Publications

: Category: Labor and employment

Brazil is one of the most complex countries to do business and part of the problem stems from Brazilian labor legislation, composed mainly of the Brazilian Labor Law (CLT) and thousands of infralegal regulations that must be observed by companies.

The CLT, from 1943, only underwent substantial legislative changes in 2017, with the Labor Reform. The other updates implemented over the last decades have mostly been due to decrees, ordinances and normative instructions, generating a huge and complex tangle of norms.

Over the years, labor legislation has become unfunctional, with regulations often contradictory to each other. This creates legal uncertainty and high cost to employers, with a direct impact on business competitiveness and economic growth.

In order to provide a better business environment in Brazil, the federal government published, on November 10, Decree No. 10,854/21, which deals with the consolidation of the Infralegal Labor Regulatory Framework.

The intention is to make labor legislation more accessible and transparent, providing greater legal certainty to economic agents.

About 1,000 decrees, ordinances and normative instructions were revised and consolidated in 15 acts, generating great impact on labor relations. The decree addresses regulations involving the following main themes:

Permanent Program for Consolidation, Simplification and Debureaucratization of Infralegal Labor Standards;
Electronic Work Inspection Book - eLIT;
Supervision of standards of protection to work and safety and health at work;
Guidelines for the elaboration and revision of regulatory standards for safety and health at work;
Certificate of approval of personal protective equipment;
Electronic journey control record;
Mediation of collective labor conflicts;
Companies providing services to third parties;
Temporary work;
Thirteenth salary (Christmas Bonus);
Individual and collective relations of rural work;
Transportation vouchers;
Citizen Company Program;
Situation of workers hired or transferred abroad;
Paid weekly rest and salary payment on holidays;
Annual List of Social Information - Rais; and
Worker's Food Program - PAT.

One of the most important aspects of the decree is the establishment of the Permanent Program for the Consolidation, Simplification and Debureaucratization of Infralegal Labor Standards, which aims at:

promoting the reconciliation of labour standards and the right to decent work;
seeking the simplification and debureaucratization of labor standards and the reduction of compliance costs of companies;
promoting legal certainty;
modernizing standards by achieving clear, simple and concise concepts;
improving the business environment; and
competitiveness and efficiency of the public sector.

The decree enters into force, for the most part, 30 days after its publication, that is, on December 11, 2021, with the exception of provisions on the Worker's Food Program, which enter into force within 18 months.

Ordinances regulating provisions of the decree have also been issued.

In the coming weeks, we will launch articles with the objective of exploring, in a simple and practical way, the main changes brought by the decree and its ordinances, and clarify the main impacts for companies.

If you want a specific topic to be covered throughout the series, send your suggestion by clicking here.

All articles released will be available on the Legal Intelligence portal and in this publication, below:

: Category: Infrastructure and energy

After the publication of Law 9.478/97 (Petroleum Law) and with the advance of the granting of exploration and production concession contracts by the National Agency of Petroleum, Natural Gas and Biofuels (ANP), an extremely relevant market for transactions involving the purchase and sale of stake in exploration blocks and oil and natural gas fields opened in Brazil. These transactions involve not only the direct transfer of participation from one company to another, but also increasingly sophisticated project financing operations, with guarantees over the share control of concessionaires and over the emerging rights of these concessions.

Despite the relevance of the theme and the significant values involved, for many years the assignment of participation and the establishment of guarantees on exploration and production concessions was regulated only by a few clauses contained in the concession contracts and, more recently, in the production sharing contracts (both the E&P contracts).

To guide the agents, ANP also published, a few years ago, a basic instruction manual for the organization of documents and conduct of assignment proceedings before the agency, which has been updated periodically (Assignment Manual). For all aspects that were not addressed in the E&P contracts or in the manual, the market depended on the issuance of opinions prepared by the ANP for each specific case that, in its almost entirety, remained inaccessible to other companies.

