Beatriz Benedete Cardoso
Lawyer at Marcos Martins Advogados
In a recent decision, the Third Panel of the Superior Court of Justice (STJ), in RESP 1.953.212/RJ, with Justice Nancy Andrighi as rapporteur, reinforced the Court’s case law on the appropriateness of arbitration against companies undergoing Judicial Reorganization.
In her vote, the Reporting Justice stressed that the granting of the request for judicial reorganization does not have the power to change the nature of the available property right of the claim to be recognized and quantified via arbitration proceedings, given that the assets owned by the company under reorganization remain at its disposal during the reorganization, and there are therefore no obstacles to the initiation of arbitration.
The ruling also honored the principle of kompetenz-kompetenz, according to which it is up to the Arbitral Tribunal itself to decide on its competence to process and judge the claim submitted to it.
In short, the case law of the STJ understands that the granting of the request for judicial reorganization does not immediately invalidate any arbitration clauses contained in contracts entered into by the company undergoing reorganization, so that the determination and settlement of any debts against the Recovering Company must be carried out through arbitration. The practice or control of enforcement acts, however, is the exclusive competence of the reorganization court.
It is worth noting that the Court’s understanding was enshrined in article 6, paragraph 9, of Law 11.101/2005 (Bankruptcy Law), as amended by the recent reform introduced by Law 14.112/2020, which states that “the processing of judicial reorganization or the decree of bankruptcy does not authorize the trustee to refuse the effectiveness of the arbitration agreement, nor does it prevent or suspend the initiation of arbitration proceedings”.
Marcos Martins Advogados is attentive to the latest case law in order to provide adequate and effective advice to our clients.
