Publications

Category: Environmental

Executive Order (MP, in its abbreviation in Portuguese) No. 884/19, converted into law last October 17th, amended the Forest Code (Law No. 12,651/2012) so as to provide that registration in the Rural Environmental Registry (CAR) shall be mandatory for all rural properties and holdings.

As a result of this conversion into law, Federal Law No. 13,887/19 maintained the amendment brought in by MP 884 to the third paragraph of article 29 of the Forest Code, reinforcing that registration in the CAR, besides being mandatory, has an indefinite term.

The cut-off date for enrolling in the CAR was being extended by various regulatory changes since the register was established. The period initially established in the Forest Code for adhesion was one year as of the approval of the code, with possible extension for an equal period.

With the enactment of Law No. 13,295/16, the deadline for enrollment in the CAR was changed and the deadline of December 31, 2017, was set. As provided for in the initial wording of the Forest Code, Law No. 13,295/16 also allowed extension of the deadline for another year and provided for enrollment in the CAR by December 31, 2018.

After the deadline established by Law No. 13,294/16, Executive Order No. 867/18, approved on December 31, 2018, postponed registration in the CAR until December 31 of this year. However, the MP was not converted into law, which gave rise to questions related to the validity of the extension.

After various debates, MP 884 was approved on June 14th of this year, aiming to make the CAR a more effective and permanent tool for management of rural farms through establishing a system open to updates and new enrollments at any time. The MP extinguished the deadline for registration in the CAR, which was formalized in Law No. 13,887/19.

That same law included paragraph 4 in article 29 of the Forest Code to establish that landowners and owners of rural properties that enroll in the CAR by December 31, 2020, will be entitled to adhere to the Environmental Regularization Program (PRA). Established by article 59 of the Forest Code, the PRA must be implemented by the Federal Government, the states, and the Federal District. The objective is to adapt consolidated rural areas in permanent preservation areas (PPAs) and legal reserves to partial restoration parameters established in the Forest Code.

Since the original publication of the Forest Code, it was provided that enrollment in the CAR is a basic requirement for the adhesion to the PRA by owners and holders of rural property.

New deadline for adhesion to the PRA

Considering the new provision and the determination that CAR members will be entitled to adhere to the PRA until December 31, 2020, it was also necessary to amend article 59 of the Forest Code. The new wording of the provision establishes that owners and holders of rural properties may adhere to the PRA within two years from the registration of the rural property in the CAR, subject to the provisions of paragraph 4 of article 29. Thus, those who register with the CAR on the last day of the deadline (December 31, 2020) will have up to December 31, 2022, to apply to adhere to the PRA.

This adhesion, in addition to ensuring the regularization of rural areas that are currently in disagreement with the provisions of the Forest Code, will suspend any administrative sanction arising from this situation during the implementation of the measures proposed. When the measures are fulfilled, fines for irregular interventions in APP and legal reserves will be converted into services aimed at environmental preservation and recovery, which is beneficial to all.

The constitutionality of the PRA was recognized by the Federal Supreme Court in the judgment of direct suits of unconstitutionality of No. 4,901, 4,902, 4,903, and 4,937 and Declaratory Action No. 42/19, the judgment of which was published on August 12th of this year. With the new period for adhesion to the PRA and confirmation of its constitutionality, it is expected that the environmental agencies will actually work to implement these programs in order to allow effective adhesion of owners and holders of rural property to alternatives in order to regularize the environmental situation of rural areas.

Category: Labor and employment

As part of our series of articles on the changes implemented by Executive Order 905/19, we highlight the following points that may affect trade union organization and relations.

Negotiations for profit sharing

The waiver of participation of representatives of trade unions in negotiations relating to profit sharing (PLR) made by commission may generate important effects for labor relations. The amendment was specifically analyzed in another article on this portal and will take effect only after an act by the Ministry of Economy.

Since the approval of Law No. 10,101/2000, which deals with the issue, trade union participation in PLR negotiations was mandatory. Employers were forced to deal with intervention by the trade union often detached from corporate reality and misaligned with the workers' own desires. In addition, there were not rare cases of trade unions that refused to participate in the negotiation or made the signing off on a PLR program conditioned on approval of a contribution to the trade union.

In the manner proposed by MP 905, employers interested in implementing a PLR program should: a) coordinate the formation of a joint committee between representatives of the company and employees, who are to be appointed in an election process; and b) promote committee negotiation meetings.

