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February 2009
Number: XXXV

As reported in our December 2008 Newsletter, two airline companies have obtained court rulings allowing them dispense in part with the new rules for call centers. This was announced in a one-off ruling of the 21st São Paulo Federal Civil Bench. The latest development in a battle that looks set to drag on for a long time, the Regional Federal Court has accepted the appeal lodged by the Attorney General and has upheld the original ruling in the case of one of the companies.

In our November 2008 newsletter, we reported the ruling of the TST regarding recognition of arbitrage proceedings in labor law. This month, the 4th Bench of the TRT of the 3rd Circuit, in an equally momentous reading for the consolidation of the arbitrage system, it recognized the legitimacy of the Chamber of Conciliation and Arbitration of the State of Minas Gerais. The Bench has thrown out the Attorney General for Labor’s ruling on a civil lawsuit aiming to prevent said Chamber of Arbitration from providing arbitration in cases of labor law.


TAX LAW Bill to write off corporate COFINS debts Bill 4458/08, which aims to write off the debts of simple corporations - formerly corporations providing professional services – related to Social Security Contributions (COFINS) is currently being put before Congress. According to this proposal, all debts accrued in the interval between the judicial ruling and 17 September 2008, when the Federal Supreme Court (STF) ruled that corporations are obliged to levy COFINS, overturning the previous ruling of the Higher Court of Justice (STJ), which exempted such companies from paying this contribution. The Bill aims to uphold the legal standing of such corporations.		ADMINISTRATIVE LAW Petrobras may draw up contracts without being subject to the Laws regarding Putting Bids out to Tender Petrobras has succeeded in getting a court ruling allowing it to maintain contracts made in contravention on the Law of Putting Bids out to Tender. The restraining order was granted by Gilmar Mendes, Chief Justice of the STF. The appeal was based on the fact that the company is a private and public joint stock company and competes with others in extraction, refinement and supply of petroleum derivatives. On account of this, Petrobras is allowed to contract out in a manner that is not bound by the strict rules of Law nº 8.666/93. The company alleged that, as a joint stock company, partially owned by the public sector, it may use the Simplified Tender System as laid out in Executive Order 2.745/98. (MS 27.837)

Rio de Janeiro Court of Justice allows judicial warranty for tax foreclosure. In a ruling handed down by the 3rd Civil Chamber of TJ-RJ, the justices authorized the provision of a judicial warranty, valid for five years, as collateral for tax debt, albeit prior to a final court ruling on tax foreclosure. With this ruling, the authorized company succeeded in renewing its positive credit status which was close to being revoked. Welfare contributions may not be charged on profit-sharing and performance bonuses The TRF of the 1the Circuit, on examining interlocutory appeal 2009.01.00.003064-4, has ruled that tax credits may no longer be required on installments paid by a company to its employees by way of profit-sharing or performance bonuses, on the grounds that such payments do not constitute salary and thus should not be subject to welfare contributions.		CRIMINAL PROCEDURAL LAW STF upholds a defendants right to liberty until all recourses to appeal have been exhausted The STF, on examination of HC nº 84078-7, has ruled that a convicted criminal may only be held in custody with the case transited in rem judicatum. By a split vote, of seven to four, the justices ruled that a defendant may not be remanded on bail so long as there are outstanding appeals. The ruling was based on Subsection LVII of Article 5 of the Magna Carta, which establishes the principle of presumed innocence.

LABOR LAW Sickness Benefit does not suspend or interrupt statute of limitation In Ruling E-RR-10530-2006-029-09-00.2, the SDI-I, of the TST ruled that there is no suspension or interruption of the deadline of five years, while an employee is receiving sickness benefit. According to the reporting justice, “it cannot be argued that, once a labor contract has been suspended in virtue of the fact that the employee has been afflicted by an occupational illness, receipt of sickness benefits leads automatically to suspension of the statute of limitation”.		CONSUMER LAW Companies must abide by the rules of the SAC The TRF of the 3rd Circuit (SP and MS) has accepted the appeal of the Federal Attorney General and cancelled the preliminary order allowing an air transport company to fail to comply with Executive Order 6.523/08, which relates to the Customer Services- SAC. (Injunction no. 2008.61.00.029116-0).

