Leite, Tosto e Barros Advogados https://www.tostoadv.com/en/ Uma força no contencioso Tue, 07 Nov 2023 17:28:46 +0000 en-GB hourly 1 https://www.tostoadv.com/wp-content/uploads/2022/04/cropped-ico_ltb-32x32.png Leite, Tosto e Barros Advogados https://www.tostoadv.com/en/ 32 32 Superior Court reinstates possibility of enforcement against shareholders of company under reorganisation https://www.tostoadv.com/en/superior-court-reinstates-possibility-of-enforcement-against-shareholders-of-company-under-reorganisation/ https://www.tostoadv.com/en/superior-court-reinstates-possibility-of-enforcement-against-shareholders-of-company-under-reorganisation/#respond Tue, 07 Nov 2023 17:28:35 +0000 https://www.tostoadv.com/?p=12939 By Paulo Guilherme de Mendonça Lopes and Alexandre Paranhos, published in the International Law Office (ILO) platform In September 2023, the Superior Court of Justice (STJ) issued a significant ruling related to a debt enforcement against shareholders of a company under reorganisation, under Brazilian Law No. 11.101/2005. The decision was reached after a discussion on […]

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By Paulo Guilherme de Mendonça Lopes and Alexandre Paranhos, published in the International Law Office (ILO) platform

In September 2023, the Superior Court of Justice (STJ) issued a significant ruling related to a debt enforcement against shareholders of a company under reorganisation, under Brazilian Law No. 11.101/2005.

The decision was reached after a discussion on whether a Brazilian corporation that is under the reorganisation regime and stay period might have its shareholders deemed responsible for a company’s debt under the application of the “disregard theory”.

In this ruling, the STJ established that the reorganisation regime does not exempt the company’ shareholder from potential enforcement under the “disregard theory”, since the eventual constraint won’t be laid upon the company.

Background

The 1916 Brazilian Civil Code set out the concept of corporate personality into Brazil’s legal system. However, it wasn’t until 1919 that Decree Number 3.708/19 brought the concept of the limited liability for non-natural persons, such as corporations. This decree stated that partners would only be held liable for debts up to the total amount of their shares of the company’s capital.

In 2002, Brazil issued a new Civil Code implementing several noteworthy changes, one of which pertained to the introduction of the “disregard theory”,(1) aimed at preventing fraud or abuse through the misuse of non-natural entities, after years of legal discussions and rulings around two theories for piercing the “corporate veil” (the “major” and “minor” theories).

While the major theory for disregard is related to the review of the partners’ behavior and the practice of fraud, the minor theory admitted the disregard of the corporation, to reach its partners when an entity fails to meet its financial obligations, under certain conditions and legal requirements before the Brazilian Consumer Code.

This minor theory emphasises the practical effectiveness of legal proceedings over the existence of fraud, abuse or confusion.(2)

Facts

The controversy surrounding the special appeal(3) was related to the application of minor theory to disregard a corporation and hold its shareholders accountable, and whether the fact that the corporation is under reorganisation before Law No. 11.101/2005 (being granted the stay period of 180 days) may deter the application.

The STJ reviewed the case law on REsp No. 279.273/SP, by which it was ruled that no proof of fraud or abuse was required for the purpose of minor theory. Under the Brazilian Consumer Code, the supplier’s default was sufficient for the consumer file the disregard claim to demonstrate the supplier’s insolvency, which is an implicit prerequisite, and the fact that the legal personality poses an obstacle to the reimbursement of damages, such as the absence of assets owned by the debtor entity.

The STJ also considered that the type of the corporation, under Brazilian Law, was irrelevant for the minor theory. In case law AREsp No. 1.811.324/DF, the STJ reasoned that the corporate structure of limited companies isn’t an impediment to disregarding the entity in accordance with section 28 of the Brazilian Consumer Code.

The case reviewed in that instance was different from said case law. The case was related to a company that was under the protection of Law No. 11.101/2005 and was under a reorganisation and stay period. That was because Law No. 11.101/2005 was recently updated by Law No. 14.112/2020 that added section 6-C to it, stating that it is not allowed to impose or extend liability to third parties due to the mere non-performance of obligations by the bankrupt or debtor under judicial reorganization, except the cases with related guarantees (eg, mortgage or pledge) or otherwise stated in Law No. 11.101/2005.