Thus, if this aspect of MP 905 is approved, the negotiation process will be conducted directly with employees, who generally know the reality of the company and have a better perception of the proposed criteria and goals for the PLR program. Once approved and signed off on by the committee, the PLR program will be in place.

Union organization

In relation to Brazilian trade union organization, paragraphs or subsections of articles 543, 545, and 553 of the CLT were amended in order to refer to new fines for violations of labor law (article 634-A of the CLT, also proposed by MP 905).

Previously, the fine in the event of violation of principles related to “Chapter I - The Institution of Unions” of Title V of the CLT could vary between R$ 2.12 and R$ 106.41. 90 days after the publication of MP 905, the amount will be from R$ 1,000 to R$ 100,000. The grading of violations of this article between light and very serious and the amounts applicable will be defined by the Federal Executive in due course.

Among the rules contained in this chapter,^[1] those cited by the very articles 543, 545, and 553 of the CLT stand out:

• Article 543: Prohibition on companies seeking to prevent an employee from joining a trade union, organizing a professional or trade union association, or exercising rights inherent to the condition of membership in a trade union.
• Article 545: Obligation to transfer and not retain trade union contributions discounted by employers from the salaries of their employees.
• Article 553, letter “f”: refers to the sole paragraph of article 529, which imposes on trade union members the obligation to vote in union elections.

The proposed changes on this topic are in line with the government's intent to approve a trade union reform. The increase in the amount of the fine may help to prevent acts contrary to full freedom of association, the essence of the proposal defended by the government base.

We will cover the main changes of MP 905 in the next articles in this series. Click here to read prior analyses.

^[1] Part of the legal scholarship argues that some of the articles in this chapter were not accepted by the Federal Constitution of 1988.

Category: Labor and employment

Companies no longer need to be inspected by the competent labor authority in order to begin their operations and/or undertake structural changes. Executive Order No. 905/19 (MP 905), which instituted the Green and Yellow Employment Contract, repealed article 160 the Consolidated Labor Laws (CLT), which contained rules relating to the inspection of companies before they may start operations.

Effective since November 12, the date of publication of MP 905, the change reduces bureaucracy and optimizes the process of business operation, especially new establishments.

Article 160 of the CLT mandated that no new establishments could begin operations without a prior inspection and approval of their premises by the regional occupational safety and health authority responsible for the matter. The provision also established that any substantial modification to the facilities, including equipment, should be reported to the Regional Labor Office for a new inspection to be conducted.

Accordingly, establishments no longer need to be inspected by the competent labor authority in order to begin their activities and/or undertake structural changes. This reduces bureaucracy and optimizes the process of business operation, especially new establishments.

Another provision that has been modified is article 161 of the CLT, which deals with the stop work orders and work halt orders for activities, establishments, sectors, machinery, or equipment.

Although unnecessarily, the MP included in article 161 of the CLT assigning the topic (stop work orders and halt work orders) to regulations by the Special Bureau of Social Security and Labor of the Ministry of Economy (SEPRT). Currently, the issue is addressed, within the scope of SEPRT, by Regulatory Standard No. 3 (which establishes the guidelines for finding serious and imminent risk and objective technical requirements for stop work and work halt orders) and by SEPRT Ordinance No. 1,069/19 (which regulates stop work and halt work orders).

Another amendment of the MP was the modification of paragraph 2 so as to eliminate the provision that allowed labor inspection agents or trade union entities to request stop work and halt work orders. A request is not to be confused with the possibility of actually issuing stop work and halt work orders; SEPRT Ordinance No. 1.069/19 expressly authorizes labor inspection agents to do so.

The MP also established a deadline (until then nonexistent in the CLT) of five business days, counted from the filing, for a review of appeals filed against stop work and halt work orders. SEPRT Ordinance No. 1.069/19 already established various deadlines to be complied with in proceedings relating to stop work and halt work orders, including a longer period for review of the appeal. There are no sanctions in the law or the ordinance for non-compliance with the deadlines, but non-compliance may be used as an argument for judicial measures to challenge the stop work and halt work orders.

The changes in article 161 of the CLT regarding stop work and halt work orders come into force only 90 days after the publication of MP 905.

We will cover the main changes of MP 905 in the next articles in this series. Click here to read our other analyses on the topic.

