Post by account_disabled on Mar 14, 2024 9:34:23 GMT 5.5
The existence of an arbitration clause does not affect the enforceability of unpaid credit and does not prevent the request for judicial bankruptcy, provided for in article 94, item I, of the Reorganization and Bankruptcy Law. For the 4th Panel of the Superior Court of Justice, the creditor's right can be exercised upon provocation by the Court, as arbitration does not have powers of an executive nature.
The arbitration clause, also called an arbitration B2B Lead clause, is one in which the parties to a contract establish that disputes will be resolved through arbitration, and not in court.
But, according to the rapporteur, Minister Raul Araújo, although the arbitration clause has binding force, it does not affect the enforceability of the debt security. Nor does it prevent the triggering of bankruptcy at the request of creditors. For Minister Raul, the option for arbitration is not absolute and does not have the power to definitively remove state jurisdiction.
“In this specific case, despite the contractual provision for an arbitration clause, there are unfulfilled executive titles, consisting of protested duplicates and accompanied by documents to prove the effective provision of services, which gives rise to forced execution or bankruptcy filing, on the grounds in article 94, I, of Law 11,101/05, which has the nature of collective execution”, he stated.
The minister also stated that the bankruptcy avoidance deposit, as provided for in article 98, sole paragraph, of the Bankruptcy Law, does not authorize the end of the bankruptcy process, as it becomes a collection action and follows the common executive route, the which would be unfeasible in arbitration.
“Once the bankruptcy petition is filed due to unjustified unpunctuality of titles that exceed the minimum level provided for by law (article 94, I, of Law 11,101/05), due to an absolute legal presumption, the allegation of shortcutting the execution/collection process via the go bankrupt,” he added.
Late bills
The case analyzed by the STJ dealt with a bankruptcy request filed by a metallurgical company in relation to Volkswagen do Brasil. The argument is that the automaker owes R$617,000 to the metallurgy company, a debt represented by several protested bills, without the defendant having paid it off.
Volkswagen claimed that the parties elected an arbitration forum and, on the merits, claimed to have paid R$425,800 in compensation. The defendant stated that she had made an estoppel deposit in the files.
The arbitration clause, also called an arbitration B2B Lead clause, is one in which the parties to a contract establish that disputes will be resolved through arbitration, and not in court.
But, according to the rapporteur, Minister Raul Araújo, although the arbitration clause has binding force, it does not affect the enforceability of the debt security. Nor does it prevent the triggering of bankruptcy at the request of creditors. For Minister Raul, the option for arbitration is not absolute and does not have the power to definitively remove state jurisdiction.
“In this specific case, despite the contractual provision for an arbitration clause, there are unfulfilled executive titles, consisting of protested duplicates and accompanied by documents to prove the effective provision of services, which gives rise to forced execution or bankruptcy filing, on the grounds in article 94, I, of Law 11,101/05, which has the nature of collective execution”, he stated.
The minister also stated that the bankruptcy avoidance deposit, as provided for in article 98, sole paragraph, of the Bankruptcy Law, does not authorize the end of the bankruptcy process, as it becomes a collection action and follows the common executive route, the which would be unfeasible in arbitration.
“Once the bankruptcy petition is filed due to unjustified unpunctuality of titles that exceed the minimum level provided for by law (article 94, I, of Law 11,101/05), due to an absolute legal presumption, the allegation of shortcutting the execution/collection process via the go bankrupt,” he added.
Late bills
The case analyzed by the STJ dealt with a bankruptcy request filed by a metallurgical company in relation to Volkswagen do Brasil. The argument is that the automaker owes R$617,000 to the metallurgy company, a debt represented by several protested bills, without the defendant having paid it off.
Volkswagen claimed that the parties elected an arbitration forum and, on the merits, claimed to have paid R$425,800 in compensation. The defendant stated that she had made an estoppel deposit in the files.