality. Principles of preservation of the company and its social function. Effectiveness. Article 47 of Law 11.101/05. Precedent. Appeal not upheld on this point. REVERSE AUCTION. Illegality. None. Issue deliberated and approved by a large majority. No violation of the principle of equality between creditors. Precedent. Appeal not upheld on this point. (TJSP, 2nd Chamber Reserved for Business Law, Interlocutory Appeal No. 2123441-96.2014.8.26.0000, Judge Tasso Duarte de Melo, j. 10/04/2015)
Therefore, it is more than evident that the payment conditions, regarding the discount, term, grace period, among others, as long as they do not prove to be excessively onerous to creditors, to the point of violating reasonableness, are absolutely legal, since they were approved by a sovereign and valid assembly decision, and therefore cannot be reformed by the Judiciary.
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¹AGUIAR, Ruy Rosado (Coord.). I Jornada de Direito Comercial: Enunciado nº 44. Available at <goo.gl/99Qhif>. Accessed on 18.09.2018.
²AGUIAR, Ruy Rosado (Coord.). 1st Commercial Law Conference: Statement no. 46. Available at <goo.gl/yyFVNK>. Accessed on 18.09.2018.
GRINOVER, Ada Pellegrini. The control of public policies by the Judiciary. In: GRINOVER, Ada Pellegrini. O processo: Estudos & Pareceres. 2. ed. rev. e ampl. São Paulo: DPJ, 2009, p. 43.
⁴Tribunal of Justice of the State of São Paulo, 2nd Chamber Reserved for Business Law, Interlocutory Appeal No. 2043003-83.2014.8.26.000, Judge Ramon Mateo Júnior, judged on April 10, 2015.
⁵Tribunal of Justice of the State of São Paulo, 2nd Chamber Reserved for Business Law, Interlocutory Appeal No. 2123441-96.2014.8.26.0000, Judge Tasso Duarte de Melo, judged on April 10, 2015.