Category: Litigation

With the consolidation of the use of arbitration by the Federal Government as an alternative, and often preferable, means for the Judiciary to settle disputes, several normative acts have been issued over the last years to recognize and regulate the use of this mechanism to settle conflicts relating to alienable property rights.

Law No. 13,129/15 amended the Arbitration Law (Law No. 9,307/96) to include an express provision that "[the] direct and indirect public administration may use arbitration to resolve disputes relating to alienable property rights" in the Arbitration Law (paragraph 1 of article 1). Similarly, the Ports Law (Law No. 12,815/13) already provided for the use of arbitration to settle disputes with the Federal Government regarding the debts of concessionaires, lessees, permittees, and port operators, while Law No. 10,233/01 already provided for the possibility of including arbitration clauses in water and land transport contracts entered into with ANTT and Antaq. More recently, the States of Rio de Janeiro and São Paulo also regulated the use of arbitration in contracts signed by the state direct and indirect Public Administration and its instrumentalities (through the Decrees No. 46,245/18  and No. 64,356/19, respectively).

In this context, on September 20, 2019, Decree No. 10,025 (the "Decree") was issued,  which brings important news regarding the use of arbitration to resolve conflicts involving, on the one hand, the Federal Government or entities of the Federal Public Administration and, on the other, concessionaires, sub-concessionaires, permittees, lessees, authorizees, or operators in the port, road, rail, waterway, and airport sectors.

The Decree entered into force on the date of its publication, on September 23, 2019, and will apply, as a rule, only to future arbitrations arising from arbitration commitments entered into while it is in force. However, the legislature has included an express provision that existing administrative contracts may be amended in order to include arbitration clauses, or parties may enter into arbitration commitments in order to submit existing disputes to arbitration in the absence of an arbitration clause (article 5, paragraph 3, and article 6, head paragraph, of the Decree). In such cases, the Decree provides that the Public Administration must give preference to arbitration: (i) "in the cases in which the dispute is based on eminently technical issues"; and (ii) "whenever delay in the final settlement of the dispute may cause damage to the adequate provision of the service or operation of the infrastructure, or inhibit investments considered to be priorities" (subsections I and II of paragrah 1 of article 6).

Pursuant to the Arbitration Law, the Decree recognizes that only disputes over alienable property rights may be submitted to arbitration. But the Decree went beyond and, through the sole paragraph of its article 2, the legislature sought to present an exemplary list of alienable property rights that may be subject to arbitration, namely: (i) "questions related to the restoration of the economic and financial balance of contracts"; (ii) "calculation of compensation resulting from the extinction or transfer of partnership contracts"; and (iii) "default in contractual obligations by any of the parties, including the application of penalties and the calculation thereof."

In addition to encouraging the use of arbitration, the Decree also provides that parties to administrative contracts may use other alternative dispute resolution methods in order to resolve their disputes, such as direct negotiation with the Public Administration and the submission of disputes to the specialized chamber for prevention and administrative resolution of conflicts of the Federal Attorney-General’s Office (the creation of which is provided for in subsection II of the head paragraph of article 32 of Law No. 13,140/15).

In its articles 3 to 7, the Decree regulates some procedural issues that must be observed in the arbitrations governed by it and guides the drafting of arbitration commitments. Among the rules listed in the Decree, we highlight that:

• the chambers chosen must be accredited by the Federal Attorney-General’s Office (AGU);^[1]
• the law applicable to the merits of the dispute must be Brazilian law;
• the arbitrations will be based in the Brazilian territory;
• as a rule, information regarding the arbitrations will be public (except to preserve industrial or commercial secrecy and confidential information under the law) and the arbitration chambers will be required to disclose information regarding the arbitrations, unless otherwise agreed upon by the parties; and
• a minimum period of 60 days for the presentation of a defense and a maximum period of 24 months for the presentation of the arbitral award (extendable once for an equal period) must be observed.

By regulating the use of arbitration to settle disputes related to administrative contracts within various infrastructure sectors, as well as helping to unburden the Judiciary, the legislature gives contracting parties greater legal certainty regarding arbitration against the Federal Government and consolidates a growing confidence placed in the institution of arbitration, especially as a faster and more specialized means of resolving complex and predominantly technical conflicts. Thus, the measure has the potential to encourage investment in Brazil and contracts with the Federal Government.