Although the debate on the drafting of a specific regulation on the subject had existed for a long time, only from 2016 the subject gained traction, after a combination of factors. Among them, the progress in Petrobras' disinvestment process and a succession of crises in the sector that reinforced the need for greater clarity on the right of creditors in relation to the assets of insolvent operators.

In 2019, after three years of public consultations, ANP published Resolution 785/19, which, for the first time, established a legal framework for the assignment of participation and the creation of guarantees on E&P contracts.

This resolution created a level of legal certainty for transactions involving E&P assets and presented several regulatory advances, such as clarification of applicable guarantees on emerging rights and the non-obligation of an assignment process for changes of control that do not involve replacement of parent company guarantee (a topic not yet regulated in many other sectors).

However, as the reality of the facts is inevitably more complex than any regulation is capable of capturing, the practical application of Resolution 785/19 has demonstrated the need to deal with some issues in more detail, especially with regard to:

characterization of the de facto assignment (cessão de fato);
precise definition of rules on joint liability between transferor and transferee after assignment; and
approval of new development plans in the assignment of mature fields.

In this article, we present comments on some of these topics.

I. Assignment in fact

Article 29 of the Petroleum Law provided for the possibility of transferring E&P contracts, always upon prior and express approval by the ANP, which is required to prove that the new operator has the technical requirements necessary to operate the concession. A few years later, ANP published Ordinance 234/03, fixing a fine of R$ 500,000 for any assignment of participation in E&P contracts held without the agency's prior consent – a practice that was called "de facto assignment" – because such assignment could constitute a fraud to the duty to bid and the obligations present in the Petroleum Law.

None of these rules clarified in detail what acts could be understood as a de facto assignment, a point of great relevance, since the assignment processes in the ANP usually take many months to complete and it is in the legitimate interest of buyers or creditors to ensure the good management of assets during this period. Historically, the opinions issued by the ANP attorney's office converged to define that the assignment would actually materialize in the exercise of management power over the assets by a third party before the approval of the ANP.

As of 2015, however, ANP began to expressly include in E&P contracts the prohibition of any kind of influence of the transferee over the operations of the contract prior to the approval of the assignment. That same limitation was replicated in Resolution 785/19, which expressly prohibits buyers or creditors from exerting any kind of influence over the management or operation of the E&P contract (Articles 6 and 22).

The prohibition eventually brought even more uncertainty to the sector, as buyers or funders are reasonably expected to exert some kind of influence on asset management, although indirectly and typically limited to requiring the operator himself to maintain the operation in accordance with the normal course of business and industry best practices.

This type of influence is usually reflected in the fixing of contractual clauses by which the operator voluntarily undertakes to observe certain operating parameters during the transition period, including certain obligations not to do so (negative covenants).

It is quite reasonable, for example, that the seller undertakes not to relinquish the concession area or even not to drill new wells or abandon wells in use during the transition period. It is also reasonable for the parties to define that the making of certain investments will depend on the prior approval of the creditor or buyer.

Whatever the scope, it is not possible to conclude that such agreements imply the exercise of the management of assets by third parties, since:

they involve commitments that the operator voluntarily undertook to observe during the transition period (i.e. the agreement reflects the operator's own will); and
such commitments do not prevent the operator from taking a certain action, only mean that, in case of non-compliance, funders or buyers will have the right to apply certain contractual remedies, such as fines, early termination or indemnification.

In other words, even if an operator contractually undertakes to make or stop making certain operations, those commitments do not represent an obstacle to the operator's management power, since, at the limit, it remains the sole attribution of that operator the decision whether or not to comply with such commitments and, as the case may be, to bear the agreed contractual remedies. Non-compliance does not generate, to any extent, the transfer of the management of operations to buyers or creditors, giving them only the right to apply the agreed contractual remedies.

Resolution 785/19, by generally prohibiting "any influence" of third parties on assets, ultimately creates a criterion that, if applied literally, would significantly prohibit the rights of buyers and funders to ensure that the seller maintains good management and preservation of assets.

