NOTÍCIAS
Litigation
Superior Court of Justice determines that arbitration clause in the Association Charter subjects the future homeowners to arbitration
The Third Group of the Superior Court of Justice, recently ruled at the trial of the Special Appeal 1.733.370 / GO, that the new homeowners are bound to the effects of an arbitration clause provided in the Association Charter, even without their express consent.
The debate was related to the alleged violation of article 4 of Law 9.307/1996 (Arbitration Law), which sets forth the requirements of the arbitration clause validity in standard contracts, due to the extension of an arbitration clause provided in the Association Charter to the new homeowner, which did not participate of its constitution. According to such new homeowner, as he did not participate in the institution of the Association Charter, the effects of the arbitral clause could not be enforceable against him, since there would be a requirement for explicit and specific consent from the new homeowners for the arbitration clause to bound them. Thus, by acquiring the building after the institution of the Association Charter, the new homeowner claimed that his constitutional right to access to justice would be violated should the effects of the arbitration clause be extended to him.
Minister Moura Ribeiro gave the winner vote in opposition to the Reporting Minister Ricardo Villas Boas Cueva. According to him, the matter regulated in the Association Charter does not have a contractual nature, but rather has a normative institutional nature. For this reason, the rules set forth in the Association Charter, if regularly voted and approved, do not depend on the express consent of the new homeowners to be valid and enforceable. According to the Minister, due to the normative institutional nature of the Association Charter and the possibility of consulting its content before acquiring the unit of the Condominium, the new owners are subject to what was established therein, including the terms of the arbitration clause in it inserted.
On the other hand, the Reporting Minister position argued that even though the Association Charter is public, since it is registered before the registry of real estate, the arbitration clause could not be extended to new homeowners without prior, express and specific consent. According to the Reporting Minister, extending the arbitration clause in this case would be a way of limiting the constitutionally granted right of access to justice, which also violates the principle of non-obviation of Judiciary jurisdiction.
The Third Group then decided by majority to dismiss the special appeal an uphold the arbitration clause provided in Association Charter, by voting with Minister Moura Ribeiro, Ministers Marco Aurélio Bellize, Nancy Andrighi and Paulo de Tarso Sanseverino, all dissenting the opinion of the Reporting Minister Ricardo Villas Boas Cueva.
Lifesciences
STF declares unconstitutionality of São Paulo’s State Law that requires pharmacists in the staff of entities that transport drugs
In the judgement of the Direct Unconstitutionality Action No. 5352, Brazilian Supreme Court confirmed the injunction granted to declare the unconstitutionality of São Paulo’s State Law No. 15.626/2014.
The abovementioned State Law made mandatory a technical responsible pharmacist in the staff of entities that transport drugs and active pharmaceutical ingredients in São Paulo State.
In the judgement it was recognized that the State Law exceeded the limits instituted by the federal normative on the matter, as well as violated the constitutional disposition on the fundamental right to the freedom of employment, occupation or profession to everyone legally qualified to its development.
Administrative and Public Law
Federal Law with debureaucratization policies of administrative acts and procedures is sanctioned
It was published the Federal Law No. 13.726/2018 with the objective of rationalization and debureaucratization of administrative acts and procedures. Such Law affirms that is necessary the reduction or simplification of formalities and unnecessary or superposed measures that do not compensate in relation to fraud prevention, not only to the economic cost but also to the social cost for both parties (public-private).
The measures adopted consist in the waiver of demand of signature certification and authentication of document copy, that now can be authenticated by the own administrative agent; personal document presentation, that can be replaced by a copy authenticated by the own agent; birth certificate, that can be replaced by an equivalent document; electoral card, except for voting or candidacy registration; and recognized firm authentication for child trips, provided that the parents are present in boarding.
The Law also veto the requirement of proof related to fact already proven by the presentation of other document, and the presentation of certificate or document issued by organ of entity of the same power.
Aiming to estimulate and recognize simplification projects, programs and practices, the Law instituted the Seal of Debureaucratization and Simplification, that will be conceded in compliance to the criteria of rationalization of administrative processes, unnecessary formalities elimination, social gains referring to the measures, waiting time reduction and the adoption of technologies or organization forms that can be replicated by other spheres of public administration.
We understand that its provisions will be very useful during the Public Procurement Processes and other administrative procedures for obtaining licenses with the Public Administration.
The Law will come into force on November 23 of 2018.
President of the Supreme Court discuss the release of paralyzed works with Auditors Courts
The President of the Supreme Court assembled with the ministers of Federal Auditors Court and presidents of the State’s Auditors Court to discuss about the essential works to the country development and to boost economic growth paralyzed by judicial matters.
The agenda of the meeting was about the necessity of solutions to avoid the penalization of the society for not benefiting of essential works for it’s development, mainly in health, education and public security areas, but can be extended to the mobility, energy, sanitation and communication areas – as oil and gas; generation, transmission and distribution of electricity; roads, ports, airports and railways; and water and sewage services, pillars of the big umbrella named “infrastructure”.
Environmental Law
Supreme Court judges unconstitutional State Law that dispensed from the environmental licensing process the activities of agriculture, pastures, silviculture and animal breeding
The Federal Supreme Court declared the unconstitutionality of the certain provisions of Law No. 2,713/2013, of the State of Tocantins, which exempted from the environmental licensing process the activities of agriculture, pastures, silviculture and animal breeding.