Decision

However, the STJ held that section 6-C of Law No. 11.101/2005 was not incompatible or opposite to section 28 of the Brazilian Consumer Code and minor theory. On the contrary, section 28 could still be claimed.

The conclusion reached by the STJ was the following.

Although section 28 can still be applied against companies despite their nature under Brazilian Law, the liability must be limited to those shareholders, officers and managers that held effective control over the company.

Law No. 11.101/2005 intends to enable the reorganisation of the debtor, while the minor theory and section 28 of the Brazilian Consumer Code does not aim for debtors or their assets. It is aimed at those who held effective control over the company.

Comment

The potential liability of shareholders, officers, managers and even members of board of directors in an extremely relevant issue in Brazilian litigation currently. The relevance of the ruling under discussion here aims to alert the impossibility to claim that section 6-C of Law No. 11.101/2005 could “impair” claims under section 28 of the Brazilian Consumer Code.

STJ refereed that these claims should be reviewed on a case-by-case basis, but the liability arising from claims cannot be indiscriminately transferred to shareholders, officers, managers and even members of board of directors that do not hold effective control over the company.

Endnotes

(1) Under section 50.
(2) Confusion is often regarded as the misuse of corporate assets in the partners own behalf.
(3) REsp No. 2034442.

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STJ decides on validity of assignment of credit originating from fines https://www.tostoadv.com/en/stj-decides-on-validity-of-assignment-of-credit-originating-from-fines/ https://www.tostoadv.com/en/stj-decides-on-validity-of-assignment-of-credit-originating-from-fines/#respond Tue, 26 Sep 2023 16:43:54 +0000 https://www.tostoadv.com/?p=12905 Article by Paulo Guilherme de Mendonça Lopes and Alexandre Paranhos, published in the International Law Office (ILO) platform, which outlines the legal provisions that regulate fines (also known as astreintes) in Brazilian law.

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By Paulo Guilherme de Mendonça Lopes and Alexandre Paranhos, published in the International Law Office (ILO) platform

This article outlines the legal provisions that regulate fines (also known as astreintes) in Brazilian law.

Background

Article 536 of the Code of Civil Procedure (CCP) establishes that:

[In] the enforcement of a judgment that recognizes the enforceability of an obligation to do or not to do, the judge may, ex officio or upon request, in order to effect specific relief or to obtain relief for the equivalent practical result, determine the measures necessary to satisfy the plaintiff.

In addition, article 537 of the CCP states that:

Art. 537: The fine does not need to be requested by the party and may be applied in the discovery phase, in a provisional injunction or in the judgment, or in the execution phase, provided that it is sufficient and compatible with the obligation and that a reasonable deadline is set for compliance with the precept.

§ Paragraph 1 The judge may, ex officio or on request, modify the amount or frequency of the fine that is due or exclude it if he finds that:

I – has become insufficient or excessive;

II – the obligor has demonstrated supervening partial fulfillment of the obligation or just cause for non-compliance.

§ Paragraph 2 The amount of the fine shall be due to the creditor.

§ Paragraph 3 The decision that sets the fine is subject to provisional compliance, and must be deposited in court, allowing the amount to be withdrawn after the judgment in favor of the party has become final and unappealable.

§ Paragraph 4 The fine shall be due from the day on which non-compliance with the decision is established and shall be in force for as long as the decision that imposed it is not complied with.

§ Paragraph 5 The provisions of this article shall apply, where applicable, to the enforcement of judgments recognizing duties to do or not to do of a non-binding nature.

Article 814 of the CCP also establishes that:

[In] the enforcement of an obligation to do or not to do based on an extrajudicial instrument, the judge shall, when ruling on the application, set a fine for the period of delay in complying with the obligation and the date from which it will be due”, and the sole paragraph of this legal provision states that “[If] the amount of the fine is provided for in the instrument and is excessive, the judge may reduce it”.

These legal provisions have a wide application, including in injunctions or similar measures.

Facts

In a recent decision, the third panel of the Superior Court of Justice (STJ) recognised the validity of the assignment of credit to a third party. This validity originated from the total number of days of non-compliance with the fine to the non-compliant party in complying with the court order. This stands despite the facts that the judgment that benefited it has not become final.