It would therefore be of great importance to clarify which types of agreements or actions would actually be covered by the concept of undue influence adopted by Resolution 785/19, recognizing that there is an interest and a legitimate right of buyers and financiers to set, together with the operator, certain operational standards, provided that they are focused on the good management and preservation of assets. The adoption of vague criteria, such as the concept of "influence", ends up increasing the perception of risk and limiting the partnership and financing operations that could contribute to the development of the sector.

II. Joint Liability

The joint liability among partners of an E&P consortium (intra-consortium joint liability) is a widely debated and somewhat well-settled issue. On the other hand, the residual joint liability of parties that have already withdrawn from an E&P contract remains a controversial issue, especially because it lacks clear legal reasoning and greater detail in the regulation of the ANP.

It is important to note that the Petroleum Law deals solely with joint and several liability between companies that are part of an E&P consortium, with no reference to the joint liability of the transferor after the conclusion of the assignment of its participation in an E&P contract. In relation to the assignment procedures, the Petroleum Law only clarifies that the transfer of E&P contracts is allowed "provided that the new concessionaire meets the technical, economic and legal requirements established by the ANP". At no time did the law include any provision or condition requiring the transferor to maintain joint and several liability with the transferee.

The concept of joint liability between transferor and transferee arose only later, in the scope of the assignment clauses of E&P contracts. However, these provisions were rather vague, providing only that, in case of assignment, the “joint and several liability between transferor and transferee would be maintained in accordance with applicable legislation". It happens that, as stated before, there is no applicable provision in the legislation concerning joint liability between assignors and assignees.

Based on the provision of E&P contracts, the ANP began to demand, in the context of the assignment processes of participation in these contracts, that the Term of Assignment (document formalizing the transfer) would include express provision that the transferor would remain jointly and severally responsible with the transferee, without specifying the limits of such solidarity.

Resolution 785/19 represented the first opportunity in which the concept of joint liability between transferor and transferee came to be treated expressly in an infralegal norm. The resolution clarified that such joint liability is limited to obligations "constituted on a date prior to the transfer" and/or "resulting from activities carried out on a date prior to the transfer, even if constituted only at a later time". Although it seems obvious, such clarification has brought some minimal beacon on the limits of joint liability.

Despite the relative progress, Resolution 785/19 still fails to specify the legal basis of this joint and several liability or define fundamental issues to the concept, such as the type of obligations to which it refers, the scope of joint liability and the time limits.

It is not clear, for example, whether the ANP would be obliged to charge the current concessionaire first before recourse to the former concessionaire (order benefit). In a concession that has already had multiple dealers, it is also not informed whether the ANP should follow the chronological order of the assignments or whether it could charge the defaulted obligation of any of the former concessionaires.

Although it is an old theme, this uncertainty has taken even greater relevance with the maturing of the E&P industry in Brazil and with the heating of operations involving the sale of mature fields. Because these fields have a long history of operations, extensive infrastructure, and relevant abandonment liabilities, it is essential that operators interested in selling their stake know exactly what kind of residual liability they may still have after the transfer.

It is unreasonable for concessionaires who have already transferred their participating interest in a field many years ago to continue to monitor this field or maintain indefinite provisioning for as long as the E&P contract remains in effect.

Moreover, considering that the transferee is obliged to go through a strict process of technical, legal and financial qualification in the ANP before assuming the participation in the E&P contract (usually stricter than that originally required of the seller), it is to be questioned what would be the legal justification for the imposition of such joint liability. It is worth remembering that Resolution 785/19 also requires that the E&P contract be fulfilled at the time of assignment, which represents another prior control to reduce the relevance of solidarity.

In practice, more than ensuring the proper fulfillment of the E&P contract, the imposition of unrestricted joint liability of the transferors with the assignees ends up representing a double liability, without foundation in law, with requirements greater than those originally required by the ANP for the signing of E&P contracts.