However, individuals wishing to enter into contracts with the Public Administration should note that the costs of the arbitrations governed by Decree No. 10,025/19, including the costs of commencing arbitration, the fees of arbitrators, and the costs associated with the production of expert evidence, must always be advanced by the service provider (as provided for in the head paragraph and paragraph 4 of article 9) and may only be reallocated after the final decision by the arbitral tribunal. This rule may discourage or even make it impossible for private parties to initiate arbitration proceedings, especially in the case of companies with low liquidity or that are insolvent. The financial burden on the service provider is aggravated by the fact that the payment of any monetary obligation by the Federal Government or its instrumentalities will, as a rule, be done via a court-issued registered warrant (precatório) or petty claim (head paragraph of article 15).

To circumvent the problem of delays associated with the payment by the Federal Government of monetary obligations, the legislature also provided that the parties may agree that the execution of an adverse arbitration award shall be done by (i) mechanisms of economic and financial rebalancing alternative to the monetary compensation; (ii) offsetting of non-tax assets and liabilities; or (iii) assignment of the payment to a third party. Given these options, private parties who contract with the Federal Government may contractually provide for alternative forms of compensation, in order to avoid delay in payments via court-issued registered warrants (precatórios).

Access the full text of decree No. 10,025/19 here.

^[1] The Decree provides that accreditation of the arbitration chambers shall be carried out by the AGU and shall require the meeting of the minimum requirements listed in the same provision, among them: the chamber must have operated regularly for three years and be of good repute and experience. However, there is still no clear information on how accreditation will take place, which may compromise the implementation of arbitration commitments under the Decree.

Category: Labor and employment

Changes range from establishing objective inspection criteria to limiting the size of fines

Executive Order (MP) No. 905, published in the Official Federal Gazette on November 12, 2019, promotes a series of changes to the Consolidated Labor Laws (CLT), especially regarding labor inspection rules and the application of administrative fines.

Most of the amendments proposed in MP 905 were already contained in Executive Order No. 881/19 (as its text was approved by the Senate Constitution and Justice Committee - CCJ), which reaffirms President Jair Bolsonaro's government's proposal to reduce bureaucracy in labor relations, with the ultimate goal of promoting job openings and generating economic growth.

The provisions on labor inspections were not approved in the final text of MP 881/19 when it was converted into Law No. 13,874/19.

In this article, we review the main provisions of MP 905 relating to the changes in labor inspections and the application of administrative fines. They may be divided into changes (i) in the inspection procedure; (ii) the administrative procedure and valuation of fines; and (iii) the rules of settlements signed between the inspection entities and the companies.

(i) Changes in the inspection procedure

Double visit criteria

As provided for in MP 881, MP 905 proposes a change in the wording of article 627 of the CLT, which establishes the need for the labor inspection auditor to observe the double visit criteria. In the current wording of the CLT, this criteria would only apply in cases of: (i) promulgation or issuance of new laws, regulations, or ministerial instructions and (ii) first inspection of newly opened or begun establishments or businesses.

Decree No. 4,552/02 (the Labor Inspection Regulation), in its article 23, also points out two other situations for the application of the double visit criteria: (iii) when dealing with an establishment or business with up to ten workers, except when there is a violation due to lack of employee registration or annotation in the employee's work booklet (CTPS) or when recurrence, fraud, resistance, or blocking of the inspection occurs; and (iv) in cases of micro or small businesses.

MP 905 maintains the first two scenarios, but establishes that the double visit criteria will only be observed within 180 days from the effective date of the new normative provisions (item “i” above) or the effective date of the operation of the establishment/business (item “ii” above).

With regard to micro and small businesses, the MP promotes changes in current legislation by stipulating a limit for the application of the criteria to micro and small businesses with up to 20 workers, a provision that did not exist previously.

In addition, MP 905 reproduces the provision found in MP 881 that the double visit criteria would be applied in the case of infractions graded as light against legal or regulatory principles relating to occupational safety and health, according to a regulation issued by the Special Bureau of Social Security and Labor of the Ministry of Economy.

The last scenario in which the double visit criteria apply is the previously scheduled informational technical visits, which was also not provided for by laws and regulations.

Other innovations brought about by MP 905 are the need to analyze the double visit criteria for each item supervised by the labor auditor and the nullity of the infraction notice if the prior requirement is not met. Both innovations were not provided for in the wording of article 627 of the CLT.

