EXTRADIÇÃO 1362 STF: Governo Argentino X Salvador Siciliano (DITADURA MILITAR)

Sessão Plenária STF

Sessão Plenária STF

Trata-se de um caso extremamente complexo e delicado, ao ponto do julgamento na primeira turma do STF ter sido remetido, por decisão unânime, para a apreciação do plenário da Suprema Corte.

O processo em tela trata da ditadura militar argentina nos anos 70 e o desaparecimento de pessoas contrárias ao regime, quando surge o movimento das mães da praça de maio (Madres de Plaza de Mayo).

O Governo Argentino acusou o Sr. Salvador Siciliano (Cliente) de ser o mentor e executor dos atos executados pela TRIPLE A (Aliança Anticomunista Argentina). Ele seria, supostamente, um dos líderes desta organização.

A tese acusatória, embasada em resoluções da ONU e com apoio de movimentos em defesa dos direitos humanos, apontou resumidamente:

a. a natureza de crime lesa humanidade e crime de guerra (massacre, sequestro e tortura);

b. a consequente imprescritibilidade destes crimes;

c. a impossibilidade de anistia para tais crimes.

Nossa defesa técnica refutou sob os seguintes argumentos:

a. a natureza política do movimento Triple A;

b. a posição do Sr. Siciliano como subalterno do Ministério do Bem Estar Social Argentino;

c. a condição de civil e não militar do extraditando;

d. a ausência da dupla tipicidade do crime imputado, vez que nenhum militar brasileiro fora condenado sob as mesmas acusacões;

e. a prevalência da anistia e da prescrição senão da pena, da execução da pena;

f. a precariedade das provas de autoria.

No primeiro dia de julgamento (06/10/2016), o Relator Ministro Edson Fachin votou pela extradição acompanhado do Ministro Roberto Barroso.  O Ministro Teori Zavascki pediu vistas do processo. O plenário retomou a votação ontem (20/10/2016).

Após os votos dos Ministros Teori Zavascki, Rosa Weber, Luiz Fux, Dias Toffoli, Gilmar Mendes e Marco Aurélio, indeferindo o pedido de extradição, e o voto do Ministro Ricardo Lewandowski, deferindo-o, pediu vista dos autos a Ministra Cármen Lúcia (Presidente).

Em seguida, o Tribunal deliberou transformar a prisão do extraditando, atualmente em regime fechado, para prisão domiciliar. Ausente, justificadamente, o Ministro Celso de Mello.

Em suma, vencido o Relator num placar irreversível e vitorioso de 6 X 3para nossa defesa.

O Sr. Salvador Siciliano será colocado hoje em liberdade, após mais de dois anos preso na carceragem da Polícia Federal na Lapa, São Paulo -SP.

Impeachment, Brazil's Currency, and an Opportunity for Importers...

Port of Santos - Brazil

Port of Santos - Brazil

As pointed out on our prior analysis (TIME TO INVEST IN BRAZIL???), today, August 31rst, Brazil’s senate will most probably sacrament the Impeachment of President Dilma Roussef.  Acting president, Michel Temer, will then be officially conducted to office, for his term of presidency, until 2018.  A ruling by senate to maintain Dilma, would be catastrophic in terms of economic stability and also very surprising, given the political scenario.

Again, according to this same prior analysis, we predicted the valuation of Brazilian assets, including commodities, real Estate, as well as the national currency: the Brazilian Real (BRL).  The strengthening of the local currency opens a window of opportunities for importers in Brazil, along with foreign companies willing to export and distribute products and services, as of now.

In the long term, this will also allow local industries to modernize their production facilities, by purchasing new machineries and technologies from abroad.  For the consumers, this will stimulate competition, allowing efficiency.  Hopefully, there will be more options, with better quality and lower prices.  On the macro-economic perspective, this will help Brazil as another tool to hold back inflation (a major concern).

If you are thinking of exporting to Brazil, there are some thoughts that should be taken into consideration.  This analysis will draw an overview with the essential guidelines.  Let’s begin with the opening of the Brazilian economy, back in President Fernando Collor's administration, who was also impeached (ironically, Dilma’s “PT” labor party, played a major role in that process).

The year was 1990, and Brazil was still a closed economy, with local market protection, and many barriers to block importation.  Through Collor’s plan to modernize the Brazilian market, impose a shock of efficiency, and improve product quality (specially in the automotive sector).  Since then, year after year, there has been an increase of import volume to Brazil.