The Petroleum Law correctly requires only that assignees submit to the same qualification criterion originally imposed for the signing of E&P contracts. there is no legal or logical justification for the former concessionaire to be responsible for that concession after the transfer.

Furthermore, it is important to note that such joint liability is imposed solely in processes of direct assignment of participation in the E&P contract. Thus, a company may choose to sell its stake in a given field through a simple change of control transaction, in which case there would be no change of concessionaire and therefore the former controller would have no remaining liability with respect to that E&P agreement.

Therefore, based on the current legal framework, in particular the Petroleum Law, it is not clear the reasons that justify the maintenance of the provision of joint and several liability between transferor and transferee. If the ANP chooses to maintain this provision, it would be essential that the logical reason becomes clearer and, at least, that basic issues inherent in this concept were clarified, such as:

whereas the joint liability is subject to a benefit of order, so that the liability of former concessionaires is conditional on the absolute default of the current concessionaire; and
that joint liability is subject to the statutes of limitation provided for in the legislation.

III. Development plan

In the context of sale of participating interest in mature fields, considering the sharp decline in production that these fields usually present, it is very important that the buyer has the ability to implement their production recovery project with the maximum possible agility. These projects, commonly called redevelopment, require the approval of a new development plan (PD) by the ANP, in a long process that often requires many months of information exchange between the operator and the agency.

Recognizing the importance of this issue, the Resolution 785/2019 brought an important innovation by predicting that, in processes of assignment of mature fields, the transferee could submit the new PD to the ANP even before the completion of the transfer, to be approved by the agency simultaneously with the assignment process.

Resolution 785/19, however, did not address the difficulty of reconciling the schedule of the two processes (assignment and approval of the PD), which regulatorily have very different approval deadlines. While an assignment process can be completed within 90 days, the approval of a PD can traditionally take more than six months. The divergence ends up limiting the full use of this mechanism, since transferors and assignees cannot ignore the risk of delaying the assignment process if they link it to a PD approval process.

Although it is a remarkable advance brought by Resolution 785/19, the lack of a better detail on the deadlines of this mechanism ends up making its use limited.

To avoid this problem, the simplest alternative would be to provide for a shorter period for the approval of PDs sent in the context of transfer proceedings in order to reconcile the time limit for the two cases.

Another simple solution would be to clarify that, in the use of such a mechanism, the transferee could choose to submit only a proposal for revision of the PD, containing the central elements of the field redevelopment project, and making it clear that the full review would be presented only after the completion of the assignment.

There are precedents in which the ANP has already approved this type of proposal in the context of processes to extend the validity of concessions, setting a deadline for the concessionaire to submit the complete revision of the PD. This alternative would give the assignee greater security that his project will be approved by the ANP, while allowing a faster process.

CLARIFICATION OF THE ANP COULD SOLVE PROBLEM

It is important to note that most of the bases for the recommendations indicated above are already provided for in the regulation. Thus, a broad revision of Resolution 785/19 would not even be necessary. In practice, many of the recommendations could be implemented through the publication of mere clarification, as already adopted by the agency in relation to so many standards.

In the present case, it is emblematic that the Assignment Manual, referred to in the regulation itself, already act in this way, serving as a general regulation of the practical application of Resolution 785/19. Similar manuals can be found in several other ANP standards, such as the local content booklet (cartilha de conteúdo local) and incident reporting manual (manual de comunicação de incidentes). Therefore, the most practical solution would be to expand the Assignment Manual to include additional topics that address the topics mentioned above.

: Category: Institutional

Camila Galvão, Ana Carolina Lourenço, Júlio Nunes, Maria Inácia Carvalho, Marcius Filipe Modesto, Sara Patriarcha, Thiago Percides and Victor Santa Cruz.

The law practice has as its most relevant goal to secure people's rights. It protects social interests and minimizes injustices in order to ensure the full functioning of the Democratic Rule of Law and our justice system. Although we live in a predominantly black country, the law practice takes place in a mostly white environment.

