BRAZIL Trends and Developments Contributed by: Thaís Vasconcellos de Sá, Bermudes Advogados
lapping or sometimes conflicting requests (and judicial orders as a result). These proceedings will also most likely involve requests for attach- ment and/or seizure of the company’s assets as judicial guarantees for the future reparation of the impacts and damages caused (or expected to be caused). During the first days of the crisis, these types of requests by judicial institutions or other governmental authorities in Brazil are usually granted, due to the inherent uncertainty around the extent of the damages and/or the possibility of the company surviving the crisis and being in a position to properly repair or com- pensate for these impacts and damages in the future. There are procedural paths that a company must take to consolidate proceedings before a court with jurisdiction to rule on the case, reducing complexity and the risks of conflicting judicial orders. However, that can take a few days or weeks. During that period, the company may face an avalanche of harmful decisions and attachment orders that can jeoperdise or com- pletely impair its ability to properly respond to the crisis. A company must be well advised in order to defend itself efficiently and effectively against all those demands and orders from mul- tiple authorities and before numerous courts at the same time (while also making the necessary efforts to respond to the crisis). Multiple-Jurisdiction Crises Crisis management experts in Brazil are up to the task, but have also been kept on their toes by the latest global trends in the legal market: other jurisdictions have started to take interest in mat- ters that, at their origin, only pertain to the Bra- zilian judiciary. The globalisation of group enter- prises has led to them having presence outside Brazil, either through opening up their capital on the New York or London exchanges or by
establishing subsidiaries abroad for commercial, financial or tax purposes. This movement was natural and necessary for Brazilian companies to compete adequately with their counterparts in their respective global sectors. However, their presence abroad has made these companies the targets of attempts by special- ised law firms to bring claims for inherently Bra- zilian crisis-related matters before foreign courts. Over the years, a publicly traded company with a register before a US exchange could expect to be subject to investors’ class actions. None- theless, in the past few years, these have been surpassed by other types of collective proceed- ings before different jurisdictions, particularly in Europe. So far, these attempts have been well received by the courts, which now understand that they need not give much thought to whether or how their decision will be accepted and recognised by the Brazilian judiciary, as long as the com- pany’s presence in their jurisdiction is sufficient for the decision to be effective. Courts are not only willing to accept jurisdiction but have faced a movement of clear “forum offering” , with for - eign jurisdictions promoting the benefits of their respective legal systems and instruments over Brazilian matters. This movement has become more common every day, and is also a result of multiple new proceedings being brought by these same specialised law firms, enabled by their litigation funders. Crisis management in Brazil has become global, and Brazilian practitioners of crisis management are again up to the task. The advice for compa- nies that eventually face a crisis in Brazil, or one with effects that should be dealt with in Brazil- ian jurisdiction, is this: do not go into the bat- tle unarmed, and do not underestimate a crisis
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