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Coronavirus: Circumstance for an Express Judicial Recovery?

23 Mar 2020

Thomas Felsberg, Founding Partner of Felsberg Advogados and a global reference in the area of insolvency and debt restructuring, has written a brief article in relation to Covid-19.


In this unprecedented crisis in modern times (not forgetting historical lessons from the Black Death and the Spanish Flu), it is necessary to find quick and practical solutions to the crisis of liquidity which already afflicts all companies in Brazil, small, medium and large.


An alternative that cries for attention is the drafting of a Provisional Measure that will allow companies to submit a petition for express judicial recovery, with the objective of postponing all payment obligations for 90 days, but containing the obligation to pay all suspended amounts in the subsequent ten months, without interest. This measure would include all economic agents and it would fall to the courts to approve their inclusion based on arguments submitted. The documents to be presented together with the petition should be concise and approval should be immediate, without prejudice to any eventual injured parties who might object in the short term (but after the approval), alleging the abuse of the measure or the applicant's unjust enrichment.


As an example, if a storekeeper whose business is no longer viable because of the crisis makes such a petition, it would be approved without further details. If, however, a manufacturer of ventilators or intensive care equipment makes such a petition, more details would be needed by the court.


In the case of financial institutions, a specific discipline would need to be drafted by the National Monetary Council given the peculiarities of the activity. As to health institutions, the same must be done, as their greater engagement in the crisis would not always be accompanied by a corresponding flow of resources and there is an obvious need for the supply of their inputs to be maintained, as well as the remuneration of their staff.


In the labor area, other adjustments will be necessary, such as the possibility of discounting labor credits at financial institutions, at acceptable costs.


In summary, a collective moratorium like the one proposed here would have the great advantage of avoiding the chaos that will be generated if such a moratorium is unilaterally declared by various agents, favoring the most capitalized companies and resulting in the unfeasibility of companies without sufficient reserves, which, without a solution like the proposal above, would not have the slightest chance of surviving the crisis.