Arbitrage in Labor Law The 4th Bench of the TRT of the 3rd Circuit has overruled a public civil law case judged by the Attorney General for Labor, which aimed to prevent said Arbitration Chamber from carrying out arbitrage in labor law cases. In his ruling, justice Antônio Álvares da Silva explained that the action of the Judiciary should be limited to discouraging abuse, further pointing out that the inalienability of employment rights do not pose an obstacle to arbitration. ABRIDGEMENT OF THE STF Abridgement to number 14: "The defendant has the right to full access to evidence which has been built up as part of a judicial investigation by an authorized judiciary police. This forms part of the defendant’s right to defend themselves ".		ENVIRONMENTAL LAW New environmental body up and running in the State of Rio de Janeiro State Law nº 5.101, of 4.10.2007, set up the State Environment Institute (INEA), which effectively started work on 12.1.2009, pooling the activities of three environmental organs linked to the State Environment Secretary (SEA): the State Foundation for Engineering and the Environment (FEEMA), the State Supervisory Body for Rivers and Lakes (SERLA) and the State Institute for Forests (IEF). The Institute has 214 new technical staff members, who will join the 1,000 civil servants from the now defunct organizations. One of the novelties presented by the INEA is its decentralized modus operandi which will work through the nine Regional Supervisory Bodies, which correspond to the main river basins in the State, thereby integrating environmental and water resource management. These regional Supervisory Bodies will have full autonomy, including the authority to issue environmental licenses for small-scale operations.

This month, the article “International Arbitrage Reports and their Ratification by the STJ“, byFábio de Possídio Egashira, can be read at www.trigueirofontes.com.br

Regional Office in Fortaleza/CE attends event on Wind Energy.

Staff members, Manoel Duarte (MDP) and Gilvando Figueiredo (GIL), from our Regional Office in Fortaleza/CE, attended an event run by the Ceará State Federation of Industries (FIEC) and the Ceará State Development Agency (ADECE), with a view to stepping up activities relating to the chain of production of wind energy in the state and laying down guidelines for the sector for the coming years.

Luiz Giffoni, Karyna Saraiva and Daniela Ribeiro are our new Sector Heads.

Our partner, Luiz Giffoni (LGF), has relinquished his post as coordenator of the São Paulo team and has been appointed Head of Contracts for all the clients of that office, while another partner, Karyna Saraiva Leão Gaya (KSL) has also moved from being coordinator of the FOR - 01 cell to become Head of Civil Law, a task that she will share with the existing partners who are also Heads of Civil Law (POS and ANA). Daniela Ribeiro (RIB) has moved form coordinator of the team in Brasília to take over supervision of Labor Law .

Fábio de Possídio, Larissa Maranhão and Ana Carolina Bahiense move to São Paulo.

Our partners, Fábio de Possídio Egashira (Head of Civil Law/Arbitrage), Larissa Oliveira Maranhão, and Ana Carolina Bahiense have moved to our São Paulo office. These lawyers have relinquished coordination of local teams in Recife-PE and Curitiba-PR, respectively. Larissa will now coordinate the SPO – 01 cell, while Ana Carolina will become director of the SPO – 02 team.

EDITORIAL BOARD composed of members Carlos Rosemberg Fernandes Junior, Antônio Carlos Acioli and Rodrigo da Fonseca Cahuvet coordinated by partner Ana Carolina Brito.

The information disclosed herein does not necessarily represent the Firm's opinion. Disclosure limited to the Firm's Client's or persons connected thereto. Disclosure authorized subject to indication or origin.

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