Vencimento antecipado e compensação de contratos derivativos na recuperação judicialo tratamento dos derivativos de balcão na Lei de Recuperação e Falências

Resumo

This paper was originally designed to discuss the need to include a specific provision in the Brazilian Bankruptcy Law akin to the United States Bankruptcy Code’s safe harbors, specifically related to Brazilian OTC derivatives (or swaps). However, it happens that the Brazilian Bankruptcy Law was amended in December 2020 and a new article (193-A) was inserted into such law, which is already being referred to as the Brazilian safe harbor for derivatives (and repurchase transactions). In connection with such important legislative innovation, this paper gains relevance and pertinence for discussing what we consider to be the foundations for Article 193-A, a non-exhaustive legal principle, which main scope is to protect the contractual terms and conditions agreed upon between the parties. This work proposes a methodology cut dealing only with the over-the-counter derivatives and, more specifically, the closeout netting of such contracts in the event of judicial reorganization under the terms of the Brazilian Bankruptcy Law. Article 193-A is presented in the introduction, as well as a relevant practical case to illustrate the main concerns that were impacting the derivative agreements prior to the inclusion of such new article in the Brazilian Bankruptcy Law, being important to emphasize that the present paper does not consist of a case study. We thereafter discuss the fundamentals for article 193-A: derivatives as financial risk management instruments (Chapter 2); netting or set-off as ways of extinguishing obligations in Brazil (Chapter 3); the relationship between netting and insolvency (Chapter 4). In Chapter 5 we present a snapshot of the discussion in the United States doctrine about safe harbors and closeout netting, as well as critical and favorable views of safe harbors in the United States Bankruptcy Code, and we comment on the important doctrine regarding the bankruptcy’s shift to a contract paradigm with an emphasis on protecting ex ante contracts and presenting the risks of ex post renegotiations. In the last chapter we accomplish the logical conclusion resulting from the arguments presented in the course of the work: the defense of article 193-A of the Brazilian Bankruptcy Law, a much awaited and required legal protection for closeout netting provided for under ex ante derivative contracts, aiming at increasing the legal certainty for transactions executed within the Brazilian Financial System.

Ficha do documento

Tipo

Dissertação

Ano

2021

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/30988

Palavras-chave

Safe harborsCloseout nettingOTC derivativesCorporate reorganizationBankruptcyDerivativos de balcãoVencimento antecipadoCompensaçãoRecuperação judicialArtigo 193-A da Lei de Falências e Recuperação de Empresas (LRE)DireitoSociedades comerciais - Recuperação - BrasilBrasil. [Lei de falências (2005)]Compensação (Direito)Derivativos (Finanças)Falência - Estados Unidos