BRAZIL Trends and Developments Contributed by: Marcelo Lucidi, Henrique Forssell, Octaviano Duarte and André Marcassa, Duarte Forssell Advogados
• any transfer, encumbrance or disposal of any non-current assets of the debtor shall be considered “ineffective” if made without the court’s authorisation; and • all time-limitations in connection with all judicial executions against the debtor are suspended, subject to the provisions of the Bankruptcy Law. Furthermore, where necessary to protect the assets of the debtor or the interests of the credi - tors, the Brazilian court may, at the request of the foreign representative, grant any appropriate relief, including: • avoidance of any act of disposal of the debtor’s non-current assets made without court approval; • the examination of witnesses, the produc - tion of evidence or the delivery of information concerning the debtor’s assets, affairs, rights, obligations or liabilities; • entrusting the administration or realisation of all or part of the debtor’s assets located in Brazil to the foreign representative; and • granting any additional relief that may be necessary under the laws of Brazil. Recognition further allows the foreign represent - ative to avoid fraudulent transactions by bringing the legal actions referred to in Articles 129 and 130 of the Brazilian Bankruptcy Law. Article 130 of the Brazilian Bankruptcy Law refers to a revocatory action, which can be brought by any creditor to render a past transaction inef - fective. This action is predicated on fraudulent behaviour of the debtor and the counterparty of the transaction, resulting in losses to the bank - ruptcy estate.
An action under Article 129 of the Brazilian Bankruptcy Law is grounded on acts considered fraudulent per se regardless of the parties’ inten - tion. Examples include: • payment of debts before the maturity date within the look-back period; • payment of debts in conditions not contractu - ally agreed, also within the look-back period; and • performance of gratuitous acts two years The new legislation also introduced additional rules concerning the co-ordination of multiple insolvency proceedings, which are not part of the UNCITRAL Model Law. According to Arti - cle 167-V of the Brazilian Bankruptcy Law, the bankruptcy court responsible for non-main for - eign proceedings must provide the main court before the bankruptcy. Distribution of assets with at least the following information: • value of assets collected and liabilities; • value of credits admitted and their classifica - tion; • classification, according to national law, of creditors not domiciled or based in countries holding credits subject to foreign law; • list of ongoing legal actions to which the bankrupt is a party, as plaintiff, defendant or interested party; and • information on the end of the liquidation and the balance thereof, as well as any remaining assets. The legislation further provides that no assets or proceeds remaining from the liquidation will be delivered to the debtor if there are still unsatisfied liabilities in any other insolvency proceedings. In addition, the legislation provides that the main insolvency proceeding can only be finalised after
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