Introduction
The filing of a request for a Court-Supervised Reorganization and the selection of the competent venue cannot be treated as mere instruments of convenience or opportunistic strategy by the Debtor in distress.
Jurisdiction as a clear and objective criterion that cannot be used as a subterfuge to serve the individual interests of Debtors
Although the concept of forum shopping is originally rooted in International Law, the strategic choice of forum for convenience, under a new guise and through extensive interpretation, may also affect the interests of those involved in the filings of Court-Supervised Reorganization proceedings. Law No. 11.101/2005, in art. 3, establishes that: jurisdiction to grant court-supervised reorganization lies with the court of the location of the debtor’s principal place of business.
In the work Forum Shopping in International Adjudication: The Role of Preliminary Objections, the expression forum shopping represents a pejorative way of describing the conduct of a litigant who, taking advantage of normative permissiveness or weakness, chooses the jurisdiction that, in their perception, is more likely to deliver a favorable ruling. As LORD SIMON stated:
“Forum shopping is a dirty word: but it is only a pejorative way of saying that, if you offer a plaintiff a choice of jurisdictions, he will naturally choose the one in which he thinks his case can be most favorably presented; this should be a matter neither for surprise nor for indignation” (LORD SIMON, 1973 apud SALLES, 2014, p. 29).
In a recent case involving Court-Supervised Reorganization, a group of Rural Producers filed their first request for court-supervised reorganization in November 2023, before the Court of Justice of Mato Grosso, expressly stating in the reasons for the request that that state was where their main activities were located. Although the Court of Justice of Mato Grosso granted the Court-Supervised Reorganization, in view of the filing of several appeals by the creditors indicating documentary flaws, the effects of the decision to grant the process were revoked and, subsequently, by means of a sentence, the procedure was extinguished on August 5, 2024 without resolution of the merits.
Surprisingly, only nine days after the dismissal decision, and without any factual change or corporate reorganization, on August 14, 2024, the same group of Rural Producers filed a new request for Court-Supervised Reorganization, however, before the Court of Justice of Goiás, alleging that their principal place of business was now located in that state. The proceedings were conducted under seal, and access was granted to interested parties only upon the approval of the new request for Court-Supervised Reorganization. The decision was based on the preliminary verification report, pursuant to art. 51, §5 of Law No. 11.101/2005, which asserted that the State of Goiás had jurisdiction to process and rule on the new petition, disregarding the prior proceedings that had taken place in the State of Mato Grosso. However, the underlying objective of the Rural Producers under Court-Supervised Reorganization was clear: to engage in forum shopping as a means to circumvent the previous unfavorable decision rendered by the Court of Justice of Mato Grosso.
When ruling on Interlocutory Appeal No. 6016586-88.2024.8.09.0051, filed by the Creditor Banco John Deere S.A., duly represented by the law firm Ernesto Borges Advogados, the Court of Justice of Goiás, despite the advanced stage of the proceedings and the preliminary verification report submitted by the court-appointed expert, rightly held that the concrete elements pointed to the State of Mato Grosso as the competent forum. During the judgment session, it was established that most of the Farms, assets, and Creditors were located within the territory of Mato Grosso. The decision rendered during the hearing, although diverging from the original rapporteur’s opinion, was upheld by the majority of the Chamber’s Appellate Judges, as reflected in the excerpt from the hearing minutes (5/27/2025).
Appellate Judge “Rodrigo de Silveira rendered his opinion diverging from the rapporteur, to admit the interlocutory appeal and grant it, declaring the lack of jurisdiction of the State Court of Goiás in this matter. Consequently, the other issues were rendered moot, and the transfer of the main proceedings and its related incidents was ordered to the judicial district of Rondonópolis, in the State of Mato Grosso, a position which was followed by the Appellate Judge Sirlei Martins da Dosta, the appellate judge Vicente Lopes was in the minority – our emphasis.
The conduct of the Rural Producers, besides being in violation of art. 3 of Law No. 11.101/2005, also breaches art. 43 of the Code of Civil Procedure:
Art. 43. Jurisdiction is determined at the time of filing or distribution of the initial petition, and subsequent changes in factual or legal circumstances are irrelevant, except when they eliminate a judicial body or alter absolute jurisdiction – our emphasis.
