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May 2008
Number: XXVI |
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This month’s newsletter draws attention to developments in the areas of arbitration, environmental law and taxation.
Of special note was the ruling of the São Paulo Court of Justice, that against the right of a party to a contract to refuse of a party to submit any contractual irregularities to arbitration, where this has been previously agreed.
In environmental law, the Mato Grosso Court of Justice has issued a ruling prohibiting the exploitation for economic purposes of native areas that have been restored.
In tax law, we highlight ADIN nº 4071 issued by the PSDB, which claims that the law governing the levying of the COFINS tax by law firms is unconstitutional. |
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ARBITRATION
TJ-SP rules in favor of arbitration
In a cogent ruling in line with the ruling of the STJ, the TJ-SP rejected recourse to appeal by a party to annul a previous ruling of a court of arbitration. The Court of Justice ruled that the existence of the full commitment clause, which establishes, as part of the contract, the rules that are to be abided by on occasion of commencement of arbitration proceedings, lies outside the jurisdiction of the state judiciary. (Ap. Civ. nº 1117830-0/7. 25the Chamber of Private law of the TJ-SP)
ABRIDGMENTS
The 3rd Section of the STJ approved Abridgment nº 347: “Knowledge of the right of appeal regardless of whether the defendant is in custody or not”. |
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ENVIRONMENTAL LAW
Rehabilitated native areas may not be used for economic exploitation
The 1st Civil Chamber of the Court of Justice of the State of Mato Grosso has ruled that rehabilitated native areas may not become subject to exploitation for economic activities. According to the ruling, it is a proven fact that environmental degradation occurs in such cases, for which reason the Court ruled to restore the collective interest in ensuring a healthy environment. (Interlocutory Appeal No. 104319/2007).
CIVIL LAW
Breach of contract does not automatically constitute moral damages
The Higher Court of Justice recently ruled that failure to abide by the clauses of contract may frustrate the expectations of the party issuing the contract, but does not automatically constitute moral damages. (Resp nº 876.522-RJ)
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LABOUR LAW
Company wins moral damages suit filed by employee, ruling out limitation in labor law
In a ruling of the RR-1977/2005-003-24-00.5, the 6th Circuit of the TST upheld the ruling of the Regional Labor Court of the 24th Region, which ordered the employee to be paid R$ 10.000,00 for moral damages. The case was judged in the Ordinary Court and, with EC n° 45/2004, jurisdiction passed to the Labor Court, which ruled out the application of limitation in labor law. The Court further ruled that article 7º, item XXIX, of the Federal Constitution, which establishes a limit of two years in labor matters, deals with the employee and not with the employer.
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TST adopts the use of digital signatures for judgments
The justices of the Higher Court of Labor have begun to adopt the use of digital signatures for judgments which they hand down. The automation of this procedure, with assurances of security and authenticity, will shorten the interval between a ruling and its announcement.
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TAX LAW
COFINS for Law Firms called into question by ADIN
The PSDB lodged, on 22.4.2008, ADIN nº 4071 to the STF, questioning the constitutionality of article 56 of Law nº 9.430/96, which establishes that the COFINS tax should be collected by civil society organizations that provide a regulated service, arguing that exemption is provided by LC nº 70/91. In case of their appeal being rejected, the PSDB requests that payment of the COFINS be made obligatory only after the matter has been debated and a final ruling reached by a Plenary Session of the Court. |
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STJ decides at what point income is considered to have become available to a company
Although this is still being discussed by the STF, the point at which income is considered to have become available to a holding or associate company in Brazil, for the purposes of calculating tax, was ruled on by RESP 983.134-RS, on 3.4.2008, by the STJ. This Court ruled that a matter of fact giving rise to taxable income is deemed to have occurred from the time of the external publication of the balance of assets of a company, in such a way that there is no wrongdoing with regard to article 7º of INSRF nº 213/2002.
