A ausência de tratamento jurídico adequado à insolvência transfronteiriça no Brasil: uma análise do tema à luz do direito internacional e de sua relevância para sociedades petrolíferas

Abstract

The general objectives of this research can be divided into two. First, study the status quo of cross-border insolvency in both global and domestic context. Secondly, verify the impacts of the subject on the oil industry, supported mainly by situations already discussed by national jurisprudence. Guided by these objectives, it will, preliminarily, examine legal institutes important for the matter, such as legal personality, nationality and the complex issue of corporate groups. Then, it will study the systems dealing with the effects of cross-border insolvency, i. e., universalism and territorialism, as well as the most relevant mixed systems in the international arena, examining the relevant pros and cons of each system. After this theoretical background, it will investigate the issue of cross-border insolvency in treaties, conventions, jurisprudence (international and foreign), model laws, among other relevant instruments on the subject, with an overview, for example, of the Bustamante Code, the UNCITRAL Model Law on Cross-Border Insolvency of 1997, its legislative guide and its internalization by some foreign jurisdictions, such as Chapter 15 of the US Bankruptcy Code, the Council Regulation (EC) No 1346/2000 on insolvency proceedings, revitalized by Regulation (EU) 2015/848 of the European Parliament and of the Council on insolvency proceedings, among other instruments. In the Brazilian context, the research will demonstrate that, although Brazil has a history dealing with cross-border insolvency effects since imperial age (Decree No 6.982/1878), the country currently holds a legislative loophole after Code of Civil Procedure of 1973 have repealed local norms on the subject. The Bustamante Code was ratified by Brazil and remains in force in the country, so it can be used in local insolvency proceedings, but the research examines if its old provisions are still able to regulate efficiently the complex issue of cross-border insolvency and its consequences on today's scenario. In addition, it will study the innovations of the Civil Procedure Code of 2015 and Senate Proposed Bill No. 487/2013, which seeks to internalize in Brazil some rules of UNCITRAL Model Law. Finally, it will analyze the OGX case, considered an emblematic case law in Brazil, and its legacy on other national cases, with the scope of systematizing the Brazilian jurisprudential position on the matter. Considering that the OGX case involved a large oil corporate group, the research will examine, supported by the case, but beyond it, the impacts of cross-border insolvency on the oil and gas sector, such as the liability of companies associated by consortium after the recognition of insolvency state of one of its members, the validity of interests in oil industry, the role of National Agency of Petroleum, Natural Gas and Biofuels in view of its duty to preserve the public interest, among others issues. It s a bibliographical and documentary research and the method adopted is deductive.