The prevalent white aesthetic induces the black professional to seek fitting in the Eurocentric standards, thus suffering a "whitening", which can lead him to move away from certain spaces, due to the certainty of non-belonging.

In this context, it is worth asking the question: is it possible to exist justice without black protagonism in advocacy? How many black lawyers do we need to do justice?

The gulf between black and white populations in Brazil is latent, and would be no different in the largest law firms. In 2019, CEERT (Center for the Study of Labor Relations and Inequalities), in partnership with the Legal Alliance for Racial Equity and the Getulio Vargas Foundation, listened to 3,624 people from nine of the largest legal offices in São Paulo. The research showed that black people accounted for 1% of the lawyers they hired.

The long-aforedreamed offer of promising opportunities in law still encounters racial barriers, and the chance to occupy prestigious spaces in law is predominantly restricted to white people. Factors such as the lower presence of blacks in renowned universities or even the lack of an English course add up to the skin color to exclude this group from so-called golden opportunities.

Although, currently, the laurels of law are mostly destined to a single portion of society, law has been and has been a huge ally in the fight against racism and the reflections of enslavement that lasted more than 300 years in Brazil.

Historical figures such as Esperança Garcia (1751 - ?), considered by the OAB-PI to Piauí's first lawyer, and Luiz Gama (1830 – 1882), who, with the help of law, managed to free hundreds of enslaved people and is popularly known as one of the greatest abolitionists in Brazil, are examples of resistance and the practice of advocacy by blacks as a tool for protection and guarantee of rights, at a time when the weight of racial inequality was even more brutal than today.

Historical evolution of racism in legal norms – racist and anti-racist laws

From the time when people, due to their color, were treated as private property, or moving goods, until the criminalization of racism, a long normative path was traveled, and the action of social movements and great lawyers, such as the aforementioned Luiz Gama, was paramount to enable change.

In addition to allowing slavery, the order guaranteed and strengthened the structures of power, upgrading to the category of law the privileges of the white population, in norms such as the Free Womb Law (1871), which in article 1 determined that "the children of a slave woman who were born in the Empire since the date of this law, will be considered free", but predicted that "[...] the mother's master will have the option, or to receive compensation from the State or to use the services of the minor up to the age of 21 years complete." The Sexagenarians Act (1885) granted freedom to enslaved people over 60 years of age, although life expectancy at the time was 19 years for the enslaved, in addition to forcing them to indemnify their slaveholders for a period of three years, due to their care.

The Aurea Act (1888), signed just over a hundred years ago, is known as the act that abolished enslavement. But its sanction was not enough for black people to be treated as human beings and subjects of law, since they only transferred these people from the slave quarters directly into poverty. Indeed, from 1888 until today, it is impossible to leave the condition of enslaved if human dignity is and the most basic rights are not guaranteed.

After being transferred from the slave quarters to the streets, the enslaved were imprisoned. The power of the right continued to aim at the systemic maintenance of racism. At the same time, the project of whitening of the population prevailed, founded on the idea that white skin color was associated with progress. Law, as a mirror of society, reflected this image in norms that sought the marginalization of black people. Some examples:

Criminal Code of the Empire of Brazil (1830): it was justified the crime of punishment to enslaved. Although the provisions contrary to the Aurea Act were repealed with the imposition of this rule in 1888, the code considered the insurrection for the freedom of enslaved, begging and loitering a crime. Thus, due to the last two typifications, those who were narrowed and began to be homeless began to be criminalized for their condition.
Decree 528 of June 28, 1890: determined that the entry of people specifically from Asia and Africa depended on the authorization of the National Congress.
Decree 145 of June 11, 1893: determined the arrest of strays, vagrants and capoeiras. Therefore, wandering around the city in idleness and holding cultural demonstrations were also crimes. Loitering is still considered a criminal misdemeanor, pursuant to Articles 13 to 15 of Law 3,688 of 1941.
Decree-law 7.967/1945: it was set out in Article 2 that "it will be addressed, in the admission of immigrants, to the need to preserve and develop, in the ethnic composition of the population, the most convenient characteristics of their European ancestry, as well as the defense of the national worker".

