ARBITRATION

STJ ratifies new foreign arbitration award

The Special Court of the STJ has granted an appeal regarding ratification of foreign arbitration rulings in cases involving company takeovers. The Court ruled that the operation in question involves all the entirety of a company’s credit, debt, obligations and contracts among those which the option of an arbitration clause. (SEC nº 894-UY)

 

CIVIL LAW

Being drunk at the wheel annuls life insurance

The Third Bench of the STJ ruled recently that being under the influence of alcohol is now grounds for life insurance policies being declared null and void. The STJ, by overruling a special appeal, enforced the ruling of the São Paulo Court of Justice, which declared an insurance policy null and void on the grounds of drunk driving. (Resp. nº 973.725)

ABRIDGEMENTS

Higher Court of Justice

nº 358
The canceling of the obligation to pay alimony to a child when it reaches the age of majority is subject to a judicial ruling to this effect, even though it is in the court records.

nº 359
It is the responsibility of the organ that keeps records of credit protection to notify a debtor before they are included on the list.

nº 360
The benefits arising from voluntary admission of outstanding tax obligations do not apply in cases where the taxes are discounted on an agreed regular basis but paid in arrears.

LABOUR LAW

A management contract does not occasion subsidiary liability

The Sixth Bench of the TST, in a ruling on interlocutory appeal AIRR-428/2002-055-03-00.4 ruled out the applicability of Abridgement 331, IV, which deals the provision of services by third parties, to management contracts between companies. In its ruling, the Justices made it clear that a management contract of limited duration and with the express authorization of a judge, should not be confused with a contract for provision of services, as the single ruling had decreed.

SDI-2 of the TST, following a procedure that has already been being adopted by the SDI and by most Benches, suspended judgment regarding matters relating to insalubrious conditions until such a time as a ruling is handed down by the STF on Abridgment 228 of the Labor Court.

Refusal to return to work are grounds for loss of labor rights for a member of the CIPA

The 8th Bench of the TST, in RR ruling 425/2005.172.06.00.3, handed down by Justice Maria Cristina Peduzzi, has ruled that the refusal to return to work on the part of a member of the CIPA constitutes grounds for the loss of labor rights. The justice argues that the purpose of the law that established protection for CIPA workers was not to protect the individual worker, but to safeguard public welfare and allow the member of the CIPA to act independently in overseeing safety at work, as laid out in Abridgement 339, II, of the TST.

TAX LAW

Counting of ICMS back-credits as expenses

The STJ permitted, in a ruling of 13.8.2008, unused ICMS credits to be counted as expenses in  company balance sheets. The ruling has a huge impact on companies that have accumulated ICMS credits, as exporters, and are experiencing difficulty in being reimbursed for these by the State Authorities. (EREsp 1011531-SC)

Social Security contributions are not payable on holiday pay

In a ruling of 26.8.2008, the Second Bench of the STJ ruled that social security contributions are not payable on holiday pay, since this is not supposed to be considered as remuneration. Justice Mauro Marques adopted the position taken by the STF regarding conflicting rulings of the STJ. (RESP 719355-SC)

ICMS credit compensation arising from the use of electrical energy and telecommunications

The STJ standardized the precedent regarding the possibility of being compensated for ICMS credits arising from the use of electrical energy and telecommunications. The ruling of the Second Bench in favor of the use this credit was judged to prevail, so long as the energy is consumed as part of the industrial process and the granting of ICMS credit refers to communications services that are provided in the course of the provision of services of the same kind. (EREsp 899485)

Prevalence of the CTN over Protocol

The Second Bench of the STJ ruled that the National Tax Code takes precedence over the Sixth Additional Protocol of Trade Agreement no. 5, which cuts import taxes. The Bench recognized that there was conflict between Article 1 of Decree 99,044/90, which incorporated the said Protocol, and articles 105 and 106 of the CTN, which, in virtue of being a complementary law, would take prevalence over the former. (REsp 640584)

The Engines of Development in the State of Rio Grande do Norte

Carlos Rosemberg Fernandes Júnior (CRJ), a member of staff at our Natal Regional Office, took part in the seminar "The Engines of Development in RN: Power", held in the capital city of the State Rio Grande do Norte, early this month. The event was attended by local business people, the German consul for the Northeast Region of Brazil, the State governor, the Speaker of the Federal Senate, the Minister for Energy and Mines and the President of the FIERN among others.

Trigueiro Fontes at the CCI Arbitration Committee in São Paulo

Elizabeth Malvert Correa (ELI), a member of staff at our São Paulo Regional Unit, took part in the Meeting of the CB Arbitration Commission of the CCI. The speakers for this meeting were Eduardo Silva-Romero (Partner, Dechert LLP - Paris), and Mélanie Meilhac (Director, ICC Dispute Resolution Services - ADR - Expertise - Dispute Boards), who presented on the following topics "Peculiarities of International Arbitration " and "Mediation and DB's".