In the Precautionary Urgent Protection Measure in the antecedent character, preparatory to the Judicial Recovery process, formulated by AMERICANAS S/A, apparently headquartered in the district of Rio de Janeiro – RJ, together with BW2 DIGITAL LUX SARL and JSM GLOBAL SARL, both apparently headquartered in the country of Luxembourg, joint applicants (called ‘Grupo Americanas’) of the already historic news of debts in the amount of 20bi BRL of the former Brazilian retailer, which matured in advance would reach the estimated amount of 40bi BRL, the applicants used of arts.
189 and 6 (§12) of the CPC, for subsidiary use of the highest Brazilian procedural law, aiming to achieve, what was achieved and not revoked in the case of a claim for suspensive effect in an interlocutory appeal (distributed the appeal on duty) filed by the BTG-Pactual S/A, the granting of the suspensive injunction: (a) of stay of deeds that imposed early maturity of debts; (b) suspension of enforceability of obligations relating to financial instruments entered into between Grupo Americanas and BTG-Pactual; (c) suspension of the effects of default, including for recognition of arrears, contractual offsetting rights and the claim to settle a transaction with derivatives; (d) in addition, among other concessions, to the suspension of any attachment, attachment, kidnapping, search and seizure and restriction on assets, arising from judicial or extrajudicial claims, without prior analysis by the universal bankruptcy court.
(b) suspension of enforceability of obligations relating to financial instruments entered into between Grupo Americanas and BTG-Pactual; (c) suspension of the effects of default, including for recognition of arrears, contractual offsetting rights and the claim to settle a transaction with derivatives; (d) in addition, among other concessions, to the suspension of any attachment, attachment, kidnapping, search and seizure and restriction on assets, arising from judicial or extrajudicial claims, without prior analysis by the universal bankruptcy court. (b) suspension of enforceability of obligations relating to financial instruments entered into between Grupo Americanas and BTG-Pactual; (c) suspension of the effects of default, including for recognition of arrears, contractual offsetting rights and the claim to settle a transaction with derivatives; (d) in addition, among other concessions, to the suspension of any attachment, attachment, kidnapping, search and seizure and restriction on assets, arising from judicial or extrajudicial claims, without prior analysis by the universal bankruptcy court.
In effect, the attorneys for Grupo Americanas were right in the precautionary measure exactly in the argument of the company’s social function, a non-bankruptcy principle enshrined in art. 47 of Law 11.101/2005, with the new provisions (although practiced for some time by the national courts) of Law 14.112/2020.
It should be noted: the social principle of preservation of the company is a legal doctrine that aims to protect the continuity of business and the maintenance of jobs in the enterprise, seeking to reconcile the interests of creditors and employees. This principle is used in situations of financial crisis or insolvency, as a solution that can save the company (and the entire organic framework of society), without harming workers. The principle of preserving the company seeks to balance the interests of creditors and employees, with a view to finding legal remedies that can guarantee the survival of the company and the preservation of jobs.
Apart from other factual and legal arguments, the preliminary injunction passed during the (extrajudicial) meeting of Grupo Americanas with the creditors (which possibly caused the ‘fury’ of those at the table who were negotiating at the same time), based on the principle preservation of the company (art. 47 of the REF Law), offered to the real market (discarded the stock market, which was in an uproar on Monday morning, 01/16), the measure to, at least for now, guarantee more of 100,000 jobs, direct or otherwise, the lives of approximately 140,000 shareholders and the usual tax payments, with no interruption of continuity.
And the process is only at the beginning of a legal battle that will last for years, unless the controllers do not have that card up their sleeve of renegotiating debt by transferring assets to an eventual acquirer of the sliced and fragmented AMER3.