However, if law can serve oppression and racism, it can also be an instrument of justice, its most intrinsic characteristic. The following norms are examples aimed at curbing racial discrimination in Brazil:

Afonso Arinos Law (1951): included "[...] among criminal misdemeanors the practice of acts resulting from prejudices of race or color."
1988 Constitution: it has as its principle the repudiation of racism and has made the crime of racism unineable and unforecable.
Law 9.459/1997: typified racial injury in the Penal Code.
Law 10.639/2003: establishes the guidelines and bases of national education, to include in the official curriculum of the school system the mandatory theme "Afro-Brazilian History and Culture", and provides other measures.
Law 12.288/2010, known as the Statute of Racial Equality: aimed at guaranteeing the black population the realization of equal opportunities, the defense of individual, collective and diffuse ethnic rights and the fight against discrimination and other forms of ethnic intolerance.
Law 12.711/2012, known as the Quota Law: provides, in article 3, that "in each federal institution of higher education, the vacancies that art. 1 of this Law deals with will be filled, by course and shift, by self-declared blacks, browns and indigenous people, and by people with disabilities, in accordance with the legislation, in proportion to the total number of vacancies at least equal to the respective proportion of blacks, indigenous people and people with disabilities in the population of the Federation unit where the institution is located, according to the latest census of the Brazilian Institute of Geography and Statistics Foundation (IBGE)."

Therefore, that anti-racist laws end up reflecting, as a social phenomenon that they are, the social thought of their time. For example, the Quota Law, whose origin dates back to India in the 1930s and which has as beneficiaries the Dalits (considered the lowest caste in the country).

Such a law eventually influenced other countries, such as the United States in the 1970s, when a demand from the black civil rights movement eventually induced universities to adopt quotas as a social affirmative action policy, although there is no national law that requires them to do so.

It means that both social movements and the normative fight against racism are necessary, because they feed back and enable the creation of a context that allows more and more black jurists to move towards racial equity inside and outside the judiciary.

The laws mentioned, however, are not enough for us to have the justice we desire, because the application of justice, often selective, continues to reproduce the racism that exists in our society.

Our role as operators of law

As operators of law, in general, we are an integral part of the legal system, not only as passive recipients, but as instruments capable of bringing restlessness, change and development to the sector, since we are spokespersons for the people we represent and who yearn for justice and a response to their transgressed rights.

It is notorious that advocacy should combat institutionalized racism, both in the judiciary and in society in general. This can be done directly, with proposals for actions and demands aimed at this confrontation, or using theses and foundations of black and anti-racist jurists in actions that do not necessarily aim to combat racism, but whose concepts constructed by such jurists are used at least in the same proportion as those of white jurists.

According to Professor Adilson José Moreira, in his book "What is discrimination", the Brazilian legal system and most doctrinators only recognize the existence of direct discrimination,^[1] since the interpretation of the legal standard carried out by these jurists is intrinsically linked to the understanding that discriminatory acts offend the principle of formal isonomy. By this constitutional commandment centered on the notion of symmetrical justice, in order to configure a discriminatory act rejected by justice, there must be elements of intentionality and arbitrariness.

Justice advances in the recognition of racism and the punishment of direct discrimination. In a recent trial, the Supreme Court (STF) recognized racial injury as a kind of the genre of racism, in HC (habeas corpus) 154,248 in the case in which a black attendant in the Federal District (DF) was called disgusting ignorant and sassy. In this way, crime becomes unprescriptive and indefinable. In addition, ADI 6987 is in the process of being processed on the same issue, and the outcome of the action will be in effect erga omnes, i.e. it can be applied against everyone.

In order to prevent the practice of anti-discriminatory actions and for justice to punish and prevent these practices, it is necessary, however, that the same justice understands that there is more than one type of discrimination. In addition to direct, there is indirect, intergenerational, institutional, structural, intersectional and organizational discrimination.

