17/04/2025
In the judgment of Special Appeal n. 2.163.463/SP, presided over by Justice Ricardo Villas Bôas Cueva, the Superior Court of Justice (“STJ”) addressed the limits of the arbitral jurisdiction to decide on the offsetting of credits subject to judicial restructuring.
Even though the reasoning was rejected by lower courts, the STJ held that offsetting should not be allowed between reciprocal claims whose underlying events preceded the judicial restructuring.
According to STJ, this occurs because, as from the date that the request for judicial restructuring is granted, the organization and payment methods of the claims subject to the restructuring plan becomes a cornerstone to the legal structure designed to overcome the state of economic crisis, as provided for in Law n. 11.101/2005 (“Brazilian Bankruptcy and Judicial Restructuring Law”).
Thus, due to the logic underlying the Brazilian Bankruptcy and Judicial Restructuring Law – aimed at organizing and overcoming the business crisis –, all matters related to the payment of claims subject to judicial restructuring fall under the jurisdiction of the restructuring court, as they have a direct impact on the collectivity of creditors and other interested third parties.
Given the recognition that the offsetting of claims subject to judicial restructuring constitutes an inalienable property right, the STJ held that such a matter could not be subject to arbitration, pursuant to Article 1 of Law n. 9.307/1996 (“Brazilian Arbitration Act”):
In this manner, based on the understanding that it is for the restructuring court to assess the possibility of offsetting, the STJ declared the partial nullity of the arbitral award, under item IV of Article 32 of the Brazilian Arbitration Act.
Despite this interpretation, the decision reiterated that there is no impediment to initiating arbitration merely because one of the parties is undergoing judicial restructuring, as, pursuant to §9 of Article 6 of the Brazilian Bankruptcy and Judicial Restructuring Law, the subjective status of one of the parties – whether in judicial restructuring or bankruptcy – does not prevent or suspend the initiation of arbitral proceedings. In other words, it does not imply the non-arbitrability of any and all disputes involving a company in judicial restructuring.
In the specific case, the annulment of the arbitral award resulted solely from the non-arbitrability of the subject matter, as the offsetting of claims subject to judicial restructuring constitutes an inalienable property right, and not from the granting of the request for judicial restructuring itself.
This is a relevant and unprecedented decision on the matter, highlighting the importance of carefully evaluating the arbitrability of issues involving claims subject to judicial restructurings and bankruptcies.
L.O. Baptista’s Dispute Resolution team, a benchmark in arbitration, is ready to offer specialized support to its clients.
Co-authored by: Silvia Rodrigues Pachikoski, Mariana Dias Sallowicz, Gabriel Rogenfisch Quintans, José Victor Palazzi Zakia and Julia Guimarães Rossetto