The Court’s entry of judgment was based on the finding of contradiction of the mentioned State Law with the National Environmental Policy. The latter requires the environmental licensing of those activities since considered them as potentially polluting.
For Supreme Court the mentioned State Law infringes the Constitution by legislating on general norms related to environmental protection.
Supreme Court considers unconstitutional the State Permission for construction in permanent protection areas aimed to leisure
Federal Supreme Court considered unconstitutionality a provision of a Law of the State of Tocantins which allowed the construction of recreational buildings with maximum area of 190m² in Permanent Protection Areas (“APP”).
The Court understood that the law of State of Tocantins contradicted the National Forest Code by providing less protection to APP’s in comparison to the national law, exceeding its supplementary competence provided by Constitution.
It was also recognized the material unconstitutionality of the dispositive of such State law, justifying that there is no reasonableness or proportionality in the authorization of recreational buildings construction in APP without observing the environmental consequences. In an APP equal or smaller than 190m², the construction could eliminate completely the preserved area, putting the private recreation right above the environment, whose titularity is collective.
New Precedent from Superior Court of Justice reverse the lien of proof in environment degradation legal court suits
Supreme Court of Justice (“STJ”) was approved unanimously the Precedent No. 618, stating that “The reversal of the burden of proof applies to the environmental degradation lawsuit”.
Already for some time existed an understanding in the STJ in the sense that the collective procedural microsystem applies to the protection of collective rights. Within this microsystem, the Collective Actions of the Consumer Defense Code are subject to the possibility of reversal of the burden of proof, and it should be noted that the same provision was under discussion if it should be applied to environmental degradation actions, even though there was no express provision in this line.
Therefore, STJ has now established its solid position that environmental degradation lawsuits are also subject to the reversal of the burden of proof due to the collective microsystem and the protection of collective rights.
However, the text of the Precedent contains generic wording and may lead to legal uncertainty. Such Precedent needs improvement, especially to make it clear whether the reversal is mandatory or optional and, if it is optional, in which case it may be declared.
The legal community militant in Environmental Law, of which the KLA participates, maintains concern and, constructively, initiates the process of suggestion of improvements to avoid the occurrence of arbitrariness.
Tax Law
Federal Revenue establishes understanding on documents for foreign tax purposes
Answer to Advance Tax Ruling Request No. 155, published on September 26, established the understanding of the Federal Revenue regarding the documents accepted as evidence for foreign tax credit purposes.
According to the Federal Revenue, to make proof of the payment of the income tax abroad, the taxpayers must provide official evidence, recognized by the Collecting Agency of the country where the payment took place, and also by the Brazilian Consulate. Specifically when the legislation determines withholding at source, the recognition by the official entities is waived.
If the tax is originally collected to the signatory countries of the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, the recognition of the document by the Brazilian Consulate may be replaced by the apostille, pursuant to Articles 3 to 6 of the Convention, promulgated by Decree No. 8.660, of January 29, 2016.
Federal Revenue understands that debt relief should be taxed by PIS/COFINS
Through Answer to Advance Tax Ruling Request No. 176, published on September 27, 2018, the Federal Revenue understood that the amounts resulting from discounts related to partial debt relief of loans should be taxed by PIS/COFINS (under the non-cumulative system), on the tax rate of 0.65% for PIS and 4% for COFINS, since considered financial income.
This understanding is favorable to the tax payers, since the tax rate usually applied in such cases are higher than 4.65%.
Higher Chamber of Tax Appeals determines that the disposal of equity holding of foreign subsidiary should be taxed by the Brazilian controller
The Higher Chamber of Tax Appeals, when analyzing a case involving disposal of equity holding of foreign subsidiary, has rendered an understanding in the sense that such transaction results in the taxation, by the controller, of the subsidiary’s. The judgment was decided by casting vote of the Chairman.
In the understanding of four of the eight members of the collegiate, the disposal would benefit the Brazilian controller, since it would represent disposal of profit, as referred in art. 1, paragraph 2, b, item 4, of Law 9,532/97. The Council’s members also understood that it was not relevant for matter if the profit had remained in the foreign subsidiary, once the controller would have been affected by equity equivalence method.
The decision is final in the administrative sphere, but there is still room for discussion of the matter in the Judiciary.
Published decree regulating amnesty program in the State of Rio De Janeiro
Decree 46.453, published in the Official Gazette of the State of Rio de Janeiro on October 11, 2018, regulated Complementary Law No. 182/18, which established the possibility of installment and reduction of fines and interest regarding ICMS and IPVA debts, as well as fines imposed by the State Court of Audit.
The reductions may be applied to the remaining values of debts already included in previous installments, ICMS paid under the tax substitution system, fines applied for noncompliance with ancillary obligations and ICMS amounts destined to the State Fund for Combating Poverty (Fundo Estadual de Combate à Pobreza), but not to the amounts destined to the State Fiscal Balance Fund (Fundo Estadual de Equilibro Fiscal).
For ICMS debits, the Decree provides the possibility of 50% interest reduction and 85% of fine reduction if the payment is made at once. There is also the possibility of payment in 15, 30 or 60 monthly installments, with smaller reductions. For debits related to isolated fines, the reductions are of 50% for interests and 70% for fines, if payment is made in one installment only, but there is also the possibility of payment in 15, 30 or 60 installments, with smaller reductions.
Taxpayers may join the program between 01/11/2018 and 11/30/2018.