This occurred on 8 August 2023 at the judgment of special appeal No. 1999671 – PR by Justice Marco Aurélio Bellizze.

In this judgment, several issues were discussed within the scope of the STJ. This discussion ended with an unanimous recognition of the possibility of assigning the credit arising from the imposition of comminatory fines in the following decision:

SPECIAL APPEAL. ENFORCEMENT OF JUDGMENT. ASSIGNMENT OF CREDIT. AMOUNTS ARISING FROM ASTREINTES. POSSIBILITY. DUAL NATURE OF THE PROCEDURAL SANCTION. INCORPORATION INTO THE CREDITOR’S ASSETS FROM THE MOMENT OF ITS INCIDENCE. POSSIBILITY OF ASSIGNING THE RIGHT TO THE CREDIT. SPECIAL APPEAL PARTIALLY RECEIVED AND, TO THAT EXTENT, DISMISSED.

1. The purpose of the appeal is to define whether the assignment of the right to credit arising from astreintes is valid.

2. The fine is eminently coercive in nature, since it is set even before the damage occurs and its main purpose is precisely to prevent it from being imposed, since the debtor’s expected and desirable behavior is that he voluntarily complies with the obligation and that the fine acts only on his will.

. . .

4. Astreintes have features of both substantive and procedural law, since their value will revert to the holder of the right sought in the action and, precisely for this reason, their fate is linked to the success of the claim in which the main obligation or substantive right sought in court is sought, being incorporated into their sphere of availability as a property right, and their credit nature is evident.

5. Therefore, the assignment of the credit arising from the astreintes is valid, since the creditor can assign their credit if the nature of the obligation, the law or the agreement with the debtor does not prevent it and, contrary to what the appellant claims, there is no question of the accessory and very personal nature of the fine.

6. The credit arising from the fine is part of the creditor’s assets from the moment the court order is breached, and can be assigned from that moment on.

It is true that there was disagreement when special appeal No. 1999671 – PR was judged, notably regarding the legal nature of or fines, as well as other issues briefly discussed below. However, this did not alter the outcome of the judgment, which is that the assignment of the right to the original credit for fines is valid.

Decision

The STJ unanimously decided that the assignment of the right to the original comminatory fine to a third party was valid.

To reach this conclusion, the STJ dismissed, without any disagreement, the allegation that “the credit arising from astreintes cannot be assigned due to its accessory and very personal nature, which is why the Assignment of Credit is irremediably null and void”.

Justice Nancy Andrighi’s voted, and was followed by Justice Humberto Martins, that based the most authoritative Brazilian doctrine, fines do not have an indemnity nature, since “unlike indemnity, which aims to recover damage caused to the patrimonial sector of the legal sphere of a given subject of law, fines are aimed at defending the authority of the State itself”. This is a position that is reinforced by article 500 of the CCP, which establishes that “compensation for losses and damages shall be without prejudice to the fine fixed from time to time to compel the defendant to comply specifically with the obligation”.

Justice Nancy Andrighi’s vote also made clear that:

it has already been emphasized in several precedents [of the Superior Court of Justice] the understanding that the fine is not to be confused with compensation, having an inhibitory or coercive character (REsp 1.862.279/SP, Third Panel, DJe 25/5/2020; AgInt in REsp 1.761.086/SP, Second Panel, DJe 25/11/2020; AgInt no REsp 1.685.060/RS, Fourth Panel, DJe 27/11/2019).

Even with the assignment of the claim relating to the mandatory fine, other claims remain with the assignee of that claim.

With the exception of this issue (ie, the legal nature of the fine), the Court converged on the understanding that the freedom to assign credit in Brazilian law is the general rule and article 286 of the CCP(1) establishes the situations in which it would not be possible. These situations are if the following do not preclude this freedom:

  • the nature of the obligation;
  • the law; or
  • the agreement with the debtor.

As Justice Nancy Andrighi made clear in her opinion, there would be no need to talk about:

the very personal nature of astreintes in relation to the creditor, since even if this is changed, the purpose of the fine to sanction the adverse party for non-compliance with a court order will remain intact.

This is why it is much more linked to the debtor than to the creditor.

Furthermore, the fine, given its coercive legal nature, does not have the same nature as the legal relationship that is the subject of the claim where it was determined, and the latter may be non-transferable but the fine is not.

