Domingos Refinetti foi uma das fontes consultadas em matéria recente do principal portal global sobre falência e reestruturação, o Global Restructuring Review, sobre o maior caso de falência da América Latina.

19 de junho de 2019

Fonte: Global Restructuring Review

A São Paulo court has named Alvarez & Marsal as judicial administrator to Brazilian construction company Odebrecht, approving the largest bankruptcy filing in Latin American history.

On 18 June, Judge João de Oliveira Rodrigues Filho of the 1st Bankruptcy Court of São Paulo accepted the judicial reorganisation filing made by holding company Odebrecht SA and 20 related entities a day earlier.

Odebrecht filed to restructure US$13 billion in debt, but the bankruptcy filing put the debtors’ total liabilities at US$25 billion. That puts the filing ahead of the US$20 billion bankruptcy of Brazilian telecom company Oi, which started in 2016 and closed in January after years of legal disputes in several different countries.

The court appointed Alvarez managing director Eduardo Seixas in São Paulo as judicial administrator and gave the company 60 days to submit a restructuring plan.

The court also accepted Odebrecht’s request for an injunction preventing its creditors – a list of which can be found here – from taking over certain assets including its controlling stake in petrochemical company Braskem, which Odebrecht tried and failed to sell to Dutch chemical company LyondellBasell just two weeks ago.

The Braskem stake is Odebrecht’s main asset and contributed to 79% of its revenues last year, so Odebrecht said its stake in the company is essential to complete a restructuring.

E.Munhoz Advogados partners Eduardo Secchi Munhoz and Carolina Machado Letizio Vieira, along with associates Ana Elisa Laquimia de Souza and Danilo Domingues Guimarães in São Paulo, were named as counsel to Odebrecht in the filing.

The 21 debtors form a network of holding companies. But the filing does not include Odebrecht’s main business operations, such as construction unit Odebrecht Engenharia e Construcao (OEC), ethanol subsidiary Atvos, or Braskem itself.

OEC is already pursuing a US$3 billion debt restructuring with bondholders, while Atvos filed for bankruptcy protection on 29 May. As well as acting as judicial administrator to Odebrecht, Alvarez had already been appointed in the same role for Atvos.

After the failed Braskem sale, Latin Lawyer’s sister publication Global Restructuring Review (GRR) reported the possibility that Odebrecht may have to file for judicial reorganisation. counsel at Wongtschowski & Zanotta Advogados counsel Domingos Refinetti, who is not working on the case, told GRR at the time that Odebrecht may also have to file for Chapter 15 recognition in the US and possibly for other protective measures in foreign courts.

Braskem has been unable to pay dividends since April, when a Brazilian court hit it with an asset-freezing order to pay environmental damage costs. The company has also agreed to pay US$733 million to Brazilian authorities and state-owned oil company Petrobras to settle corruption charges.

Odebrecht has been dealing with the fallout of Brazil’s Lava Jato (Car Wash) corruption scandal for the past four years, leading it to pursue several separate restructuring initiatives.

In April 2016, Odebrecht’s former CEO Marcelo Bahia Odebrecht went to jail for corruption and money laundering. In December of that year, Odebrecht and Braskem agreed to pay US$3.5 billion in fines to US, Brazilian and Swiss authorities for paying bribes to win construction contracts in 12 Latin American countries.

Since then, companies in the Odebrecht group have signed numerous similar agreements with authorities in a host of other countries including Ecuador, Guatemala, Panama, the Dominican Republic and Peru, as well as with the World Bank.

The group’s sugar and alcohol division, Odebrecht Agroindustrial, completed a US$3.3 billion out-of-court restructuring in July 2016, and offshore drilling arm Odebrecht Óleo e Gás (OOG) dealt with its US$4.7 billion debt pile in May 2017. The OOG restructuring was Brazil’s largest ever extrajudicial restructuring and required Chapter 15 recognition in New York.