The projects of the new Commercial Code and the serious Brazilian scenario

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Presented in the form of two distinct bills, the edition of the new Commercial Code is already heading in a retrograde direction. What is exposed as a guide for legal modernization, in fact, is a nebulous set capable of creating impediments and worsening the already bureaucratic routine of Brazilian entrepreneurs.


Let's look at some examples. Among the 670 articles of PLC 1,572/2011 and 1,195 of PLS ​​487/2013, the legislator took care to include the requirement for a prior list of members of the entire B2B Lead foreign corporate structure, with name, nationality, profession and domicile, so that the foreign company establishes itself in the country (article 220, PL 487/2013) or becomes a partner of a Brazilian company (article 143, PL 1,572). As if that were not enough, all documents must be authenticated and legalized at the Brazilian consulate at the respective headquarters and accompanied by a translation into the vernacular. In other words, the legislator, light years from the reality of international business practices, seeks to take even more of the entrepreneur's time to register a company.

And the absurdities don't stop there. In article 317 of the Chamber's Bill, the Public Prosecutor's Office is given the possibility of requesting the annulment of the legal transaction due to non-compliance with the social function. Being a completely indeterminate legal concept, not pacified in doctrine and jurisprudence, it is certain that the institute of the “social function of the company” will bring more legal uncertainty to contractual relations between entrepreneurs. If it is already up to the Public Ministry to act in defense of diffuse and collective interests, what is the purpose of adopting such a dubious term, subject to discretionary interpretations? The question remains.



But they cannot be reproached at all. PL 487, for example, finally provides for transnational bankruptcy and legal cooperation between national and foreign courts in the country. The Senate project reduces the bureaucratic constraints that currently exist, eliminating the need for sworn translation (article 1,061, paragraph 1) and the intermediation of a diplomatic body in procedural communications. The national judge himself, proficient in the language of the foreign court, is allowed to communicate freely, simply by translating himself into the case file.