Thus, the credit originating in the fine is part of the creditor’s assets, which is why it could be assigned to third parties, in whole or in part, according to Brazilian law.

Third-party assignees run all the risks of the claim that has been assigned to them, including the very fact that it will not exist at the end of the proceedings, due to the judgment of the proceedings in the opposite direction to that benefited by the fine.(2)

Marco Aurélio Bellizze was right to point out the risks that the assignee of the credit runs in his vote as:

  • the debtor may oppose to the assignee the exceptions that are incumbent on them, as well as those that, at the time they became aware of the assignment, they had against the assignor;(3)
  • in the case of assignment for consideration, the assignor, even if they are not liable, is liable to the assignee for the existence of the credit at the time they assigned it to them, and the same liability applies to gratuitous assignments if they have acted in bad faith(4) just as the assignor is not liable for the debtor’s solvency, unless otherwise stipulated;(5) and
  • the judge may, at any time and even ex officio, modify the amount or periodicity of the fine or exclude it if it has become insufficient or excessive and when the debtor demonstrates the supervening partial fulfillment of the obligation or just cause for non-compliance.(6)

Comment

Given the importance of the decision handed down by the Superior Court of Justice in special appeal No. 1999671 – PR, it is important to disseminate it to support the heated legal and negotiation market for judicialised credits.

Endnotes

(1) Article 286 of the CCP states:

A creditor may assign their credit if the nature of the obligation, the law or the agreement with the debtor does not prevent it; a clause prohibiting assignment may not be objected to by the assignee in good faith if it is not included in the instrument of obligation.

(2) Section 3 of article 537 of the CPC.

(3) Article 294 of the CCP states, “The debtor may oppose to the assignee the exceptions that are incumbent upon them, as well as those that, at the time he became aware of the assignment, they had against the assignor”.

(4) Article 295 of the CCP:

In the case of assignment for consideration, the assignor, even if they are not liable, shall be liable to the assignee for the existence of the credit at the time they assigned it to them; they shall be equally liable in the case of assignment free of charge, if they have acted in bad faith.

(5) Article 296 of the CCP states, “Unless otherwise stipulated, the assignor is not liable for the debtor’s solvency”.

(6) Article 537, section 1 of the CPC/2015 v section 2.

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Leaders League 2023 acknowledges our performance https://www.tostoadv.com/en/leaders-league-2023-acknowledges-our-performance/ https://www.tostoadv.com/en/leaders-league-2023-acknowledges-our-performance/#respond Thu, 08 Jun 2023 19:58:54 +0000 https://www.tostoadv.com/?p=12784 The international publication Leaders League has released the 2023 results for the litigation sector, and once again, Leite Tosto e Barros has been recognized for the excellence of its work in the areas of Large-Scale Labor Litigation, Arbitration and Civil and Commercial Litigation. Our partners have also been referenced in each of these areas! Partner […]

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The international publication Leaders League has released the 2023 results for the litigation sector, and once again, Leite Tosto e Barros has been recognized for the excellence of its work in the areas of Large-Scale Labor Litigation, Arbitration and Civil and Commercial Litigation. Our partners have also been referenced in each of these areas!

Partner Luciana Arduin Fonseca was mentioned in Large-Scale Labor Litigation category. Partners Paulo Guilherme de Mendonça Lopes and Alexandre Paranhos were mentioned in the Arbitration category. Partners Ricardo Tosto, Paulo Guilherme de Mendonça Lopes and Rodrigo Quadrante were listed in the Civil and Commercial Litigation practice.

Leaders League is one of the leading legal rankings in the market, classifying the best law firms and lawyers worldwide. You can find the full list here:
leadersleague.com/en/firm/leite-tosto-e-barros-advogados/

We would like to express our gratitude to our clients and partners for their continued trust and support!

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Our partners are among the Most Admired Lawyers in the Análise Advocacia Mulher 2023 https://www.tostoadv.com/en/our-partners-are-among-the-most-admired-lawyers-in-the-analise-advocacia-mulher-2023/ https://www.tostoadv.com/en/our-partners-are-among-the-most-admired-lawyers-in-the-analise-advocacia-mulher-2023/#respond Thu, 08 Jun 2023 19:55:45 +0000 https://www.tostoadv.com/?p=12783 In the 2023 edition of the Análise Advocacia Mulher 2023 ranking, Leite, Tosto e Barros is listed among the top 30 full-service law firms in São Paulo with the highest female representation. Our partners Luciana Arduin Fonseca, Renata Araújo and Paula Padilha Cabral Falbo have received a total of 10 recognitions, highlighting their expertise in […]

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In the 2023 edition of the Análise Advocacia Mulher 2023 ranking, Leite, Tosto e Barros is listed among the top 30 full-service law firms in São Paulo with the highest female representation.

