ANTT ISSUES REGULATION FOR INDEPENDENT RAILROAD OPERATORS, by Mauro Bardawil Penteado e Letícia Oliveira Lins de Alencar

By establishing the National Solid Waste Policy, Law No. 12,305/2010 has brought undeniable progress to the legal treatment applicable to solid waste management services. Although Law No. 11,445/2007 had already laid down some general guidelines for the provision of basic sanitation services, including solid waste management, as well as cer

INFRASTRUCTURE - Mauro Bardawil Penteado e Letícia Oliveira Lins de Alencar



After intense debate, the National Land Transport Agency (ANTT) approved, on June 5, 2014, Resolution No. 4,348, establishing the Independent Railroad Operator (OFI) Regulation for the provision of railroad cargo transport services not associated with the railroad infrastructure operation.

This regulation is mainly motivated by a need to improve the security level of the new railroad concession model, which should be used under the biddings aimed at the expansion of the existing railroad network.

The Federal Government intends to separate the infrastructure management from the provision of railroad services through this new model. The goal is to implement a policy to unbundle the sector and enable the OFI and the concessionaires already settled to have broad access to the railroad network, thus expanding access opportunities for users. In this context, Valec will be assigned a role of paramount importance. It will be up to this state company to acquire from the new infrastructure management concessionaires, 100% of the operating capacity of these new sections and the idle capacity of current concessionaires, so as to later offer it to interested parties, which must be qualified as OFI.

Since the model is unprecedented in the Brazilian legal system, the Federal Government has used efforts to bring the highest possible degree of safety and attractiveness to potential investors as regards this model’s feasibility. The main statutory rules already issued with this goal include Law No. 12,743/2012, Decree No. 8,134/2013, and Decree No. 8,129/2013.

Resolution No. 4,348 complements the regulatory framework that has been built since the beginning of this new model’s conception.

For this purpose, among other measures, the procedure for granting an OFI authorization, the general conditions of the authorization, the granting period, the events of termination, the conditions of access to railroad infrastructure, the duties, infractions and conditions of contracts between the OFI and Valec, the OFI and users, and Valec and the concessionaires have been reestablished. Many of the doubts that arose along with the new railroad concession model were clarified with the promulgation of the Resolution. As regards the procedures, all legal, economic, financial, tax and technical requirements to be met and informed for the application have been defined. The authorization shall be issued within 120 days after completion of the discovery phase of the process. Moreover, the authorization shall be granted for an indefinite term, subject, however, to periodical relisting.

Today, players can be assured that once an OFI has been granted the authorization, it shall be able to provide railroad cargo transport services between any points in the Federal Railroad Subsystem. This fact is true provided that all standards applicable thereto are met and, notably, those relating to technical and operational conditions of railroad cargo transport services, operational security, rolling stock, health and safety protection of persons and the environment, as well as all social rights of workers.

Even though Resolution No. 4,348 was not the first statutory rule to be issued in order to bring greater legitimacy to the new railroad concession model, it must be recognized that this is an important step towards the implementation of this model. From now on, this should be subject to constant improvements in order to ensure success to the new model.



On October 7, 2014, the new text of Resolution No. 2/2012 of the Administrative Council for Economic Defense (CADE) entered into force. We highlight below the most important changes introduced by the new text:

- New definitions of economic group for investment funds: a specific basis for the purposes of income calculation and another for completion of the notification form;

- Eligibility for summary proceeding: increase from 20% to 30% of the level of market share involving operations with vertical overlap and a new hypothesis involving operations with horizontal overlap resulting in HHI variation of less than 200, provided that it does not generate control of a market share greater than 50%;

- Exclusion of the need for notification of transactions that (i) do not lead to control but give the buyer the status of largest individual investor, and (ii) are performed by the controlling shareholder when the direct or indirect interest acquired by at least one seller individually considered, is equal to, or greater than 20% of the share or voting capital; and

- Clarification on the situations in which the notification of the subscription of securities or securities convertible into shares is mandatory.



The Fourth Chamber of the Superior Court of Justice (STJ) decided by unanimous vote that the Judiciary has jurisdiction solely to examine the legal aspects of judicial recovery plans (e.g., the possible occurrence of fraud or abuse of rights). It is not within the scope of its powers to analyze economic issues on which judges do not usually hold deep and specific knowledge. Such matters should be decided by the creditors at a meeting, by exercising their freedom of will.

In this case, one of the creditors challenged the unfeasibility of a recovery plan, which did not propose the sale of assets. In such creditor’s opinion, it caused severe losses evidenced not only by the excessive period of time elapsed since the start of the judicial recovery application, but also by the conditions provided for in the plan, including a grace period of two years for payment of the debt in installments during 12 years, increased by interest at an yearly rate of 2%.

In so deciding, the STJ confirmed statements 44 and 46 of the CJF-STJ First Congress on Commercial Law. Said statements provide, respectively, that the homologation of the judicial recovery plan is subject to the control of legality, and that the judge cannot refuse to homologate a plan approved by a meeting of creditors and, consequently, refuse to grant judicial recovery based on an economic and financial analysis.

CIVIL LAW – Gustavo Silveira Vieira


As a cultural phenomenon, the civil process has undergone many changes depending on the political organization of each historical moment. The constant evolution of procedural models follows the influence of each society and its respective political regime. Each age’s social aspirations play a decisive role in the determination of an adequate process profile.

Under this perspective and grounded on the Constitutional State, the model of cooperative process has emerged and is even established in the new Civil Procedure Code which is about to be voted in the Senate. This new procedural model is based on an idea of effective collaboration among all the parties involved in the pursuit of a fair decision.

In this contemporary profile of process organization, the parties no longer play an antagonistic role in relation to the judge, but rather the role of collaborators whose objective and subjective good faith are united to achieve a loyal process. However, it must be said that such cooperation does not take place between the parties, because the interests defended by each of them are conflicting. What is expected of litigants is to have a joint debate, thus expanding the framework for analysis and linking the judge to a range of several arguments, favoring the formation of a better grounded decision. The prohibition of contradictory behavior becomes stronger in the new Civil Procedure Code, and the adage venire contra factum proprium indicates exactly such a prohibition.

In the cooperative process model, the judge’s role is reconsidered. The judge must act with equality in relation to the parties – not as a protagonist – strongly stimulating the production of adversary arguments, and being expressly barred from issuing any surprising decision. The parties must be afforded a real opportunity to effectively influence the judge’s decision, and the adversarial principle, whose classical concept has always been the right of defense, undergoes a semantic change in the new Code, where it shall mean a right of influence.

The judge’s role as a mere bouche de la loi ceases to exist, as in the cooperative model he should form along with the parties a procedural triad with open dialogue, aiming at the pursuit of the truth with due consideration of fundamental rights.

The cooperative process model identifies four collaboration duties for the judge towards the parties: the duty of clarification, the duty of care, the duty of consultation and the duty of aid. The new Civil Procedure Code, which is about to be voted in the Senate, encompasses these collaboration duties, following the countries that have already established these concepts in their laws, such as the Zivilprozessordnung (German ZPO) and the very recent Portuguese Civil Procedure Code, in force since September, 2013.