In an interview published on the Consultor Jurídico website, our specialist in Judicial Recovery, Dr. Camila Crespi, comments on the new figure in bankruptcy proceedings proposed by the government.
The Bill, sent by the federal government to the National Congress, which proposes changes to Law 11.101/05, has generated debate among experts. The creation of the fiduciary manager, with functions similar to those of the judicial administrator and already provided for in the Law in question, is one of the main proposals, but has faced resistance from some professionals in the legal field.
For Camila, the creation of the fiduciary manager does not bring major changes, since part of his/her duties are already performed by the judicial administrator. However, she highlights that the Bill could represent an opportunity to improve the performance of judicial administrators.

Last week, the federal government sent a bill to the National Congress that seeks to improve bankruptcy processes. One of the main suggestions is the creation of a fiduciary manager, responsible for managing the bankruptcy and selling assets to pay creditors. This idea, however, was not well received by experts on the subject, who believe that the new measure could become an additional complication and that the text of the bill raises more questions than solutions.

The project proposes changes to the Bankruptcy Law, which is from 2005 and went through a extensive reform in 2020. According to the justification given by the Ministry of Finance, the aim of the proposals is to speed up bankruptcy processes and give more power to creditors.

The fiduciary manager, chosen by creditors through an assembly, appears to replace the judicial administrator — already responsible for the collection, evaluation and sale of assets —, who is appointed by the judge.

Riot in sight

In the judge's understanding Clarissa Somesom Tauk, of the 3rd Bankruptcy and Judicial Reorganization Court of São Paulo, the bill government, especially with regard to the role of the fiduciary manager, “does not guarantee efficiency or improvement in the bankruptcy scenario”. Furthermore, she believes that the text makes the mistake of giving excessive power to some actors in the bankruptcy process.

“The text ends up allowing the largest creditors — such as banks and the Public Treasury — to control all aspects of the bankruptcy, including deciding how the assets will be sold. For example, if Bank X holds 50.1% of the bankruptcy credits, it will be able to dictate the course of the process,” commented the judge. “Obviously, since the Bankruptcy Law contains rules of public order, which aim to protect the most vulnerable creditors, these situations will require indispensable judicial control of legality, which, in turn, will inevitably lead to questioning by appeal, which could hinder and delay the procedural flow. Instead of efficiency, we will have procedural chaos.”

According to the lawyer Livia Gavioli Machado, partner at Ativos Administração Judicial e Consultoria Empresarial, a company specializing in insolvency, the functions proposed for the fiduciary manager are the same as those already performed by the judicial administrator.

For her, this “seems to be counterproductive”, as it does not generate benefits for creditors — it only brings “more burdens and charges in carrying out acts already included in the law”.

Furthermore, Lívia considers that the PL does not make clear the manager's position regarding the “pursuit of possible deviations and fraud, which can be of great value in bankruptcy proceedings, aiming at the collection of valuable assets to pay off credits”.

The lawyer Cybelle Guedes Campos, partner at the firm Moraes Jr. Advogados, specialized in corporate restructuring, agrees that the role of the fiduciary manager “is already largely performed today by the judicial administrator”.

She sees a setback in the text sent by the government to Congress, as she believes that judicial administrators already perform their duties very well. “The problems in the bankruptcy process are not with the judicial administrator,” the expert points out.

According to Cybelle, the biggest problem regarding this issue is the excessive judicialization of “many things that could be done extrajudicially”, as a result of the current legislation. Therefore, the lawyer sees no reason to create a new entity in the bankruptcy process.

Other points highlighted by her are the lack of clarity regarding limitations on the fiduciary manager's fees and the lack of minimum requirements to perform such a role. Cybelle emphasizes that the changes made in 2020 to the Bankruptcy Law “were not even tested”, which weakens the search for new changes.

Regarding the manager's fees, Judge Clarissa Tauk also considers the lack of a limit on these amounts to be a mistake. “A professional chosen by the largest creditors and paid by these same creditors without a limit on fees!” she highlighted.

Already Camila Crespi, a lawyer at Luchesi Advogados and a specialist in corporate restructuring, believes that the creation of the fiduciary manager “does not bring about major changes”, precisely because part of the role of this figure is already performed by the judicial administrator. Even so, she believes that the Bill “could improve the role of judicial administrators”.

In her view, the latest changes in legislation have already brought the agility that the bankruptcy procedure needs, such as the 180-day deadline for the sale of assets. According to Camila, speed and transparency “depend on all players”: the Judiciary, the judicial administrator, the bankrupt company and creditors.
The lawyer does not see the government's proposal as synonymous with greater security. “If the bill does not fill the existing gaps, it could be a real setback.”

More problems

Lívia draws attention to a section of the Bill that removes, in the general meeting of creditors, the right to vote of classes of creditors for whom there is no expectation of any payment in the bankruptcy plan.
According to her, it is “reckless to measure what the final value to be received from the sale of assets would be, even if conservatively”.

For Camila, this idea does not bring “equality of creditors, which the institute should foresee”, but gives greater power to those who have significant credits — generally, banks and the Tax Authorities.
She also highlights that the PL presented by the government “aims only and solely to give greater power to the Tax Authorities”, which are one of the creditors in bankruptcy proceedings, but do not have much prominence in judicial recoveries.

Counterpoint

On the other hand, lawyer Fernanda Sanches, partner at the firm Salles Nogueira Advogados and specialist in Business Law and civil litigation, sees positive points in the PL.

She acknowledges that the text has “some aspects that are not so in-depth”, but considers that it “represents an improvement in the participation of creditors, as well as it can and should provide greater speed to bankruptcy proceedings”.

For Fernanda, the possibility of the general meeting of creditors appointing a fiduciary manager “should enable greater effectiveness in the management of the bankrupt estate’s resources and essentially in the sale of assets”.

This new figure, according to her, arrives to “provide greater effectiveness (and security) to the liquidation of these assets and the payment of liabilities, in order to, from another perspective, mitigate losses for all parties involved”.

“Nothing is more logical than granting greater governance to creditors in the bankruptcy process”, concludes the lawyer.

Click here to read the proposal in full – PL 3/2024

Source Reproduction: Conjur