Our partners Luciana Arduin Fonseca, Renata Araújo and Paula Padilha Cabral Falbo have received a total of 10 recognitions, highlighting their expertise in various sectors such as Electric Energy, Technology and Pulp and Paper, as well as legal specialties including Labor, Regulatory and Environmental Law.

For more information, please visit:
analise.com/noticias/analise-editorial-lanca-o-analise-advocacia-mulher-2023

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Tax Bulletin: Brazilian Supreme Court exempts capital gains on inheritance or donations taxed by ITCMD from income tax https://www.tostoadv.com/en/tax-bulletin-brazilian-supreme-court-exempts-capital-gains-on-inheritance-or-donations-taxed-by-itcmd-from-income-tax/ https://www.tostoadv.com/en/tax-bulletin-brazilian-supreme-court-exempts-capital-gains-on-inheritance-or-donations-taxed-by-itcmd-from-income-tax/#respond Thu, 08 Jun 2023 19:53:55 +0000 https://www.tostoadv.com/?p=12782 In a recent decision, ARE 1387761, the Brazilian Supreme Court (STF) has exempted the applicability of income tax on capital gains resulting from the appreciation of assets transferred by inheritance or donation, already taxed by ITCMD, based on the understanding that this would constitute double taxation. Usually, the National Treasury requires Income Tax on the […]

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In a recent decision, ARE 1387761, the Brazilian Supreme Court (STF) has exempted the applicability of income tax on capital gains resulting from the appreciation of assets transferred by inheritance or donation, already taxed by ITCMD, based on the understanding that this would constitute double taxation.

Usually, the National Treasury requires Income Tax on the gain earned at the time of transfer of the asset. In this regard, it argues that it is not a case of double taxation, since the taxable event of the income tax on capital gains is not the donation (as it is subject to ITCMD), but rather the appreciation resulting from the gain earned on the donated asset, for market parameters.

On the other hand, Justice Luis Roberto Barroso, as the rapporteur in the case, in the AgRg in ARE 1.387.761, states that the income tax is levied on on the available economic or legal increase in net worth. In the anticipation of legitimate inheritance, therefore, there is no increase in available net worth for the donor, but rather a loss of net worth, reason why any incidence of income tax against it is not justified.

Thus, it must be considered that, with the donation, the donor disposes of his assets, a legal fact that does not generate the acquisition of economic availability. Therefore, deferring the payment of the tax on the asset increase until after the transfer of the asset, to impose it on the donor, violates the principles of personal capacity and economic capacity established in Article 145, § 1 of the Federal Constitution.

Furthermore, it should be emphasized that the taxpayer is granted, by article 32, of Law No. 9.532/97, the option to inform their assets at market value or historical value, initially mentioned in the income tax return. In this regard, if the taxpayer opts to donate to a third party – for the amount of R$200,000.00 – an asset worth R$500,000.00 on the market, they cannot be required to pay income tax on the gain accumulated in this transaction.

Therefore, due to these new precedents, it can be concluded that the understanding on this matter in the Supreme Court is divided, with no clear prospect of uniformity yet.

Leite, Tosto e Barros Advogados’ Tax team is available to provide you with any further information you may need.

*This newsletter had the collaboration of Andreza Speeden and partner Carlos Crosara.

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Income Tax Return for individuals 2023 – RFB No. 2,134/2023 https://www.tostoadv.com/en/income-tax-return-for-individuals-2023-rfb-no-2134-2023/ https://www.tostoadv.com/en/income-tax-return-for-individuals-2023-rfb-no-2134-2023/#respond Thu, 08 Jun 2023 19:52:22 +0000 https://www.tostoadv.com/?p=12781 On February 27th, 2023, the Brazilian Federal Revenue Office (“RFB”) published RFB Normative Instruction No. 2,134, which governs the Annual Adjustment Declaration of Personal Income Tax (“Income Tax Return”) for fiscal year 2023 (calendar year 2022). The main change this year concerns the filing deadline, which starts on March 15 and ends on May 31, […]

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On February 27th, 2023, the Brazilian Federal Revenue Office (“RFB”) published RFB Normative Instruction No. 2,134, which governs the Annual Adjustment Declaration of Personal Income Tax (“Income Tax Return”) for fiscal year 2023 (calendar year 2022).

