ARBITRATION
Recent Decisions Reinforce Arbitration
The 3rd Panel of the Federal Superior Court (STJ) has recognized that arbitration involving Public Authorities can be executed through arbitration commitment, even without a predicted arbitration in the notice with invitation to bid or contract. On another case, the TJPR understood that the full arbitration clause was enough to the institution of arbitration, the minuted mission (reference term) fulfills any possible need for arbitration commitment. And voluntary participation in the arbitration, bars the party from challenging its validity afterwards. Both judgments reaffirm good faith as a fundamental principle of arbitration.
(RE 904813 e EI 428067110)
TAX LAW
STF Suspended Paraiba State Law Requiring ICMS on Interstate Non-Presential Purchases
Minister Joaquim Barbosa from the STF, suspended with retroactive effect, the judicial application of Law No. 9582 of December 12th, 2011 - State of Paraiba. It ruled the requirement of an ICMS portion on interstate trade transactions for goods or assets destined to the final consumer, when the acquisition occurs on a non-presential way, via internet, telemarketing or showroom. The Plenum from the STF will either endorse this decision or not.
(ADI 4705)
State of Destination Must Credit the ICMS of Benefited Company Through Pro-DF
The 1st Panel of the STJ has assured credit to a company, derived from the interstate tax share on Goods and Services (ICMS) owed to the Federal District (DF) by the source state, totaling 12%. Mato Grosso, the state of destination, had dismissed only part of such percentage. According to the reporter, Minister Benedito Gonçalves, the benefit granted by the DF should not be confused with tax incidence nor exemption. For this reason he considers tax due to the DF corresponding to the total tax share of 12%, concerning replacement tax on interstate trade transactions.
(RMS 32937)
Subsidiary's Tarnished Credit Report Restrained Company's Financial Clearance
By unanimous voting, the 1st Panel of the STJ found it unduly the issuance of Debt Clearance Certificate (CND) to a legal entity with reference to businesses related to only one of its branches, when there are pending issues of the same corporate body from businesses of its other branches. For the reporter Minister Teori Zavascki , "is entirely meaningless and of no legal significance" to issue a debt clearance certificate to the legal entity concerning businesses of only one of its branches when, in fact, there are pending issues of that corporate body, regarding businesses from one or more of its other branches. (REsp 939262) |
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CIVIL PROCEDURAL LAW
The Motion for Advance Dismissal of Enforcement is Admissible for Discussing Penalty's Amount
The 3rd Panel of the STJ considered the motion for advance dismissal of enforcement to be admissible in order to discuss matters relating to daily fine amount. For the reporter Minister Massami Uyeda, the jurisprudence of the STJ is peaceful in the sense that the decision that arbitrates the penalty doesn't make it res judicata. He explained further that the Judge is empowered to impose fine on its own initiative or at the request of the party, and in the same way empowered to revoke it, in cases in which it becomes unnecessary. (REsp 1019455)
Appeal Cannot Be Turned into Bill of Exceptions Against Anticipation of Guardianship or Restraining Order
The appeal filed against a decision, granting anticipated custody or imposing a preliminary injunction, cannot be converted into a bill of exceptions. To the reporter of the 3rd Panel of the STJ, minister Nancy Andrighi "when it comes to preliminary injunctions or anticipatory tutelage, the appeal brought against them, shall necessarily be a bill of review. This understanding is supported by the fact that, given the urgency of these measures and the sensitive effects produced in the sphere of rights and interests of the parties, there would be no interest in waiting for an appeal pending trial."
(RMS 31445)
The Imprevisibility Theory and Future Trade Contracts
The 4th Panel of the STJ denied the application of the imprevisibility theory to future sales contracts of soybeans under a set price, agreed upon by a Goiás farmer in the early 2000's. Following vote of Minister Antonio Carlos Ferreira, the Panel considered that the high price of the product, due to foreign exchange rate variation at the time, did not turn the contract’s fulfillment too costly for the producer, it only reduced the profit he could have obtained, thus it is not possible to have a contract review by the Judiciary. (REsp 936741)
ENVIRONMENTAL LAW
New Deadline For Registration Of Legal Reserve
Published Decree No. 7.640 of December 9th, 2011, amending Article 152 - Decree No. 6.514 of July 22nd, 2008, which regulates infractions and administrative penalties regarding the environment and establishes the federal administrative process for verification of these infractions. Under the new Decree, as of April 11th, 2012 proper penalties may be applied for those who fail to endorse the legal reserve. |
LABOR LAW
Debtors Will Have 30 Days to Regularize Situation and Obtain Debt Clearance Certificate
Through Act TST GP No. 001/2012, the president of both, TST and the Superior Council of Labour Justice, Minister John Oreste Dalazen, amended Administrative Resolution No. 1470/2011, which governs issuance of Labor Debt Clearance Certificate (CNDT). The main innovation on new regulations is that, companies who are pre-registered with the National Bank of Labor Debtors (BNDT) will have 30 days from its inclusion, to meet obligations or regularize the situation, in order to avoid a negative score in their credit records.
Pharmaceutical Distributor Was Held Not Liable for Indemnification of Searched Employee
The 4th Panel of TST ruled by the majority that body cavity searches, consisting of visual inspection to prevent diversion of products, are justifiable specially taking into consideration that the company marketed prescription medications and there was need for strict control of products leaving the establishment. For the case reporter, Minister Eizo Ono, the employee's right to be assured their privacy and intimacy (according to Article 5, paragraph X of the Federal Constitution) is not absolute: a body cavity search conducted without excesses or abuses, prevails over the right to privacy when there is public interest concerning the security of society (as in this case). (RR-162400-53.2005.5.06.0014)
Employee Gets Fined for Unduly Collection
The 2nd Panel of TST upheld fine for litigation based on bad-faith, equivalent to 10% of the lawsuit amount, against the employee who filed for collection of paternity leave and leave of absence for his father’s death, charging the company he worked for, even though they had not discounted those leave of absence periods from his salary. To the Court, the imposed fine did not deserve to be amended, since such litigation was clearly based on bad faith, under Article 17 of the Civil Procedure Code, since the employee was claiming for something which was not owed to him, thus insulting Article 5, XXXV of the Federal Constitution.
(RR nº146500-82.2004.5.17.0006) |
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CIVIL LAW
Liability of Employers
The discussion is based on whether there is a relation of subordination to justify the joint and several liability of a company contracting transportation services for its employees, due to traffic accident caused by the employer. In the case under review, it is clear that there was not a relation of subordination between the companies, nor between the bus driver and the employer, since there was no intervention from the latter in the service rendered; thus, it must be actually defined as outsourcing. In view of that, the appellate decision which denied the strict liability of the employer due to the referred accident was regarded as correct, against the claimed violation provided in articles 932, III, and 933 of the CC/2002. (REsp 1.171.939-RJ) |
