ENVIROMENTAL LAW

Clearance of Riverside Vegetation

A watercourse located in a Permanent Preservation Area is, irrespective of its size, protected by environmental legislation. The Higher Court of Justice (STJ) thus ordered 3.5 hectares of riverside vegetation to be restored along the banks of creek of 70 centimeters in width. The Justice ruled that the clearing of vegetation is only permissible in a Permanent Preservation Area under exceptional circumstances, when it has been proved useful for the common good or for reason of the social responsibility of any such building works, undertaking or other activity. (Resp. nº 176753).

BANKING LAW

STJ allows the use of compound interest

The Circuit judges that make up the 2nd Section of the Higher Court of Justice (STJ) have ruled that banks and financial institutions have the right to charge compound interest for periods of less than one year on their loans, so long as these have been granted by way of a contract. In the case of contracts signed after 30 March 2000, Article 5 of Provisional Measure nº 2.170-36/2001, which removes the one-year limit on the compound interest, prevails. (Resp nº 890460 and Resp nº 821357)

BUSINESS LAW

CVM alters provisions for investment funds

The Stock Market Commission (CVM) published, on 20/02/08, Instruction nº 465, which amends Instructions 409/04 and 438/06. The new Instruction allows any kind of investment fund to invest as much as it likes in overseas financial assets.

CONSUMER LAW

Setting off an alarm does not constitute grounds for damages

Justice Aldir Passarinho Jr., of the 4th Circuit of the Higher Court of Justice (STJ), ruled that the award of damages for the ringing of an alarm is only justifiable in cases where the employees of a store act to exacerbate the incident, thereby giving rise to consequences beyond the mere sounding of the alarm. (Resp n° 470694)

PROCEDURAL LAW

Higher Court of Justice (STJ) hands down novel ruling on determining deadlines by fax

The Special Court of the Higher Court of Justice (STJ), in a ruling on Requests for Divergence in Special Resource n° 640803, amended the jurisprudence regarding the deadline for presenting the originals of documents sent by fax. The new guidelines state that the countdown to this deadline begins as of the date determined by law for deadline for lodging an appeal, regardless of whether this appeal has been communicated prior to the expiry of this deadline.

The State should advance fees for expert witnesses when the Public Attorney's Office (MP) alone requires proof

By a majority vote, it was decided that the Federation or the State that is a member of the Federation should arrange for the advance payment of fees for expert witnesses when the Public Attorney's Office is the only organ to require proof, but the losing party should compensate the winning party in due course. The grounds for this are that there is no norm that obliges the defendant to advance such costs. Art. 18 of Law n. 7,347/1985 (public civil action) does not apply, as this must have a restricted interpretation.( Resp nº 933.079-SC )

Third parties assuming possession must rule out presumption of fraud

Prosecution for fraud requires that the repossession of goods have occurred after the regular process, owing to the fact that this act is written in the register or it has been proved that the party assuming possession knew of the fraud. As for the burden of proof of knowledge of the demand in course, the Reporting Justice ruled that the third party assuming possession is responsible, by way of a stay on the third party, for ruling out the presumption of fraud or proving that, with the repossession or assumption of responsibility, the debtor is not reduced to insolvency. ( Resp nº 618.625-SC )

Countdown to deadline only begins after legal notice has been given regarding the conversion of a deposit in attachment

By a majority vote, the Section ruled that the deadline for opposition to seizures may begin to be counted after the debtor has been served legal notice that his or her deposit in court has been converted into an attachment. The previous ruling provided legal notice and started counting the deadline from the time of the deposit, on the grounds that the executed debtor his or herself had made it. ( Resp nº 846 . 737-RJ )

TAX LAW

New deadline for entry into the São Paulo PPI

The Municipality of São Paulo has set a new deadline for joining the Program to Encourage Payment in Installments (PPI). The aim of this is to promote the regularization of municipal credit, arising from tax and non-tax debts, including those registered in as Outstanding Debts, whether already ruled on or awaiting ruling, in relation to circumstances occurring before 31.12.2004, in addition to the balance of fixed installments. Appeals may be lodged up to 19.12.2008.(Municipal Decree nº 49,270 of 29.2.2008)

STF allows societies of lawyers to be charged for COFINS

The ruling of the RCL 5612, published on 18.2.2008, has overruled the TRF of the 2nd Region that suspended charging societies of lawyers for COFINS.

LABOUR LAW

SDI-1 recognizes documents downloaded from the Internet

The Individual Labor Disputes Section (SDI-1) of the TST has ruled differently from the 7th Circuit, allowing notice of the occurrence of holidays and consequent suspension of the deadline for lodging an appeal to be given by way of a document downloaded from the Internet. This ruling must duly be accepted by the Labor Courts. (E-AIRR-379/2005-002-06-40.5)

Damages for Occupational Illness

The 7th Circuit of the TST has ruled that, in order for companies to be held responsible for occupational illnesses, proof of guilt is also necessary for compensation for damages. (RR n° 1612/2005-731-04-00.6)

Digital Signatures at the TST

The 2nd Circuit has ruled that digital signatures, regulated by IN n° 30/2007 of the TST, are recognized by the Labor Courts when based on a digital certificate issued by ICP-Brazil, with the use of a card and a password. However, it does not recognize documents with a digital signature when these have been scanned, for reason of the lack of regulation. (RR n° 1051/2002-003-05-40.5)

This month, the articles “CEARÁ, Land of Light” , by our colleague Karyna Saraiva Gaya, and “ELDORADO: business opportunities in the State of Rio Grande do Norte” , by our colleague Carlos Rosemberg, are available for consultation at www.trigueirofontes.com.br .

Fábio de Possídio Egashira and Ana Paula Sá Borges at the meeting of the Arbitration Commission of the ICC in Brazil

Fábio de Possídio Egashira and Ana Paula Sá Borges took part in the meeting of the Arbitration Commission of the International Chamber of Commerce in Brazil , which took place at the National Confederation of Commerce in Rio de Janeiro on 13.2.2008.

Article by Ana Carolina F. de Melo Brito published in Revista do Sescon /SP

The article "Corporate responsibility for information on the social balance ", by our partner, Ana Carolina F. de Melo Brito,  has been published in Revista do Sescon /SP (the Union of Accountancy Firms and Firms providing Advisory Services, Expert Witnesses, Information and Research in the State of São Paulo), Issue nº 225, Year XX.  

Roberto Trigueiro Fontes and Juliana Oliveira de Lima Rocha at the swearing in of the new director of the State Judiciary

The swearing in ceremony of the new Director of the State Judiciary of Recife took place on 11.2.2008, in the upper rooms of the Desembargador Rodolfo Aureliano Forum. The occasion was attended by representatives of the Pernambuco branch of the Organization of Brazilian Lawyers (OAB-PE), of the Higher Court of Justice and of the Association of Brazilian Magistrates.

Juliana Oliveira de Lima Rocha is Vice President of the Legislation Committee of the Pernambuco branch of the American Chamber of Commerce (AMCHAM – PE)