Insolvência transnacional na Lei nº 11.101/05: um estudo sob a ótica da soberania nacional brasileira e da cooperação jurídica internacional

Abstract

Transnational insolvency, that is, the recovery of companies and bankruptey, involving creditors, assets and debtors who simultaneously occupy two or more international States, with their own jurisdictions and regulations, only became regulated in Brazil in December 2020, with the inclusion of Chapter VI-A in Law No. 11.101/05. In a society made up of global markets, with connections that transcend borders, the need to implement measures of intemational legal cooperation, which enable communication and assistance between jurisdictions of different nations, is necessary for the economic and social development of nations. Therefore, through Law No. 14.112/2020, the Brazilian legislation was updated, which incorporated the Model Law of UNCITRAL into its legal order. The maintenance of the previous system, in a legal context without any provision for this type of insolvency, would remove from interested parties the guarantee that the process of transnational company recovery or bankruptcy would be based on efficiency and fairness, especially for foreign parties. Brazilian legislation, it can be said right now, has been updated. Now, given the recent incorporation pointed out, the question is: does the adoption of the practice of international legal cooperation, through the recognition of foreign insolvency proceedings, represent a risk to the Brazilian national sovereignty, constitutionally established" In this context, the research seeks a better understanding of the theme, with the establishment of basic concepts and elementary principles related to the theme. By looking into the types of transnational insolvency systems and a brief historical foreshortening, passing through the North American and European systems until reaching the Brazilian one, it was possible to map how the theme evolved and gained relevance in the current social and economic context worldwide. Finally, the specific analysis of the newly included legal text and the practical and procedural elements necessary for the application of the law, prove to be relevant for all operators of this new action. When considering the analyzed factors, it is concluded that, for the benefit of Brazil's economic development, national sovereignty will have to be restricted, even if minimally, through the relation of national jurisdiction. From a macro perspective, the solution to the problem actually consists of maintaining the problem itself: one must always be aware of the way in which national sovereignty has been considered in actions to recognize foreign procedures, in eternal vigilance about the limits drawn and its transcendence. In specific and individual cases, each with its peculiarities, compliance with the UNCITRAL Interpretation Guide, the principles goveming transnational insolvency, the constant qualification of its operators, among others, can be allied in safeguarding sovereignty.