A barreira da ordem pública na insolvência transnacional

Abstract

Brazil internalized in its legal system, through Law no. 14,112/2020, the UNCITRAL Model Law, authorizing the granting of effectiveness in the country to foreign insolvency proceedings. The Model Law has the clear objective of providing a more rational treatment in cases of companies subject to several jurisdictions, so that all processes in these cases are coordinated based on cooperation between countries. To safeguard the legal sovereignty of the countries adhering to the Model Law, an exception was created for the application of transnational insolvency’s rules (Article 167-A, § 4, of the LRF: “The judge may only disapply the provisions of this Chapter if, in the specific case, their application constitutes a manifest offense to public policy”). However, the exception in question can only be applied when there is a manifest violation of public policy. The present work aimed to investigate the scope and format of the public policy exception. To this end, the investigation was divided into two parts. The first was of a general nature, where it focused on evaluating the purposes of the Model Law itself. In a second stage, the treatment of the term 'public policy' in the doctrine of international law was investigated, as well as the evaluation of it in the jurisprudence of the STF and the STJ, in the specific field of the ratification of foreign judgments. After these investigations, the definition of the clause was directly considered, finding a double function in the terms 'only', 'manifest' and 'offense'. In the end, we sought to fill the term 'public policy in the fundamental civilizing advances defined in the Federal Constitution, thus proposing a regulatory model for the application of the barrier clause.