ICMS Conventions
9.4.2008 saw publication of ICMS Conventions 2 to 53, of which the most important are ICMS Convention 17, which authorizes the States of Rio Grande do Sul and São Paulo to lower the baseline for the calculation of the ICMS tax on meals furnished by bars and restaurants and ICMS Convention 20, which authorizes States to prohibit the enjoyment of presumed credit by taxpayers with an outstanding tax debt. |
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SECURITIES AND EXCHANGE COMMISSION
Regulation nº 469/08 deals with enforcement of Law nº 11.638/08
The Brazilian Stock Exchange Commission (CVM) issued, on 2.5.2008, CVM Regulation n° 469/08, laying out guidelines for dealing with the main aspects of accounting information that were altered by Law nº 11,638/08. The Regulation establishes, among other clauses, the adoption of market values for amalgamations, splits and mergers, which may, nonetheless, be temporarily included at the accounting value up to the close of the business year under way at the time. |
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Regulation 467/08 establishes the rules for approving derivative contracts negotiated or registered in organized stock markets
The Brazilian Stock Exchange Commission published on 11/04/2008, Regulation nº 467/08, which establishes the rules for the approval of derivative contracts negotiated or registered in organized stock markets, which are stock exchanges, and futures markets, and over-the-counter markets. The main aim of the new Regulation, according to an announcement on the organizations web site, is to ensure that the models for derivative contracts negotiated in organized markets be submitted for the approval of the CVM.
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Staff members begin post-graduate courses
According to the Firm’s guidelines, which state that all lawyers should routinely update their knowledge of the law, beyond what they learn on the job, Antônio Carlos Acioli (ACA), a member of the Regional Unit in Brasília/DF, began a post-graduate course in Constitutional Law at Unisul, sponsored by the Public Law Institute – IDP and the Luís Flávio Gomes Learning Network– LFG. Likewise, the lawyer, Jussara de Barros Araújo (JUS) began a post-graduate course in Labor Law at the Curitiba University Center (UNICURITIBA) and our partner, Ana Carolina Lago Bahiense (ACL), coordinator of our Curitiba and Porto Alegre units, began a new post-graduate course in Civil and Corporate Law at the Pontifical Catholic University of Paraná - PUC/PR.
Partners promoted in the Office hierarchy
The office hierarchy divides partners into four levels: junior partners, full partners, masters and senior partners. On the occasion of the last meeting of the Executive Committee and the Executive Department of Trigueiro Fontes Advogados, in Recife in the month of April, the partners, Larissa Oliveira Maranhão (Recife), Karyna Saraiva Leão Gaya (Fortaleza) and Ana Carolina Lago Bahiense (Curitiba) were promoted. Larissa is a now a master partner, while Karyna and Ana Carolina have been made full partners. We would like to congratulate all these partners, who, through their dedication, efforts and professional competence, have made such an outstanding contribution to the Firm.
Congress "Thirty-Five years of the Brazilian Civil Process Code "
Elizabeth Malvert (ELI), Henrique Oliveira (HSO) and Camila Amorim (CAS), from our São Paulo office, attended the Congress to mark "Thirty-five years of the Brazilian Civil Process Code ", held in April 2008, by the University of São Paulo’s School of Law. The congress gathered together some of the most prestigious civil process lawyers in the country to speak about the current situation regarding the Brazilian Civil Process Code, following the various amendments that have been made in the past three years.
Rio Grande do Norte Business Journal publishes article by Carlos Rosemberg Fernandes Jr.
The article, "The new quest for Eldorado: business opportunities in the State of Rio Grande do Norte", by our lawyer, Carlos Rosemberg Fernandes Jr. (CRJ), was published in the March 2008 edition of the Rio Grande do Norte Business Journal, (Year I, edition 7).
1st Forum on Tourist Law takes place in Porto de Galinhas in the State of Pernambuco
Our partners, Juliana Oliveira de Lima Rocha (JOL), Ana Carolina F. de Melo Brito (ANA) and Daniela Braga Guimarães (ELA), all from the Regional Unit in Recife, attended the 1st Forum on Tourist Law held in the Porto de Galinhas Tourist Resort. The aim of the event was to provide discussion on the laws that should be respected by all those involved in the tourist industry, including the activities of travel agents, the provision of tourist programs, packages and trips, in addition to examining the requirements and functioning of hotels and the rights of guests and addressing the rules applying to tourist transport.
Trigueiro Fontes Advogados at the Akzo Nobel Cultural Event
Members of our São Paulo office attended the cultural event held by Akzo Nobel at the Tom Brasil Show House, in April 2008. The event was held to commemorate the acquisition of Chemical Industries (ICI) by Akzo Nobel.
Roberto Trigueiro visits US nuclear aircraft carrier
In the capacity of representative of the Pernambuco branch of the American Chamber of Commerce (AMCHAM/PE), Roberto Trigueiro Fontes visited the George Washington aircraft carrier, as it passed along the Pernambuco coast. Various officials were present at the event, including the Governor of the State of Pernambuco, Eduardo Campos.
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EDITORIAL BOARD composed of members Vanessa Arruda, Antônio Carlos Acioli and Luiz Gustavo Meira Moser, 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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