The recent dispute between StoneCo Ltd and TOTVS SA over the acquisition of Linx SA has brought to light many important matters, especially directors' responsibility for damages caused to a company or its shareholders. TOTVS presented a hostile takeover offer, something which the Brazilian market is not used to since most companies have a controller group which owns 50% or more of the voting shares.
Although the COVID-19 pandemic's full impact on employment is still unknown, it is possible to identify some of the main topics and issues that the pandemic has caused which will be of interest to employers and employees in 2021. This article highlights such issues, including the suspension of employment agreements and reduction of working hours and salaries, payroll exemptions, an increase in labour claims and changes to profit-sharing plans.
Although the full impact of the COVID-19 pandemic on the job market is still unknown, it is possible to identify some of the main effects on employers, employees and workplaces. This article highlights government measures taken to date to help employers avoid terminations (eg, by suspending employment contracts or reducing working hours or salaries) and enable remote working and considers the pandemic's impact on workplaces and social security contributions.
This article summarises the practical impact of Law 14,020/2020 and Decree 10,422/2020 on Provisional Measure 936 and employers. The new rules concern the reduction of working hours and salaries and the suspension of employment agreements, including with regard to pregnant, retired or disabled employees.
The Ministry of the Economy and the Ministry of Health recently published Joint Ordinance Number 20, which provides the measures that employers must observe in order to prevent, control and mitigate the risk of COVID-19 transmission in their workplaces. This article highlights what employers need to know about the joint ordinance.
Article 29 of Provisional Measure 927, enacted on 22 March 2020, states that infection with COVID-19 is not considered a labour-related disease unless a relationship between the disease and the employee's job or occupation can be evidenced. Several institutions, especially political parties, have questioned the constitutionality of this provision before the Supreme Court.
In a welcome move to distinguish large risks from 'seguros massificados' (ie, mass insurance), the Superintendence of Private Insurance has proposed changes to the regulation of large risks through the issuance of the Draft Resolution for Public Consultation 18/2020. The draft resolution represents an important potential turning point in the Brazilian insurance and reinsurance landscape, correcting an imbalance in favour of policyholders, at least to some degree.
The National Council for Private Insurance – the Brazilian entity in charge of drawing up the country's reinsurance industry policies – recently introduced a series of changes to the regulatory landscape. Such changes aim to enforce the wider liberal agenda set out by the Ministry of the Economy and underline the federal government's commitment to a more liberalised economy.
The Brazilian real has devalued by more than 30% against the US dollar in 2020, making now an attractive time for Brazilian cedants supported by international reinsurers operating in US dollars to settle their claims. One of the salient features of Brazilian insurance claims is the accrual of significant levels of interest and monetary correction (ie, inflation-linked interest), which has the capacity to increase quantum at an alarming rate.
In Brazil, trade dress protection is supported in several regulations, all under the concept of unfair competition. Trade dress protection has also been widely acknowledged by the courts, and case law has been an important source of its doctrinal foundation. This article looks at trade dress protection in the beverage sector and examines several decisions which have granted such protection for types of beer, vodka and wine.
Ordinance 404 recently came into force, establishing Phase II of the Patent Prosecution Highway (PPH) Programme in Brazil. Phase II was published by the Brazilian Patent and Trademark Office in the last week of 2020 and modifies the limits and requirements for requesting participation in the PPH Programme. With this new phase of the PPH Programme, the previous Resolution 252 (establishing Phase I) has been revoked.
The Declaration of Economic Freedom was recently instituted by Presidential Provisional Measure 881/2019. Designed to curtail the state's undue interference in economic activities performed by individuals and companies, the law (which is subject to confirmation by Congress) is also expected to affect new and existing litigation, including the Civil Code. On its face, the Civil Code modification seems positive. However, it is unclear how the courts will react to these novelties.
Serving companies and individuals in Brazil in connection with suits abroad has just become easier, as Brazil has formally adhered to the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The convention should expedite both the summons of Brazilian parties involved in foreign proceedings and the service of parties abroad in connection with Brazilian litigation.
In addition to contractual fees, winning attorneys are entitled to court-awarded attorneys' fees, which are determined using objective criteria. However, despite being relatively straightforward to calculate, some courts struggle to award attorneys' fees, particularly in disputes involving significant amounts. A recent Superior Court of Justice decision provides clarity in this regard and is likely to set the tone for future disputes regarding court-awarded attorneys' fees.
The relatively new Civil Procedure Code specifically authorises parties to a contract to select a foreign jurisdiction to decide their disputes. Although the language of the code is straightforward, the lower courts are still debating whether the choice of a foreign jurisdiction would set aside the jurisdiction of the Brazilian courts. Until the Superior Court of Justice sheds some light in this regard, it will remain unclear whether Brazilian courts' jurisdiction can be set aside in favour of foreign courts.