PROCEDURAL LAW

STJ permits transmission of documents regarding application for an interlocutory appeal via fax
The Special Court of the STJ, by a majority vote, has ruled that it is possible for application for an interlocutory appeal to be transmitted by fax, without being accompanied by the documents that make it up, which may be gathered together at a later date, together with the original appeal document. (Resp nº 901.556-SP)

Reoccurrence of register on blacklists does not constitute Moral Damages
The STJ unified the jurisprudential interpretation in such a way as to rule out claims for moral damages in situations where the plaintiff has already been registered on credit blacklists. Until that time, the 3rd Panel of the STJ understood that, even in such cases, there was a right to damages. (Resp nº 1002985)

TAX LAW

Injunctions without appropriate argumentation or full collateral for a debt may not suspend tax foreclosure
On 13.5.2008, the 2nd Panel of the STJ decided that stays of tax foreclosure without relevant arguments and without full collateral for the debt to be foreclosed may not be held to be grounds for suspension of foreclosure. The Circuit ruled that article 739-A, §1º, of the Civil Process Code applies to tax foreclosure. (Resp nº 1024128)

Banks may breach the confidentiality of customers under orders from the National Treasury
Should the National Treasury so decide, banks and other financial institutions may breach the confidentiality of their customers. The decision in two sittings in Mato Grosso do Sul was taken by a majority vote of the 3rd Panel of the STJ and followed in full the vote of Justice Humberto Gomes de Barros. (Resp nº 921494 and Resp nº 987385)

 

Declaration of Brazilian Capital Assets held overseas
The declaration of Brazilian Capital Assets held overseas begins next Monday 9 June. Individuals and companies are obliged to declare to the Central Bank assets of any kind worth US$ 100,000 or more held overseas as of 31 December 2007. The deadline for declaration of such assets is 31 July 2008.

It is unlawful to require the CND (statement of no debt) to register companies
The 4th Panel of the STF has granted RE nº 207946 establishing that it is unlawful to require a certificate stating that no debts are held with the Federal Inland Revenue before opening a company or becoming a shareholder in a company. The Panel ruled, by a majority vote, that individuals are not the same as companies, and thus debts held by the former may not serve as an obstacle to setting up the latter, under pain of breaching the constitutional right to freely take up any form of employment, office or profession.

LABOUR LAW

New Jurisprudential Guidelines of the TST

OJ Nº 361. SPONTANEIOUS RETIREMENT. THE ONE-OFF NATURE OF AN EMPLOYMENT CONTRACT. FINE OF 40% OF FGTS FOR THE WHOLE PERIOD.
Spontaneous retirement does not constitute grounds for annulling an employment contract if the employee continues to provide services for the employer after retirement. Therefore, on the occasion of wrongful dismissal, the employee has the right to payment by the employer of a fine of 40% of FGTS deposits made in the course of the period covered by the labor contract.

 

TST rules out money held in pledge in executory processes
Holding money in pledge in executory processes, when other assets have been named, lies in breach of the clear and legal rights of the debtor, even if the debtor is a financial institution. This understanding guided the ruling of the Special Section on Individual Bargaining (SDI-2) which upheld the appeal of the Bank and determined the release of money held in pledge for payments resulting from a ruling of a labor court. Justice Pedro Paulo Manus remarked that it was undisputable that this was a question of an executory process, since the principal process, now with amendments to SDI-1, is awaiting an appeal ruling from the TST and stated that: “despite what article 655 of the CPC says regarding the order to grade the assets assigned to be held in pledge, there is still no debt instrument, or sufficient grounds for application of the regulation laid out in article 620 of the CPC, according to which the debt should be executed should be carried out in the manner that does least harm to the debtor”. (ROMS-302/2007-000-04-00.0)

OJ Nº 365. TEMPORARY STABILITY. MEMBER OF THE TRADE UNION FISCAL COUNCIL.
A member of the trade union fiscal council does not have the right to the stability as laid out in articles 543, § 3º of the CLT and 8º, VIII, of CF/1988, in so far as he or she does not represent or act in the defense of class rights respectively, and his or her responsibility is restricted to the supervision of financial management of the trade union. (Article 522, § 2º, of the CLT).

 

Daniela Ribeiro returns to her activities in Brasília
After a one-year spell at the Salvador Regional Unit, in the State of Bahia, where she served as director of the local team, our partner, Daniela Moreira Sampaio Ribeiro (RIB), has returned to the Brasília Regional Unit, in the Federal District, where she is director of the local branch.

The Brazilian Chamber of International Commerce’s Arbitration Commission
Fábio de Possídio Egashira (POS), one of our senior partners and reviewer in the field of civil law and arbitration, attended the Brazilian Committee of the International Chamber of Commerce’s Arbitration Commission, headed by Professor Arnoldo Wald. Debates were held on issues regarding international arbitration and cooperation between Brazilian and overseas law firms; the Working Group on the 50 years of the New York Convention and the regulation of restrictions on arbitrators.

Mergers and Acquisitions in Porto Alegre, in the State of Rio Grande do Sul
Luiz Gustavo Meira Moser (GUT)  and Márcio Vasconcellos (MVS), members of our Porto Alegre office, attended an event held by the Brazilian Institute of Corporate Law (IBRADEMP), which addressed sensitive legal issues regarding the procedures surrounding mergers and acquisitions at both national and international level.