Depending on the type of product or service, there are specific government branches and regulatory agencies involved in the operation.  The following entities must be cited and briefly described:

a)       Brazilian Central Bank (BACEN):  regulates the banking system and monetary policies

b)      Ministry of Development, Industry, and Trade (MIDIC):  aids market and industry development

c)       Brazilian Customs (Alfândega/Receita Federal): control of Brazilian borders and taxes

d)      Ministry of Agriculture: conducts policies to stimulate agri-business sector

e)      ANVISA: Agency that regulates food, drugs and similar products (like the USA’s FDA)

f)        SISCOMEX: manages and registers all foreign trade operations;

g)       SECEX: determines customs tax treatment

As noted, Brazil has a complex structure for trade operations.  There are many laws, decrees, and regulatory instructions that have to be thoroughly complied, in order to avoid fines, confiscation, and other penalties.  To overcome these obstacles, one must study in details the peculiarities of each product or service being introduced to the Brazilian market.

Such procedures should be complied even before the product or service is shipped or delivered to Brazil.  As a pre-requisite, there are licenses requested before the order can even be placed.  In this situation, the importer or agent ordering the product is obliged to register its fiscal and financial capacity at the SISCOMEX, within a system denominated RADAR.

The import licenses are issued by the SECEX, which will review the Invoice description, to check the product or service corresponding coherence.   Once the license is issued by SECEX, it will determine the tax regime treatment applied, together with the currency exchange rate given by BACEN.

When nationalizing the foreign product or service, there are procedures to be taken. It is requested to take mandatory actions and fulfill proper documentations.  The customs forwarding process (known in Portuguese as “despacho aduaneiro”), begins when the customs clearance declaration (guia de importação) is filed. 

The next stage is the customs clearing process, when products and services are subject to import parameters.  These parameters are defined by the following fiscal channels:

1.       Green: cleared

2.       Yellow: document verification requested

3.       Red: document and product verification requested

4.       Gray: document and product verification to evaluate price fraud and other felonies.

Once the products or services are released, the customs broker is notified.  The proof of release is the Import Certificate (CI), printed by the importer, thorough the SISCOMEX.  There are 3 import models in Brazil:

i. Import by Own Account (Importação Própria)

ii. Import by Order of Third Parties (Importação por Encomenda)

iii. Import on Behalf of Third Parties (Importação por Conta e Ordem de Terceiros)

As most of the laws and regulations, change with a frenetic frequency, the importer must be aware and up to date with these changes.  Errors in the Brazilian import process could cause substantial losses.  Within a country of continental dimensions, logistic planning is also a key factor for a successful import and distribution operation.

In summary, these complexities pointed above require qualified professionals, with knowledge and experience, to deviate from potential bureaucratic turmoil.   

We at HMP attorneys will ensure your import and distribution process complies with regulatory protocols in the consulting and planning stage.  In the event of any contingency, we also have the expertise to litigate on your behalf, to guarantee that your rights are respected.  Pay us a visit!

daniel@hmpattorneys.com

www.hmpattorneys.com

TIME TO INVEST IN BRAZIL???

BRAZILIAN ECONOMY HISTORICAL OVERVIEW

 

According to the Brazilian Institute of Geography and Statistics (IBGE), the main sectors contributing to the Brazilian GDP are: the service sector, which generated BRL 901.4 billion in 2014; manufacturing, with BRL 279.6 billion; and agriculture and ranching, which reached BRL 48 billion.

In 2015 there was a collapse of the economy, due to poor governmental management, in addition to corruption scandals (Petrobras/Lava-Jato). These political vectors culminated with Dilma’s removal from office (beginning of the impeachment process)in May 12, 2016.

Today, Brazil still feels the effects of a fierce stagnation process (recession + inflation), with high unemployment and low liquidity.  The market is still unstable, waiting for the final voting by the Senate, that will finalize the impeachment process.

Nevertheless, the new government staff nominated by Temer has caused a promising impression on the market, especially the economic team, lead by Henrique Meirelles (Minister of Finance).  Fiscal adjustments, strict monetary policy, and market oriented liberal approach, have been the key factors for the beginning of the Brazilian recovery.

The tendency is to confirm Michel Temer as the new president, by the final Senate vote, expected by August 31rst (ends impeachment process).  With a busy international agenda, that includes the G20 summit in Beijing (September), Mr. Temner and Jose Serra (Minister of Foreign Affairs) will travel the world in search for foreign investments in sectors of infrastructure, such as: agriculture, logistics, transportation, energy, and IT.

As a clear sign of the recovery to come, IBGE has developed the chart above.  It shows the cycles of deep crisis and quick recoveries in Brazil, since 1904 (historical events).

Brazil is on the verge of what has been called TsuMoney (huge wave of investments and capital flow into the local economy).  As a result, analysts expect the valuation of the Real (Brazilian currency) and domestic assets, such as real estate and commodities, to rise significantly between now and 2020.