By understanding and being able to identify the types of discrimination that exist, the law firm will be able to guide its theses and requests in a reasoned manner and, thus, instigate the legal system so that it also understands and applies such reasons in its decisions. This is one of the ways advocacy can contribute to combating racism and racial discrimination and other social groups so marginalized by society.

As operators of law, we can also act in the articulation and representation of groups to combat this system that excludes so many Brazilians. For example, we can cite the racial equality committees of the majority of the OAB's sections, the Legal Alliance for Racial Equity, the black collectives existing in undergraduate courses in legal sciences, among many other groups and entities that come together to promote a more egalitarian society in formal and material terms.

Articulating, influencing, and acting in various ways and in various public and non-public spaces of political, economic, cultural and social power is what makes advocacy a very important factor for change to happen.

The history of justice in Brazil will not be complete if there is no inclusion. For the little, but significant, advance to materialize, several social movements led by both anonymous and the first black lawyers, Esperança Garcia and Luiz Gama, were needed.

If the transformation movement is integrated by an expressive contingent, its strength will obviously be unquestionable. This means that, in order to do justice, it is necessary to have not only lawyers in the professional sense of the word, but also in the context of social movements, in the original Latin, ad.vocare (together with = interceding in favor of), that is, we need as many lawyers as enough to eradicate racism, a struggle to be embraced by all.

^[1] MOREIRA, A.J. What is discrimination. Belo Horizonte-MG: Literacy, 2017. Page 17 and 18.

: Category: Environmental

A few days before the start of the 26th United Nations Conference on Climate Change (COP-26), the Federal Decree No. 10,846/21 established the National Green Growth Program that has in its essence the concern of uniting the application of strategies aimed at sustainable economic development with the generation of social welfare.

Its main objectives are to combine economic growth with the development of sustainable initiatives, improve the management of natural resources, create green jobs, promote forest conservation and biodiversity protection, stimulate the raising of public and private resources for the development of a green economy, reduce greenhouse gas emissions and encourage the development of studies that promote sustainable solutions.

Article 5 of the decree lists 12 guidelines of the program, which seek to encourage the development and adoption of sustainable initiatives and projects capable of strengthening the balance between the environment and economic development, expanding, for example, the creation of smart and sustainable cities and the use of clean and renewable energies.

In order to provide technical and administrative support to the federal government in the implementation of the program, the Interministerial Committee on Climate Change and Green Growth (CIMV) was created, through Decree 10,845/21, on October 25.

Among the committee's competencies, the following stand out: establish specific criteria for meeting the program's objectives; coordinate the actions implemented under the National Green Growth Program with other public policies on the environment, innovation, productivity and competitiveness instituted by the federal public administration; and articulate with the federative entities with the objective of promoting the implementation of actions aimed at the development of the green economy.

The creation of the program and committee demonstrate a very significant evolution of the country in the effort to achieve the Sustainable Development Goals (SDGs) and meet the 2030 Agenda.

: Category: Environmental

Eduardo Ferreira, Aline Barreto Moraes de Castro Philodemos, Camila Argentino, Gabriela Doll Martinelli and Isabel Monteiro de Barros Alfano

That are several expectations about the 26th edition of the Conference of the Parties (Conference of Parties – COP), which will be held between October 31st and November 12th in Glasgow, Scotland.

The COP aims to discuss, review, monitor and implement the United Nations Framework Convention on Climate Change - UNFCCC (Convenção-Quadro das Nações Unidas sobre Mudança Climática).

The UNFCCC is an international treaty signed by 197 countries at the United Nations Conference for the Environment and Development (Conferência das Nações Unidas para o Meio Ambiente e o Desenvolvimento), held in Rio de Janeiro in 1992. The main purposes of the treaty are to strengthen the global response to the threat of climate change, limit the increase in global average temperature and minimize the concentration of greenhouse gases, among other aspects that may impact the planet’s environmental balance.