Labor auditor's conduct

MP 905 also provides for the inclusion of article 627-B in the CLT, which establishes the need for labor inspection in order to include the planning of labor inspection actions, through the preparation of special sectoral inspection projects for the prevention of accidents, work-related diseases, and labor irregularities involving these issues.

If labor auditors find the existence of repeated irregularities and high levels of accidents or a large number of occupational diseases, they must indicate collective actions in order to prevent and remedy irregularities at the time of the inspection.

In addition, the MP provides for penalties applicable to labor auditors if bad faith in their performance is proven. In this case, they will be held liable for serious misconduct and may be suspended for up to 30 days, in addition to the opening of an administrative inquiry if the conduct of bad faith recurs.

Electronic labor domicile

MP 905 also innovates by reproducing a provision contained in MP 881 instituting the electronic labor domicile with the purpose of: (i) informing employers of administrative acts, oversight actions, subpoenas, and notices; and (ii) allowing the receipt of electronic documentation during the course of inspections or when presenting an administrative defense or filing an administrative appeal.

The reports transmitted in this system, the use of which will be mandatory for employers, do not require publication in the Official Federal Gazette and the sending thereof via mail. They will be considered personal for all legal purposes.

Employers must access this system within a period of ten days from the date of notice through a registered e-mail address. At the end of this period, the electronic report will be automatically considered performed.

The need to use this electronic system does not preclude the use of other legal means of reporting between the competent authority and the employer.

(ii)Changes in the administrative procedure and valuation of fines

Deadlines in administrative procedure

MP 905, as MP 881 provided, also amends the CLT as to the time limit for filing an administrative defense and for filing an administrative appeal. Prior to the date of entrance into force of the MP, the period was ten days from the receipt of the infraction notice or the decision by the trial level administrative court. With the proposed change, the time limit for filing an administrative defense and filing an administrative appeal will be 30 days.

Waiver of acknowledgment of signature

Another innovation that was also addressed in MP 881 and reproduced in MP 905 is the exemption from authentication of copies of documents sent in Brazil to be attached in administrative proceedings and waiver of acknowledgment of signatures. These formalities should be observed only when there is doubt about the authenticity of the documents.

Analysis of administrative defenses and appeals and parity appeal board

MP 905 provides for the deterritorialization requirement for the review of administrative defenses. This means that, if an objection is filed against a particular tax assessment notice, another state in the Federal Government other than the one that issued the assessment will be responsible for reviewing the administrative defense. The objective is to confer greater impartiality in the judgment of administrative proceedings.

In addition, the MP establishes the creation of a system of random distribution of cases for review, decision, and imposition of administrative fines, which favors the principle of adversarial proceedings by disengaging the administrative decision from the person directly responsible for the assessment.

Another innovation introduced by MP 905 which was also provided for in MP 881 is the creation of a tripartite joint committee, composed of representatives of workers, employers, and labor inspectors, to review appeals against infraction notices in the second and last level of administrative appeals.

Criteria for application of administrative fines

MP 905 also innovates by including article 634-A in the CLT, setting forth the criteria for the application of administrative fines in the event of issuance of infraction notices for non-compliance with labor standards.

Under this new provision, fines must be applied according to the nature of the offense (light, medium, severe, or very severe). The amounts of the infractions are subject to a variable fine (R$ 1,000.00 to R$ 100,000.00) or a fine per capita (R$ 1,000.00 to R$ 10,000.00).

The classification of fines, the nature of the infraction, and the classification by economic size, which is one of the criteria for setting the penalty, still require specific regulations, to be defined in an act by the Federal Executive.

MP 905 also provides for the possibility of paying an administrative fine with a 50% discount for individually owned companies, microenterprises, and small businesses with up to 20 employees, in the event of waiver of the right to file an administrative appeal. For other companies, the discount is 30% in this same scenario, when they give up their right to file a voluntary appeal.

The prior rule made no distinction as to the type/size of the company. Any employer assessed would be entitled to a 50% discount over the administrative fine if they paid within 10 days of receiving the notice, provided that they have not appealed.

(iii)Change in the rules regarding settlements between supervisory entities and companies

Consent Orders and Consent Decrees

MP 905 also provides that, in the event of the filing of a special procedure for an oversight action that will advise on the correct criteria for application of the law, Consent Orders and Consent Decrees signed shall have a maximum term of two years, and may be renewed for two more years when there is justification based on a technical report.