The precedents of the Superior Court of Justice are equally clear on matters of reorganization:
(…) The competent court to process and adjudicate bankruptcy petitions and, consequently, reorganization requests, is the court of the district where ‘the vital center of the debtor’s main activities is located (…) (STJ – CC: 37736 SP 2002/0155087-3, Rapporteur: Justice NANCY ANDRIGHI, Date of Judgment: 6/11/2003, S2 – SECOND SECTION, Date of Publication: DJ 8/16/2004 p. 130) – our emphasis.
(…) 2. According to art. 3 of Law No. 11.101/2005, the competent court to hear a court-supervised reorganization request is the court of the jurisdiction where the debtor’s principal place of business is located, understood as the location of the debtor’s most significant business activities – that is, the place with the highest volume of operations and the center of governance of those activities. 3. This understanding is even more appropriate when dealing with large business corporations engaged in complex economic activities involving the production and distribution of goods and services (…) (STJ – CC: 189267 SP 2022/0185133-4, Date of Judgment: 9/28/2022, S2 – SECOND SECTION, Date of Publication: DJe 10/13/2022) – our emphasis.
Excerpt from the majority opinion: (…) Forming a coherent procedural and substantive system, the principal establishment must be determined at the time of filing or distribution of the petition, and the competent court is thereby fixed for the purposes of the court-supervised reorganization law. (…) Furthermore, although this is not the case in the present case records, a different conclusion – that competence should change whenever there is a corresponding shift in the location of the highest business volume – would open the door to manipulations of the natural jurisdiction and potentially hinder the progress of the reorganization itself. Indeed, the debtor, as the manager of the business, holds the potestative right to centralize activities in different locations during the course of the proceedings, but does not have the authority to alter the jurisdiction already established. (STJ – CC: 163818 ES 2019/0040905-6, Rapporteur: Justice MARCO AURÉLIO BELLIZZE, Date of Judgment: 9/23/2020, S2 – SECOND SECTION, Date of Publication: DJe 09/29/2020) – our emphasis.
The decision rendered by the Court of Justice of Goiás not only upheld the already established understanding but also reinforced the need to curb maneuvers that undermine the reorganization system, such as the Debtors’ attempt to seek a forum perceived as more favorable to the protection of their interests. This stance prevents the corruption of procedural logic and violations of the fundamental principles of natural jurisdiction, legal certainty, and procedural good faith.
Conclusion
It is therefore concluded that, although Rural Producers may carry out their activities in different locations, this does not grant them the freedom to choose, at their sole discretion, the forum that seems most convenient when resorting to the Court-Supervised Reorganization process. In the case analyzed, the attempt to redirect the Court-Supervised Reorganization proceeding to another state, only nine days after the dismissal of the first case, amounted to abusive conduct.
It is imperative to uphold the Courts’ understanding to prevent what International Law calls forum shopping from becoming a recurring tactic in Court-Supervised Reorganizations, especially among Rural Producers, whose dispersed operational model cannot serve as a pretext for manipulating the natural jurisdiction and the competence assigned by Law No. 11.101/2005, with the purpose of seeking a Regional Court under the crafty expectation of obtaining rulings favorable to their individual interests.
Sources.
SALLES, Luiz Eduardo. Forum shopping in international adjudication: the role of preliminary objections. Cambridge: Cambridge University Press, 2014.
MORAES, Alexandre de. Direito Constitucional. 15. ed. São Paulo: Editora Atlas, 2004
XAVIER, Mateus Fernandez. Article: Forum shopping, a legal phenomenon in the post-Cold War era. RIL Brasília a. 53 n. 210 Apr./Jun. 2016 p. 181-201.
ARAUJO, Nadia. 55. O Novo Código de Processo Civil e a Arbitragem Internacional In: ALVIM, Teresa; JR, Fredie. Doutrinas Essenciais – Novo Processo Civil – Teoria Geral do Processo I. São Paulo (SP): Editora Revista dos Tribunais. 2018.
Available in: https://www.migalhas.com.br/quentes/433751/por-foro-inadequado-tj-go-manda-acao-de-recuperacao-a-mt
Autor: Jhonatan Luis Marques Poiana • email: jhonatan.poiana@ernestoborges.com.br
