2/5/2023
The Superior Court of Justice will analyze the Conflict of Competence nº 194336, related to the dispute between Americanas S/A and Banking and Trading Group Pactual S/A, which arose from the disclosure of the “accounting inconsistencies” in the retailer’s balance sheet, around BRL 20 billion representing a higher value than the company’s net worth, which was BRL 14.7 billion until September last year.
There is a conflict of judicial competence between the 4th Business Court of Rio de Janeiro and the 1st Business and Arbitration Disputes Court of São Paulo, which is the elected forum to settle pre-arbitration issues in their contract. Both Courts found in favor of their own competence and, to increase tension, decided the requests for precautionary protection in a conflicting manner.
The merits of the discussion is whether BTG, as the creditor, could anticipate the maturity of Americanas debts and, in accordance with the compensation contract executed between them, extinguish the obligations and withhold the amount of BRL 1.2 billion, due to the facts disclosed by Americanas. The main controversy lies within the fact that the compensation can jeopardize the success of the judicial recovery intended by Americanas, due to the possibility that Americanas may not own enough assets to restructure itself.
To avoid defaulting, Americanas filed, before the 4th Business Court of Rio de Janeiro, a suit requesting a preparatory injunction relief to the judicial recovery proceedings, in which it requested urgent protection to suspend the effects of the clauses that impose the anticipated maturity of debts, and the enforceability of obligations relating to the financial contracts and, also, of the effects of default (i.e. compensation). The injunction was granted, and the amount was frozen from the BTG account, which continuously appealed the decision, without success.
BTG, then, raised the forum non conveniens objection of the State Courts to resolve the matter because the dispute resolution clause contained in the compensation agreement provides that any controversies would be resolved by arbitration before the Center for Arbitration and Mediation of the Brazil-Canada Chamber of Commerce.
Thus, intending to take the discussion to arbitration, BTG filled a pre-arbitration interim request before the 1st Business Court and Arbitration Disputes of São Paulo. On a provisional basis, São Paulo’s Court concluded that the effects of compensation should be maintained until the arbitral tribunal is constituted and resolves the dispute, at the risk of violating the principle of kompetenz-kompetnz (Art. 8, §1, of Law 9.307/1996).
Given the conflicting decisions, BTG raised a conflict of judicial competence before the Superior Court of Justice, which, in turn, concluded that the reversal of the values for the judicial recovery proceedings was suspended while maintaining its unavailability. The decision is provisional and may be reviewed during the process.
If, on one hand, the Americanas Case may affect the confidence that foreign investors have in the Brazilian capital market, on the other hand, arbitration in Brazil is increasingly regarded as a solid and safe means to settle complex and high-valued disputes, considering that it has been constantly supported by the State Courts.
LO. Baptista Advogados will continue to follow up on the upcoming developments.