The main change this year concerns the filing deadline, which starts on March 15 and ends on May 31, at 11:59:59 pm. According to the Normative Instruction, Brazilian residents who, in 2022, fell into any of the following situations are obliged to present their Income Tax Return:

  1. Received taxable income subject to adjustment in the declaration, with a total sum exceeding R$ 28,559.70;
  2. Received exempt income, non-taxable or taxed exclusively at source, with a total sum exceeding R$ 40,000.00;
  3. Obtained capital gains from the sale of assets or rights subject to the levy of Tax;
  4. Engaged in transactions on stock exchanges, commodity exchanges, futures markets, or similar operations: (a) with a total sum exceeding R$ 40,000.00; or (b) with the calculation of net gains subject to the incidence of the tax;
  5. Obtained gross revenue from rural activity exceeding R$ 142,798.50 or intends to offset losses from previous calendar years or from the 2022 calendar year;
  6. Had, on December 31, the possession or ownership of assets or rights, including bare land, with a total value exceeding R$ 300,000.00;
  7. Became a resident in Brazil during any month and remained in this condition on December 31; or
  8. Has opted for the exemption of Income Tax on capital gains from the sale of residential property, provided that the proceeds from the sale were invested in the acquisition of another residential property located in the country, within 180 days from the sale.
    The declaration must be filled out and submitted through the Income Tax Generator Program, available on the RFB website (https://www.gov.br/receitafederal), starting from March 9, 2023.

Taxpayers who possess gold or silver digital identity can file their Income Tax Return using the program “My Income Tax”, available on the RFB website and via mobile application, provided they do not incur in any of the prohibition provided in article 5 of IN RFB 2134/2023, for example, cases of receiving income from abroad, subject to exclusive and/or definitive taxation, exempt and non-taxable, and income derived from agricultural activities.

This year the taxpayer can once again benefit from the convenience of pre-filled out declaration, which automatically include information previously provided by legal entities in DIRF, DIMED, DIMOB, and Carnê-Leão, among others.

Another novelty for the fiscal year 2023 is the priority in the refund of overpaid tax to taxpayers who use the pre-filled out declaration or opt for the refund via PIX (only permitted with the CPF key). These taxpayers will be prioritized after the legal priority refunds have been processed.

Leite, Tosto e Barros Advogados’ Tax team is available to provide guidance on this matter.

*This newsletter had the collaboration of lawyer Maria Luiza Ferreira de Oliveira and partner Sérgio Grama Lima.

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We were recognized in Dispute Resolution: Litigation – Chambers Brazil 2023 https://www.tostoadv.com/en/we-were-recognized-in-dispute-resolution-litigation-chambers-brazil-2023/ https://www.tostoadv.com/en/we-were-recognized-in-dispute-resolution-litigation-chambers-brazil-2023/#respond Thu, 08 Jun 2023 19:43:09 +0000 https://www.tostoadv.com/?p=12780 Once again, Leite, Tosto e Barros Advogados has been referenced in Dispute Resolution: Litigation in the Chambers Brazil 2023 Guide (Chambers and Partners). This publication, which highlights the litigation area, evaluates law firms since 1990, identifying the leading players in the legal industry. Our partner Paulo Guilherme de Mendonça Lopes has also received individual recognition […]

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Once again, Leite, Tosto e Barros Advogados has been referenced in Dispute Resolution: Litigation in the Chambers Brazil 2023 Guide (Chambers and Partners). This publication, which highlights the litigation area, evaluates law firms since 1990, identifying the leading players in the legal industry.

Our partner Paulo Guilherme de Mendonça Lopes has also received individual recognition in Dispute Resolution: Litigation, with particular emphasis on his strong expertise in this practice area.

We, from Leite, Tosto e Barros Advogados, would like to thank everyone who was part of this important recognition!

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