ARBITRATION IN BRAZIL IS LESS SAFE NOW - Part 3

I consider Brazil a place that does not offer enough safety for arbitration, specially if confidential information is at stake. And I just got new reasons to think so. 

I have written a lot about it. You may check part 1 and part 2. 

The main reason for that is the Brazilian Revenue Service insistence on requesting full copy of the arbitration records from the arbitration chambers. They claim that arbitration has become a way to dodge taxes. 

Well, just the other day, the main arbitration chambers of Brazil obtained a provisional ruling that exempted them from exhibiting their records to the IRS.  The good news generated a lot of celebration. Many people inside my law firm have requested me to correct myself, and post an article saying how the injustice against arbitration had been corrected. 

The thing is, I was not so sure about doing that. As any lawyer, I hate to stand corrected. And, as every Brazilian, a have a deep distrust of government. 

Turns out I was right to wait. The provisional ruling has been reverted (news here, from Valor website). The Brazilian IRS took the opportunity to take the remaining files from the arbitration chamber, so that any new reversion of the ruling will be, in practice, devoid of meaning for the current files. 

Anyway, I hope the final decision leans toward arbitration.

Also, we have a new arbitration law being discussed. Maybe this absurd will be corrected in the new law. 

For now, please follow the rules I have described in Part 1: 

1) Do not arbitrate in Brazil;
2) If arbitration in Brazil is mandatory for some reason, use the Bar Association arbitration chambers, and use only (or mostly) lawyers as arbitrators;
3) Add an obligation to destroy the arbitration procedure's records.

 

Eike Batista's OGX Austria and OGX Netherlands: left out of bankruptcy, but why do they exist? Also: Brazilian timid take on transnational jurisdiction

READ ALSO:  Has Eike and the "X" group mislead investors? My analysis

Brazilian (not so) timid take on transnational jurisdiction: OGX Austria included in the Brazilian bankruptcy

As you might have seen, OGX Offshore Units have been Left Out of Bankruptcy Case by Brazil Judge. 

The news is very interesting, specially for those who might have obtained collateral from any of the offshore units. 

But I'd like to start from another angle: Why does OGX has subsidiaries in non-oil-producer  European countries? And why the Netherlands and Austria?  (I'm not sure if OGX's subsidiary in the Netherlands is really excluded from Bankruptcy. The reports vary. I will assume it is excluded).

The answer: Non-double taxation agreements (NDTA). Plus, of course, Dutch benevolent corporate tax laws.

Brazil has precious too few NDTA. Over time, the use of Austria and Netherlands turned into the industry's standard. This is because Austria has a good standing in the European financial market. And because the NDTA with Netherlands allows for a tax planning resembling a "Dutch Sandwich". 

Most companies will direct profits to the Netherlands, use them to increase the capital of the Dutch company, then reduce that capital and repatriate the surplus.

Also, Austria is a beautiful place and I think the lawyers that first advised this kind of structured (back in 1975) enjoyed traveling there. 

Back to the bankruptcy procedure: 

Quick tip: The media has been referring to it as a bankruptcy, but it is actually a judicial recovery, similar to a judicial reorganization or to an arrangement with creditors. 

I only had access to an abridged version of the decision, so I can't lay out all the legal basis the judge has adopted. But I can make an educated guest. 

First, the Brazilian law on bankruptcy does not cover foreign subsidiaries specifically. It has some provisions about debts and credits in foreign currency, and about consolidated debts of the group, but does not go so far as including foreign related companies to the procedures. 

Second, Brazilian general procedural rules are very cautious when dealing with extraterritorial competence. In general terms, only companies with a permanent place of business in Brazil (or, at leas, a fixed representative here) can be included in litigation procedures as if they were nationals.
Third, the judge has claimed that including foreign subsidiaries in the Brazilian bankruptcy would amount to piercing the corporate veil.  He didn't elaborate much, but I think his reasoning was that doing so would be unfair to other foreign partners who might participate in the OGX Austria, for example. Also, the arbitrary inclusion of foreign controlled companies could pave the way for the inclusion of foreign investors in the bankruptcy. This would generate and absurd jurisprudence, that could upset markets and make Brazil an undesired place for the world's money. 

I think the Judge was right. Let's see what the court of appeal will say about it. 

Getting money into your Brazilian company - a few common problems

See also: 

Incorporating a Brazilian company, step by step

I have spent the last week struggling with Brazilian banks in order to get ahold of some investments/loans that my clients wired from abroad.

I often receive complaints from the readers, saying that "Brazilian banks have retained their money", or that "It is impossible to get money into Brazil".  More than one have asked me what would be the penalty for bringing the money in a bag (or in a car). They always ask about this last one in a theoretical way, but I sometimes sense that it has gotten way over platonic contemplation.

I know my way around the system, for sure. But, even for me, this kind of operation is always stressful. Everybody in the firms gets double coffee on money week.

The path, in theory, is not so difficult. Basically: