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Artigo29.04.2020

Limits to directors’ and officers’ liability for fraud or corruption in Brazil: arbitration involving state-controlled entities

Por:

André Luiz Marcassa Filho; Thiago Del Pozzo Zanelato

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André Luiz Marcassa Filho
Pinheiro Neto Advogados, São Paulo
amarcassa@pn.com.br (mailto:amarcassa@pn.com.br)
 
Thiago Del Pozzo Zanelato
Pinheiro Neto Advogados, São Paulo
tzanelato@pn.com.br (mailto:tzanelato@pn.com.br)
 
Guilherme Fonseca Schaffer
Pinheiro Neto Advogados, São Paulo
gschaffer@pn.com.br (mailto:gschaffer@pn.com.br)

Introduction

The State of Brazil has always had strong involvement in society. This can be easily demonstrated by heavy investment in social security,[1] and by the state's support of third-sector projects.[2] Wherever you look, the chances are there's public money involved.

The same applies for Brazil's economy. The country has a long standing practice of creating wholly or partly-owned state-controlled companies in multiple sectors of the economy.[3] However, this apparent prevalence of state-controlled entities in certain sectors of industry and services may soon be about to shift.

The current administration has been pushing the privatisation agenda hard. It has also been increasing the number of concessions and public-private partnerships.[4] Such projects, although presenting good investment opportunities, demand attention when analysing target companies.

In particular, investors should be aware of mismanagement, especially in relation to corruption or fraud. With regards this issue, it is worth clarifying that in Brazil 'corruption' only officially exists when related to public officials.[5] This is despite a relevant bill proposal in Brazil's Congress which aims to criminalise commercial bribery.[6]

Moreover, as widely reported, Brazil has a systemic issue with corruption and fraud, as shown by the repercussions of the Lava Jato, or 'Operation Car Wash'.[7] From an international perspective the country is still perceived as struggling with political integrity and combating corruption.[8]

In addition, the social, economic and financial implications of corruption are vast and affect society as a whole.[9] Practical impacts are demonstrated by cases such as that of Eike Batista, once Brazil's wealthiest person, who is now in prison guilty of market manipulation,[10] and Odebrecht, who filed the largest in-court restructuring proceedings in Latin America history, amounting to BRL98.5bn (approximately US$19.7bn).[11]

Nevertheless, as the majority shareholders suffered greatly from the financial (and criminal) fallout of corrupt and fraudulent acts, so did minority investors. While the Enron scandal[12] is probably still one of the better known examples around the world, Brazil has been adding some experience to the list.[13]

As such, if someone is looking to invest or has invested in a Brazilian company, especially state-controlled companies, and gets suspicious of corruption, fraud or mismanagement by directors, precaution needs to be taken. In particular, due to Brazil's and the US' differences on the statute of limitations regime, whenever the investor or minority shareholder becomes wary of directors' and/or officers' fraudulent acts, they should act promptly to minimise the risk of having civil action for damages time-limited. Some of the differences between Brazil's and the US' statute of limitations, as well as the respective actions for damages are analysed below.

Directors' and officers' liability in Brazil

In Brazil, directors and officers are liable if proven that:

  • they have breached the duties set out in the applicable legislation[14] or company by-laws;
  • they have caused damage to the company; and
  • a link is established between their conduct and the damage caused.[15]

While in Brazil, a Federal Law governs the matter, in the US each State has its specific statute underlying the causes of action for recovery of damages. However, despite the numerous legislation, most States provide for actions based on fraud, defined as a conscious misrepresentation or omission of a fact with the intention to induce someone with justifiable reliance in that information to act or refrain from acting in a certain manner, causing damages to this person.[16]

The rules in the State of New York, one of the most traditional jurisdictions in the US, are similar. According to said law, in order to hold directors liable for losses caused to the company (and to its shareholders), a plaintiff must prove a breach of fiduciary standards of conduct and to their duty to undertake any corporate action in good faith.

The statute of limitations applied in Brazil and certain US jurisdictions differ however, regarding the initial term used for calculating the limitation period for filing actions on fraud, corruption or mismanagement. According to New York and Delaware state laws, for example, the limitation period starts from the accruing of the cause of action.[17] New York state law also provides for an alternative limitation period, starting from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it.[18] In Brazil, however, the approval of the accounts by the shareholders discharges the directors and officers from liability before the corporation and shareholders.[19] As such, an investor or the corporation itself seeking damages against directors and/or officers must – if they unqualifiedly approved the financial statements and accounts – first file an action to annul general shareholders' meeting that approved such accounts in which the director or officer was discharged.[20] Later, or in conjunction with the annulment action, the plaintiff may file the civil action to recover damages, based on the director's or officer's mismanagement, in the three years following the general shareholders' meeting that approved the accounts.[21]

The most practical consideration arising from this comparison is how to deal with suspicions of fraud, corruption or mismanagement in a timely manner. While US practice would probably advise on initiating an investigation and, only after the delivery of the final report, filing an action; doing so in a dispute against a director or an officer that caused damage to the corporation due to fraud, corruption or mismanagement, under Brazil's substantive law, would likely cause the civil action to run out of time.

In order to work around such problems, a new category of action for the recovery of damages has been used in Brazil. While the practice has usually been for the company or its shareholders to file a suit against directors or officers, as a consequence of corruption allegations on bond values, minority investors have been filing lawsuits and arbitral proceedings against companies and their controlling shareholders.

In particular, the importance of arbitration has been increasing in such scenarios because of a provision set in the 'new market' rules,[22] a special segment of Brazil's Stock Exchange (B3) with stricter compliance stipulations.[23] All companies must have arbitral clauses in their by-laws providing for all disputes between their shareholders, officers, directors and members of the fiscal board to be resolved by arbitration, administered by the Câmara de Arbitragem do Mercado or Arbitral Chamber of the Market,[24] an arbitral institution which was created solely for this purpose.

Most importantly, the use of a less restrictive dispute resolution method from a procedural standpoint has allowed for the development of a new category of a civil action to recover damages, inspired in the US class actions, in which the minority shareholders may file the civil action against the companies and/or its controlling shareholder.

Given the economic magnitude of these cases, having the companies and/or its controlling shareholders as defendants increases the chances of payment of the minority shareholders, if successful. It also serves as a means of avoiding the need to annul a previous shareholders' meeting that approved the accounts.

Despite being fairly new, Brazil's experience has already quite a few to showcase, of which Petrobras is probably the most prominent case. This state-controlled corporation, was created in 1953 as part of the President Vargas 'the oil is ours' campaign. It suffered a serious impact in its share value due to revelations that its directors and officials were heavily involved in corruption. The announcement of this news, together with the release of fake financial reports, caused a number of investors and minority shareholders to file notices of arbitration against Petrobras, seeking damages due to devaluation of their shares.

It is reported that five arbitral proceedings have been initiated against the company, amounting to billion dollar sums.[25] Moreover, holders of American depositary receipts (ADRs) filed a class action before the US courts. Petrobras argued the existence of a valid and binding arbitration clause, but the US Court of Appeals for the Second Circuit maintained the jurisdiction of the Southern District of New York over the case.[26] The class action was later settled.[27] Another class action was filed before Brazil's courts, but considering the cases have different legal regimes,[28] it was dismissed without prejudice due to the existence of an arbitration clause.[29]

In another case, JBS has also had arbitral proceedings initiated by an association of minority shareholders.[30] The company suffered a massive undertaking in its shares as the result of a leak of a recording by JBS's controlling shareholders, Joesley and Wesley Batista, in which the former President allegedly authorised a bribe to secure the silence of former Speaker of the House, Eduardo Cunha in investigations.[31]

The event represented the worst day for Brazil's stock exchange index in nine years and was immortalised as 'Joesley Day'.[32] Despite of the damage to shareholders, the 2018 Report indicated the company was no longer responding to the two proceedings for the recovery of damages.[33]

Also recently, Vale, who operated a tailings (earth-fill embankment) dam which collapsed in Brumadinho, a city in the State of Minas Gerais, suffered severe losses to its market value and is having to incur massive costs to restore the environment and compensate victims. In light of this, investors initiated proceedings against the company alleging the lack of information on the risk of the dam collapsing.[34]

Use of arbitration involving state-controlled entities

Extra caution should be taken regarding the binding effect of arbitration clauses to such parties if the controlling shareholder is a state-controlled entity. Such entities would include the federal government, state government or the federal district, which comprise the 'direct administration', or a state-controlled company or bank, which form part of the 'indirect administration'.

From an historical perspective, the public administration's participation in arbitral proceedings was first accepted by the Federal Supreme Court (STF) in the Lage case, in 1973.[35] However, considering that at the time, Brazil had yet to enact arbitration legislation, which only took place 23 years later, on 23 September 1996, with Federal Law No 9,307 (BAA)[36] and was caught afterwards in a discussion on the constitutionality of the BAA, which was only resolved by the Federal Supreme Court in 2001,[37] the debate was long postponed.

After establishing a legal framework and the constitutionality of arbitration, the possibility of its use by state-controlled entities was once again ascertained in the Copel case.[38] The Federal Government's Tribunal of Accounts (TCU), however, considered that the absence of legal authorisation impeded public officials to include arbitral clauses in contracts. For this reason, in  2015,  the  BAA  was  amended  by  Federal  Law  No  13,129/15  specifically  to  mention  that  the  public administration may use arbitration to resolve disputes concerning economic and disposable matters.[39] The legal provisions authorising arbitration by the  public  administration  were  further  expanded  by  decrees  enacted  by  the  Federal Government and some states which specified some aspects of arbitral clauses and proceedings in greater detail, such as the seat of arbitration, applicable law, advancement of costs, publicity of proceedings, inter alia, which are expected to facilitate and encourage public officials to choose arbitration.[40]

The tendency towards permitting (and incentivising) the use of arbitration by state-controlled entities has, however, had a recent shift in a case concerning the binding effect of the arbitral clause contained in Petrobras's by-laws to the Federal Government.[41] On analysing the case, Reporting Justice Nancy Andrighi of the Superior Court of Justice (STJ) was outvoted by the remaining justices of the Second Session, who are responsible for judging cases of private law. They declared the Federal Government was not bound by the arbitral clause. Justice Luis Felipe Salomão, who cast the clinching vote, argued that the jurisdiction of the federal courts to trial the case was the result of a prima facie lack of subjective and objective arbitrability.

On the subjective point, Justice Salomão recognised the possibility of the public administration using arbitration as a method of dispute resolution. He did, however, caution its use to the existence of a specific legal provision:

'With effect, the legal authorisation extracted from Law No 13,129/15 refers to the consecration, in the legislative sphere, of the well-established case law of the STF and STJ in regard to the adoption of arbitration by the public administration, but only before legal or regulatory specific provisions.' (emphasis in original) (free translation).

Justice Salomão explained that, at the general meeting in which the arbitration clause was inserted into the by-laws, the Federal Government was solely represented by the Attorney General acting on behalf of the Federal Government (AGU), who did not have powers of representation to agree to an arbitration clause. He did not, however, indicate who would possess such capacity, concluding that the Federal Government has never agreed to arbitrate.

On the objective arbitrability point, a debate as to the subject-matter of the arbitral proceedings arose because the arbitral clause has a particular provision which obstructed the Federal Government's votes in general meetings from being challenged in arbitration, for declaring it as non-disposable right.

The issue focused on whether the arbitration was discussing the votes of the Federal Government. Based on a decision by the arbitral tribunal, Justice Andrighi, understood that the object of the dispute related to the devaluation of Petrobras's bonds, and that the existence, validity or efficacy of the Federal Government's deliberations had no link to the cause of the action.

In opposition, however, Justice Salomão opined that it concerned the election of the directors responsible for the acts of corruption, fraud and mismanagement that led to the bonds' devaluation, which would be outside of the scope of the arbitral clause.

He did, however, agree with Justice Andrighi's view in the objective of the arbitration several times. This is only one of the decision's contradictions both in itself and to the courts case law. Moreover, the absence of Justice Andrighi in the session in which Justices Salomão and Bellizze cast their votes is certainly attention worthy. This is further emphasised by the mention to a BRL58bn (approximately US$11.6bn) fiscal risk and that the case represented the 'largest lawsuit in the world'.[42]

Put differently, the decision had serious political and economic implications. Also, an idiosyncrasy in Petrobras' arbitration clause gave rise to some discussions, which may not have occurred otherwise. In spite of that, and considering this is still an isolated ruling, the implications should be treated with caution.

Conclusion

Brazil still faces serious issues involving corruption. This affects not only politics and public finance, but also has a massive impact on the economy, the financial markets and investors.

Idiosyncrasies in Brazil's substantive law ought to be observed by the practitioners. Otherwise, there is a risk of statute of limitation expiring in Brazil on actions for damages due to fraud and corruption filed against directors and officers. Moreover, parties should be aware of new possible civil remedies being taken against the company and its controlling shareholder to recover damages resulting from omissions in the disclosure of relevant facts to the market. Finally, even more care should be taken if a state-controlled entity is one of the defendants in arbitration proceedings instituted by minority shareholders. This is because of specific singularities in the recent decision by the STJs, its applications in other disputes involving shareholders and state-controlled entities remain uncertain. It is still to be seen what effects this recent STJ's decision will have and if this decision will have any impact on how arbitration will be used in Brazil in the future, as an efficient and secure method of dispute resolution for matters involving fraud and corruption.

[1] The Federal Government's 2020 Budget estimates the social security expenditure at BRL905,014,734 (approx US$180m), Article 2, I of Federal Law No 13.978/20.

[2] In Brazil, the funding of entities dedicated to social security activities is covered by two laws: The Social Organisation (Organizações Sociais or OS) Act (Federal Law No 9,637/98); and the Civil Society Organisation of Public Interest (Organizações da Sociedade Civil de Interesse Público or OSCIP) Act (Federal Law No 9,790/99).

[3] Maria Sylvia Zanella Di Pietro, Fabrício Motta, 'Administração Pública e Servidores' in Maria Sylvia Zanella Di Pietro, Tratado de Direito Administrativo, Thomson Reuters 2019, RB-8.2, available at: https://proview.thomsonreuters.com/title.html? redirect=true&titleKey=rt%2Fmonografias%2F100963923%2Fv2.1&titleStage=F&titleAcct=ia744803f00000154ba78a55fc1fa335d#sl=p&eid=85e19a523a08fd6e1b3b481c7ce595a1&eat=%5Bereid%3D%2285e19a523a0 8.2&psl=&nvgS=false (https://proview.thomsonreuters.com/title.html? redirect=true&titleKey=rt%2Fmonografias%2F100963923%2Fv2.1&titleStage=F&titleAcct=ia744803f00000154ba78a55fc1fa335d#sl=p&eid=85e19a523a08fd6e1b3b481c7ce595a1&eat=%5Bereid%3D%2285e19a523a0 8.2&psl=&nvgS=false) accessed 16 March 2020.

[4] Darlan Alvarenga, 'Mapa das privatizações: governo tem 115 projetos em carteira e quer leiloar ao menos 6 estatais em 2020' ('Privatisation map: government has 115 projects in its portfolio and wants to auction at least six state-owned companies in 2020'), Globo.com, Economia, 31 January 2020, available at: https://g1.globo.com/economia/noticia/2020/01/31/mapa-das-privatizacoes-governo-tem-115-projetos-em-carteira-e-quer-leiloar-ao-menos-6- estatais-em-2020.ghtml (https://g1.globo.com/economia/noticia/2020/01/31/mapa-das-privatizacoes-governo-tem-115-projetos-em-carteira-e-quer-leiloar-ao-menos-6-estatais-em-2020.ghtml), last  accessed  27  March 2020.

[5] In accordance with Brazil's Criminal Code (Decree-Law No 2848/1940), public officials are subject to the crime of 'passive corruption' (Article 317), while private parties may be prosecuted for 'active corruption' (Article 333) and 'active corruption in international commercial transaction' (Article 337-B).

[6] André Luiz Marcassa Filho, 'Implementing United Nations Convention Against Corruption: Why Commercial Bribery Should Be A Crime in Brazil?', available at: /Article/NewDetail.aspx?ArticleUid=5305CFEE-8336-4983-9E98- 9319FE7ABE53 (/Article/NewDetail.aspx?ArticleUid=5305CFEE-8336-4983-9E98-9319FE7ABE53) accessed 16 March 2020.

[7] 'No one has ever made a corruption machine like this one: there's graft, and then there's Odebrecht graft', Bloomberg Businessweek, 8 June 2017, available at: www.bloomberg.com/news/features/2017-06-08/no-one-has-ever- made-a-corruption-machine-like-this-one (https://www.bloomberg.com/news/features/2017-06-08/no-one-has-ever-made-a-corruption-machine-like-this-one), last accessed 25 March 2020.

[8] 'Corruption Perception Index (CPI) 2019: Americas', Transparency International, available at: www.transparency.org/news/feature/cpi_2019_Americas (https://www.transparency.org/news/feature/cpi_2019_Americas), last accessed 25 March 2020.

[9] Carlos F Concepción, 'Combating Corruption and Fraud from an International Arbitration Perspective', available at: /Article/NewDetail.aspx?ArticleUid=10dc0d5d-1c13-45e3-959e-030449be81f8 (/Article/NewDetail.aspx? ArticleUid=10dc0d5d-1c13-45e3-959e-030449be81f8) accessed 16 March 2020.

[10] Gram Slattery, Rodrigo Viga Gaier 'Brazilian police again arrest Eike Batista, once Brazil's richest man', Reuters, 8 August 2019, available at: www.reuters.com/article/us-brazil-corruption-batista/brazil-police-again-arrest-eike- batista-once-brazils-richest-man-idUSKCN1UY1IE (https://www.reuters.com/article/us-brazil-corruption-batista/brazil-police-again-arrest-eike-batista-once-brazils-richest-man-idUSKCN1UY1IE), last accessed 25 March 2020.

[11] 'Brazil's Odebrecht files for bankruptcy protection after years of graft probes', Reuters, 17 June 2019, available at: www.reuters.com/article/us-odebrecht-bankruptcy/brazils-odebrecht-files-for-bankruptcy-protection-after- years-of-graft-probes-idUSKCN1TI2QM (https://www.reuters.com/article/us-odebrecht-bankruptcy/brazils-odebrecht-files-for-bankruptcy-protection-after-years-of-graft-probes-idUSKCN1TI2QM), last accessed 25 March 2020.

[12] 'Opinion: An Implosion on Wall Street', New York Times, 29 November 2001, available at: www.nytimes.com/2001/11/29/opinion/an-implosion-on-wall-street.html (https://www.nytimes.com/2001/11/29/opinion/an- implosion-on-wall-street.html), last accessed 25 March 2020.

[13] In the case of JBS, the alleged involvement of the majority shareholders in a corruption scheme with some of the most senior politicians in Brazil caused the shares' market price to fall by over 30 per cent in one day, see 'Ação da JBS despenca mais de 30% e perde R$ 7,4 bilhões em valor de mercado; Bovespa fecha em queda' ('JBS stock plummets more than 30 per cent and loses R$7.4 billion in market value; Bovespa closes in fall'), Globo.com, Economia, 22 May 2017, available at: https://g1.globo.com/economia/mercados/noticia/acao-da-jbs-despenca-nesta-segunda-bovespa-fecha-em-queda.ghtml, last accessed 27 March 2020. Odebecht's shares had a 90 per cent decrease of value between 2014 and 2019 due to multiple corruption scandals (see 'Odebrecht Holding Files for Bankruptcy Protection in Brazil', Bloomberg, 17 June 2019, available at: www.bloomberg.com/news/articles/2019-06-17/odebrecht-holding-files-for- bankruptcy-protection-in-brazil (https://www.bloomberg.com/news/articles/2019-06-17/odebrecht-holding-files-for-bankruptcy-protection-in-brazil), last accessed 25 March 2020).

[14] Pursuant to Federal Law Nos 6.404/76 and 10.406/02, 'the directors have the following duties and obligations: (a) a duty of diligence, employing the same care and diligence that every diligent and honest person employs in its own business; (b) to act within the scope of their duties without misuse of power, refraining from the performance of gratuitous or non-authorised acts, and the receipt of personal advantage by reason of the performance of their duties; (c) even if elected by a certain group or class of shareholders, they have the same duty to the company as everyone else, and must not, even in the defence of the interests of those who elected them, fail to fulfil these duties; (d) a duty of loyalty; (e) to act without conflict of interest, not intervening in any transaction where they have an interest conflicting with that of the company; and (f) a duty of information.' (Marcelo Viveiros de Moura and Marcos Saldanha Proença, The Corporate Governance Review, Chapter on Brazil, Sixth Edition, Editor Willem J L Calkoen, p 70).

[15] Marcelo Vieira von Adamek, 'Responsabilidade Civil dos Administradores de S/A e as ações correlatas' (Saraiva 2009), 210.

[16]  Carrie A Tandler, Jed Klazen, Matthew J Kokot, 'Asset Recovery 2017' (5th Ed) (Getting the Deal Through, Chapter on United States, 2016) 158.. See Wolf v Rand, 258 A D 2d 401, 685 N Y S 2d 708, 711 (N Y App Div, 1st Dept 1999).

[17] See NY CVP section 213 (8); Del Code Ann section 8106.

[18] See NY CVP section 213 (8).

[19] Federal Law No 6,404/76 (corporation's regime), Article 134, section 3, 'Unqualified approval of the financial statements and accounts shall exempt the officers, directors and members of the fiscal board from liability, except as regards to            error, malicious conduct (lack of good faith), fraud or misinterpretation (Article 286)' (free translation). Federal Law No 10,406/02 (other entities' regime), Article 1078, partners' general meetings shall be held at least once a year, within four             months after year end, with the purpose of: taking the management accounts and resolving on the balance sheet and income statements; (...) Paragraph 3. Unqualified approval of the balance sheet and income statement, save in case of                       error, wilful misconduct or sham, shall exempt from liability the members of the senior management and fiscal board, if any. Paragraph 4. The right to annul the approval set out in the preceding paragraph shall forfeit after two years.

[20] Federal Law No 6,404/76 (corporation's regime), Article 286,'Proceedings to annul resolutions made at a general or special meeting of shareholders which has been called or opened otherwise than in accordance with the law or by-laws, or which has been the subject of error, bad faith, fraud or misrepresentation, shall not be commenced after two years have elapsed from the date of the resolution' (free translation).

Federal Law No 10,406/02 (other entities' regime): Article 1078. (...) Paragraph 4. The right to annul the approval set out in the preceding paragraph shall forfeit after two years.

[21] Nelson Eizerik, 'Lei das Sociedades Anônimas Comentada', Vol 4 (Quartier Latin 2014) 527. This is in line with Article 287, II, 'b' of Federal Law No 6,404/76. However, Marcelo Vieira von Adamek understands this provision has been revoked by article 206, section 3, VII, 'b' of the 2002 Civil Code (Federal Law No 10,406/02), which establishes the initial mark of the limitation as 'from the moment the partners are submitted the balance sheet as of the fiscal year in which such breach has occurred, or as from the meeting or general meeting at which such event is to become known' (free translation) as the presentation, to the shareholders, of the accounts or the meeting in which they should be presented (Responsabilidade Civil dos Administradores de S/A e as ações correlatas (Saraiva 2009), 295).

[22] Available at: file:///C:/Users/fonse/Downloads/nova-regulamentacao.pdf (file:///C:/Users/fonse/Downloads/nova-regulamentacao.pdf) accessed 16 March 2020.

[23]  Available at: www.b3.com.br/data/files/B7/85/E6/99/A5E3861012FFCD76AC094EA8/Regulamento%20do%20Novo%20Mercado%20-%2003.10.2017%20%28Sancoes%20pecuniarias%202019%29.pdf (http://www.b3.com.br/data/files/B7/85/E6/99/A5E3861012FFCD76AC094EA8/Regulamento%20do%20Novo%20Mercado%20-%2003.10.2017%20%28Sancoes%20pecuniarias%202019%29.pdf) (accessed 7 April 2020).

[24] See article 39 of the New Market Rules (n 21).

[25] 'Petrobras se prepara para arbitragens e ações individuais no Brasil e nos EUA', available at: www.conjur.com.br/2018-jan-06/petrobras-mira-arbitragens-acoes-individuais-brasil-eua (https://www.conjur.com.br/2018-jan- 06/petrobras-mira-arbitragens-acoes-individuais-brasil-eua), last accessed 26 March 2020, (in Portuguese).

[26] In re Petrobras Securities, Case 16-1914, Document 324-1, 07/07/2017 available at: www.petrobrassecuritieslitigation.com/docs/Second_Circuit_Opinion.pdf (http://www.petrobrassecuritieslitigation.com/docs/Second_Circuit_Opinion.pdf), last accessed 26 March 2020.

[27] Brendan Pierson, 'Petrobras to pay $2.95 billion to settle US corruption lawsuit', Reuters Business News, 3 January 2018, available at: www.reuters.com/article/us-petrobras-classaction/petrobras-to-pay-2-95-billion-to-settle-u- s-class-action-over-corruption-idUSKBN1ES0L2 (https://www.reuters.com/article/us-petrobras-classaction/petrobras-to-pay-2-95-billion-to-settle-u-s-class-action-over-corruption-idUSKBN1ES0L2),  last  accessed  26  March  2020.

[28] Peter Sester, 'The binding effect of arbitration clauses in the context of private international law and international procedural law: the case of ADRs issued by Petrobras'(2018) 57 Revista de Arbitragem e Mediação, 99.

[29] 'Ação da Aidmin contra Petrobras é extinta na Justiça de São Paulo', Valor, 4 July 2018, available in https://valor.globo.com/empresas/noticia/2018/07/04/acao-da-aidmin-contra-petrobras-e-extinta-na-justica-de-sao- paulo.ghtml (https://valor.globo.com/empresas/noticia/2018/07/04/acao-da-aidmin-contra-petrobras-e-extinta-na-justica-de-sao-paulo.ghtml), last accessed 26 March 2020, (in Portuguese).

[30] JBS SA Annual Report, 2017, available at: https://jbss.infoinvest.com.br/ptb/4515/604852.pdf (https://jbss.infoinvest.com.br/ptb/4515/604852.pdf), last accessed 26 March 2020, (in Portuguese).

[31] 'Dono da JBS gravou Temer dando aval para comprar silêncio de Cunha, diz jornal', ('JBS owner recorded Temer giving endorsement to buy Cunha's silence, says newspaper'), Globo.com, Política, 17 May 2017, available at: https://g1.globo.com/politica/noticia/dono-da-jbs-gravou-temer-dando-autorizacao-para-comprar-silencio-de-cunha-diz-jornal.ghtml (https://g1.globo.com/politica/noticia/dono-da-jbs-gravou-temer-dando- autorizacao-para-comprar-silencio-de-cunha-diz-jornal.ghtml), last accessed 26 March 2020, (in Portuguese).

[32] 'Bovespa fecha na maior queda em quase 9 anos após denúncias da JBS', ('Bovespa closes in the biggest drop in almost nine years after complaints from JBS'), Globo.com, Economia, 18 May 2017, available at: https://g1.globo.com/economia/mercados/noticia/bovespa-fecha-em-forte-queda-de-olho-em-denuncias-sobre-temer.ghtml (https://g1.globo.com/economia/mercados/noticia/bovespa-fecha-em-forte-queda-de-olho- em-denuncias-sobre-temer.ghtml), last accessed 26 March 2020, (in Portuguese).

[33] 2018 JBS SA Annual Report, available in https://jbss.infoinvest.com.br/ptb/4515/604852.pdf (https://jbss.infoinvest.com.br/ptb/4515/604852.pdf) accessed 16 March 2020.

[34]  2018 JBS SA Annual Report, available in: https://jbss.infoinvest.com.br/ptb/4918/RA%20e%20DF%202018%20-%20CVM.pdf (https://jbss.infoinvest.com.br/ptb/4918/RA%20e%20DF%202018%20-%20CVM.pdf)

(accessed 7 April 2020).

[35] Federal Supreme Court (STF), AI No 71,467/GB, Rapp Justice Bilac Pinto, plenary session, ruled 14 November 1973.

[36] Federal Law No 9,307 (BAA), available at: www.planalto.gov.br/ccivil_03/leis/l9307.htm (http://www.planalto.gov.br/ccivil_03/leis/l9307.htm). English version, translated by Brazil's Arbitration Committee (CBAr), available at:

http://cbar.org.br/site/legislacao-nacional/lei-9-30796-em-ingles (http://cbar.org.br/site/legislacao-nacional/lei-9-30796-em-ingles), last accessed 26 March 2020.

[37] STF, SE 5,206-7, Rapp Justice Sepúlveda Pertence, plenary session, ruled 12 December 2001.

[38] The Superior Court of Justice (STJ) homologated a settlement between the parties, one of which, 'Copel' was a mixed capital company owned by the State of Paraná (STJ, REsp No 769,014/PR, Rapp Justice Aldir Passarinho Junior, monocratic decision, ruled 20 June 2006).

[39] Article 1, Paragraph 1: 'The direct and indirect public administration may use arbitration to resolve conflicts regarding disposable economic rights' (free translation).

[40] The Federal Government enacted Decree No 10,025 on 20 September 2019, the State of São Paulo enacted Decree No 64,356 on 31 July 2019, and the State of Rio de Janeiro enacted Decree No 46,245 on 19 February 2018. Also, the State of Minas Gerais had already enacted State Law No 19,477 on 12 January 2011.

[41] STJ, CC No 151,130/SP, Rapp for judgement Justice Luis Felipe Salomão, Second Session, ruled 27 November 2019, published 11 February 2020.

[42] This quote, however, was made out of context. It was based on a comment by the lawyer responsible for filing a class action before the US courts. He is said to be writing a book about it, the title of which would be 'The world's largest lawsuit', which is not the arbitral proceedings object of the judgment. See 'Petrobras também deve ressarcir acionista brasileiro', ('Petrobras should also reimburse Brazilian shareholder'), Joto, 7 December 2017, available at: www.jota.info/paywall?redirect_to=//www.jota.info/justica/petrobras-tambem-deve-ressarcir-acionista-brasileiro-07122017 (https://www.jota.info/paywall?redirect_to=//www.jota.info/justica/petrobras-tambem- deve-ressarcir-acionista-brasileiro-07122017), last accessed 26 March 2020, (in Portuguese).

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