Celiakia Gorzów

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The ruling of the Special Chamber of Bankruptcy and Judicial Recovery of the Court of Justice of São Paulo in the judgment of Motion for Declaration -/- already brings in its body the thesis that is, little by little, being consolidated in the collective Chamber: if the arbitration procedure begins before the bankruptcy is declared, the judicial administrator must assume it, representing the bankrupt estate.


Now, if the ruling already contains the main argument, why analyze it?

Because it gives prestige to the institution of arbitration, so well received by this renowned Chamber, from the first and crystal clear vote on the subject, by judge Pereira Calças, in Interlocutory Appeal /- It is precisely from this vote that judge Maia da Cunha, rapporteur of the Motion for Clarification under analysis, made his reasoning regarding the intersection of arbitration and bankruptcy law.

On the other hand, an attempt will be made to add, data BTC Number Data maxima venia , some points that would deepen the respectable decision.



Along this path, it is worth making a brief comment on the objectives of the Bankruptcy Law, and exploring, through the eyes of doctrine, the arbitrability of bankruptcy law and the principle of kompetenz-kompetenz enshrined in article of the Arbitration Law (LArb) and, finally , the unnecessary intervention of the Public Prosecutor's Office in the arbitration procedure.

The role of Bankruptcy Law
Bankruptcy legislation has an important role from an economic point of view. It is what brings balance to the insolvency system, which can be generated both by poor business management and, in view of the economic literature, by information asymmetry (moral hazard and adverse selection) and by incomplete contracts (economic crises, cyclical factors , increased competition, development of new technologies).

Thus, current legislation attempts to bring efficiency to the bankruptcy process, maximizing tangible and intangible assets [] , with the aim of creditors recovering part of their credits.

In this line of reasoning, arbitration, due to its technicality and speed, contributes to the efficiency and legal security that the new bankruptcy law wants to implement in the economy.
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