If you are thinking of investing in Brazil, we welcome you to…

We are HMP Attorneys, at your service!

Daniel Majzoub

daniel@hmpattorneys.com

 

How to Start your business in Brazil?

THE FISRT STEP...

    The very first step in moving to Brazil is deciding what
type of structure best suits the business. Incorporating a
foreign company’s branches in Brazil is usually a very
time-consuming bureaucratic process. The establishment
of a branch requires prior approval from the federal
government by Presidential decree (articles 1,134 to 1,141
of the Civil Code), which is a very lengthy process. The
federal government must also authorize any amendments
to the branch’s Bylaws. Unlike subsidiaries, branches are
considered to be part of the foreign entity in Brazil. In this
regard, a branch’s foreign controlling company may have
unlimited responsibility for its debts in the event that the
branch is unable to fulfill such obligations. Branches are
subject to Brazilian laws and courts with respect to acts
and transactions that occur in Brazil.
    Given this information, the vast majority of investors in
Brazil adopt the subsidiary model, since their shareholders
are not responsible for the subsidiary’s debts, except for
specific provisions set forth by specific rules.
Once that is established, the investor shall need to decide
which format is more appropriate for his/her business.
The investor could also decide to acquire an existing
company or assets, which would require a due diligence
project. One could also form a Joint Venture, which
could take the form of a Limited Liability company or a
consortium agreement, which is commonly adopted for
relevant infrastructure projects in Brazil. Therefore, the
main decisions will be around incorporating or acquiring
a company. Below both models are described:

INCORPORATE A LTDA. OR A S.A.
    The majority of legal entities incorporated in the
country are either “Limitada” or “S.A.”: a “Limitada”
(Sociedade Limitada or “Ltda.”) – is a limited liability
company, and a “S.A.” (Sociedade Anônima) – is similar
to a corporation. A Ltda. is usually the preferred vehicle
for a wholly-owned subsidiary as it is more flexible in
regards to limitations of liability and is easier to manage.
A S.A. is generally more complex from a compliance and
management perspective. 

REQUIREMENTS FOR ACQUIRING A
COMPANY IN BRAZIL

    If you want to start business in Brazil with an already
operational company, you can acquire a business with
a CNPJ in the country. 
    An acquisition between two companies of the same
nationality is a highly complex process and must be wellplanned.
Therefore, it is necessary to perform careful due
diligence in order to maximize the possibility of success.
In an operation between companies of different
nationalities (cross-border transaction), the due diligence
process is even more important and major care should be
taken in the prior assessment of corporate cultures. This
is mainly regarding the culture of adherence of the key
people who will be destined for the new challenges.
Also, tax issues that arise from acquiring legal entities in
Brazil depend, to some extent, on the residency of both
purchaser and seller. In general terms, capital gains are
taxed in Brazil even in the case of transactions performed
entirely abroad, when the assets (or shares) sold are
located in Brazil.
    Share deals are generally more common than asset deals
in Brazil because even in the case of an asset purchase,
there is a significant risk that the tax liabilities of the
previous business may be attached to the acquired assets.
Additionally, share deals generally result in lower levels
of documentation and indirect taxation for acquirers. A
case-by-case analysis is always recommended for the
company in order to decide the ideal acquisition structure.
When properly structured, the most significant advantage
of a share deal over an asset deal is that the amount (or
part thereof) paid in excess of the target’s net equity may
generate an amortizable premium or goodwill in the tax
base of depreciable or amortizable assets.
    This potentially amortizable step-up is subject to
several tax, legal, accounting, business and substance
requirements, and must be very carefully analyzed and
supported in order to mitigate any risks associated with
such an acquisition structure. (AMCHAM)

Daniel Majzoub

daniel@hmpattorneys.com

 

A Portaria Interministerial 701/2015 derivada da MP 685/2015, hoje convertida em Lei, causa várias arbitrariedades em face de empresas do setor de cosméticos, medicamentos e similares.

Com a publicação desta Portaria, em 31 de agosto de 2015, a ANVISA elevou em torno de 200% os valores da Taxa de Fiscalização de Vigilância Sanitária (TFVS)!

Trata-se de aumento abusivo, além do permitido pelo §1º do art. 8º da Lei 13.202/2015.

Resta aos empresários e empresas lesionados o seguinte:

1.Prevenir-se mediante tutelas de urgência, nos termos do Novo Código de Processo Civil;
e/ou
2. a restituição dos valores pagos indevidamente, na forma do §2º do art. 8 da referida lei.

Vale lembrar que é vedada a tributação de natureza confiscatória!

 

Para maiores informações daniel@hmpattorneys.com

Para maiores informações daniel@hmpattorneys.com