Expectations emerge mainly from the fact that the convention was not held in 2020, due to the covid-19 pandemic.

In addition, the current edition of the conference is the fifth to be held since the signing of the Paris Agreement (Acordo de Paris), which was signed at the 2015 COP in the French capital. At the time, it was agreed that the signatory parties would present, every five years, an updated planning related to the reduction of greenhouse gas emissions. At this year's meeting, therefore, world leaders will have to communicate their efforts and update their respective countries' commitments to the matter.

Among the topics to be discussed are the carbon market, the reduction of greenhouse gas emissions, annual climate financing, reduction of deforestation on a global scale, updates and compliance with the rules of the Paris Agreement, as well as the establishment of collaborative, adaptation and mitigation measures related to environmental impacts.

Article 6 of the Paris Agreement, which cover some of the instruments for the creation of a global carbon market, is one of the main topics on the agenda. This market remains unregulated, requiring objective and viable definitions by the signatory countries.

Funding to address climate matters will also be in focus. Developed countries have pledged to invest at least $100 billion a year, by 2020, to address the climate crisis and help developing countries to reduce fossil fuel emissions and adapt to the impacts of the crisis. The conference will address such matter and verify the implementation of this measure worldwide.

In addition to these matters, actions are expected to be discussed to allow adaptation to climate change and mitigation of its effects, such as the adoption of low-carbon technologies, incentive to research, adoption of green economy, among others, aiming to reduce the loss of ecosystems and protect communities, especially those already affected by climate change.

There are also expectations on Brazil's performance. Potentially, the country has much to collaborate with environmental preservation, since it has good legal provisions related to the subject, such as the Forest Code, and holds the largest preserved green area in the world. We have 500 million hectares of tropical forests, which means a huge capacity to remove and stock carbon. Our forests, therefore, are essential for the stabilization of the global climate, which makes it essential to progressively implement more initiatives related to environmental preservation.

What is certain is that COP-26 will seek to establish new measures to lead signatory parties to reduce the effects of climate change and its impacts on society.

: Category: Environmental

The Attorney General's Office filed the Direct Action of Unconstitutionality (ADI) 7,008, on September 30, with a request for a restraining order against Law 16.260/16 of the state of São Paulo. State law "authorizes the State Treasury to grant the exploitation of services or the use, in whole or in part, of" in state properties. The ADI 7008 was distributed to the rapporteurship of Minister Roberto Barroso.

According to the petition, São Paulo’s law would have violated constitutional provisions related to the Union's competence to legislate on indigenous peoples and general norms of protection of the environment and indigenous populations, in addition to ignoring the duty of respect for the organization of these populations and the rights of possession and enjoyment of the lands they traditionally occupy. This is because the state standard regulated the granting of ecotourism and commercial logging activities and forest by-products in state conservation units, regardless of environmental licensing and without prior consultation with potentially affected indigenous populations.

The Attorney General's Office requires the granting of a precautionary measure to suspend the effectiveness of Law 16.260/16 and, at the end, to uphold the request for the purpose of declaring:

the obligation of prior environmental licensing for the granting of commercial exploitation of wood and forest by-products in state conservation units, because they are activities with medium potential for environmental impact; and
the need for prior consultation with affected communities as a condition for granting concessions.

In Brazil, traditional and indigenous communities do not have a specific protocol for Free, Prior and Informed Consent (FPIC), as recommended in the Convention of the International Labor Organization (ILO) 169 and to which the Attorney General's Office expresses its mention. In this scenario, the judgment of the ADI, in addition to deciding the constitutionality of the state law, will be an important precedent on the subject, especially in relation to the understanding of the ministers of the Supreme Court on whether the specific protocol, in fact, is necessary to meet the convention or if, in the case of environmental licensing, the public hearing could provide such formality.

Publications

I. Assignment in fact

II. Joint Liability

III. Development plan

CLARIFICATION OF THE ANP COULD SOLVE PROBLEM

Subcategories