This provision benefits signatory companies inasmuch as they will no longer be compelled to comply with the obligations contained in these documents perpetually, given the existence of a maximum period for their validity.

MP 905 also innovates by providing that companies cannot be required to enter into two extrajudicial settlements (one with the Labor Attorney's Office - Consent Orders - and one with the Ministry of Economy - Consent Decrees) based on the same violation of labor laws or regulations.

Category: Litigation

The Third Panel of the Superior Court of Justice (STJ) assigned the judgment of Special Appeal No. 1.797.924/MT to the Second Chamber of the court on October 10. The discussion revolves around the continuation of lawsuits and executions filed against jointly and severally liable debtors, when cancellation of the creditors' guarantees is provided for in the judicial reorganization plan.

The judgment before the Second Chamber began on October 23, when Justice Nancy Andrighi voted for dismissal of the appeal, concluding that the suppression of guarantees can only be allowed in the event that the holders thereof assented to the provision, with a manifestation to that effect at the general meeting of creditors.

According to Justice Andrighi, the rights, privileges, and guarantees of those who do not agree with the suppression thereof should be preserved intact, since there is an express rule to that effect. Thus, in a confrontation between the provisions of the plan and those expressed in the law, the provisions of the law shall control. As requested by Justice Luis Felipe Salomão, the judgment was suspended and a settlement of the understanding on the subject is expected.

Article 49, paragraph 1, of Law No. 11,101/05 provides, expressly, that the creditors of a debtor in judicial reorganization retain their rights against the co-obligors, guarantors, and recourse obligors. In addition, the head paragraph of article 59 provides for the express exception that the novation of credits caused by approval of the plan, while obliging all creditors subject thereto, does not extinguish the guarantees.

Thus, considering the provisions of both articles, it is possible to find that the suspension provided for in articles 6, head paragraph, and 52, III, of Law No. 11,101/05, and the novation provided for in article 59, head paragraph, of the same law do not apply to the guarantors and any co-obligors.

This was the understanding of the STJ in the judgment on Special Appeal No. 1.333.349/SP, upon stating that “the judicial reorganization of the principal debtor does not prevent the continuation of executions or induce suspension or extinguishment of lawsuits filed against third party joint or several or co-obligor debtors in general, by foreign exchange, in rem, or in personam guarantee, as they are not subject to the suspension provided for in article 6, head paragraph, and article 52, item III, or the novation referred to in article 59, head paragraph, by force of the provisions of article 49, paragraph 1, all of Law No. 11,101/2005.”

Along the same lines, the Federal Judicial Review Board approved Restatement of Law No. 43, in the First Conference on Business Law, according to which “the suspension of the actions and executions provided for in article 6 of Law No. 11,101/2005 does not extend to the debtor's co-obligees."

Although the subject seems to have already been settled in the case law, in September of 2016, in the judgment of Special Appeal No. 1.532.943/MT, the Third Panel of the STJ found, in a non-unanimous opinion, that judicial reorganization plans that provide for the suppression or replacement of guarantees binds all creditors, including those absent and those who voted against approval, provided that it is approved by the majority of the creditors, that is, a majority vote at the general meeting of creditors has the effect of suppressing guarantees.

The judgment gained relevance, inasmuch as it was contrary to the previously prevailing understanding that guarantees are preserved, although the reorganization plan causes novation of the debts submitted to it.

In April of this year, in the judgment of Special Appeal No. 1.700.487/MT, also via a unanimous opinion, the Third Panel of the STJ again ruled that reorganization plans approved by the majority of creditors of a company undergoing judicial reorganization may suppress all personal or secured guarantees, even without the consent of all secured creditors.

In this judgment, Justices Marco Aurélio Bellizze, Moura Ribeiro, and Paulo de Tarso Sanseverino defended the theory of the majority principle, to the effect that the decisions by the general meeting must bind all creditors. On the other hand, Justices Ricardo Villas Bôas Cueva and Nancy Andrighi defended the theory that the novation must affect only the creditors who voted for its approval, without any type of proviso. Thus, the issue has not yet been settled, given the disagreement among the Justices of the Third Panel themselves.

Considering the divergence regarding the continuation of actions and executions filed against third party joint and several debtors, it will be necessary to await the judgment by the Second Section of the STJ to clarify definitively the interpretation to be given and the prevailing understanding in the confrontation between preservation of the creditors' guarantees and preservation of the company.