Minister Raúl Araujo, of the Supreme Court of Justice (STJ), accepted on Friday night a request by German bank Deutsche Bank not to make a judicial deposit of R$168.032 million for Ambipar, the company subject to judicial recovery. The Deutsche Bank’s request was anticipated by Lauro Jardim’s column, from globe.
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With the decision of the Third Court, the obligation set by the Rio Court of Justice (TJ-RJ) for the bank to immediately deposit the amount to the EMS was suspended.
For the Minister, the bank letter of guarantee submitted in lieu of the deposit (in the amount of R$218.4 million, approximately 130% of the amount) must be accepted provisionally until the dispute is analyzed by an arbitration chamber.
The Minister states in the decision that the application of the fine in case of non-compliance – twice the value of the deposit, R$ 336 million – could cause “irreparable damage to the party.” Araujo also stated in the order that the current bank letter of guarantee is equivalent to funds for judicial filing purposes.
According to the TJ-RJ decision, the fine will already be applied if the deposit is not made by next Monday, December 1st.
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The decision also stipulates that analysis of the matter must be suspended “until the establishment of the competent arbitration court, which shall undertake the final decision on all precautionary measures related to the dispute.”
Pinheiro Neto and Bermudez Advogados acted in defense of the bank. When contacted, Ambibar said she would not comment on the decision.
Ambipar and Deutsche Bank have been in dispute since September 25. The heart of the whole crisis at EMS began with a US$35 million loan from Deutsche Bank.
The German bank will demand the payment of guarantees linked to the contract, which may be a reason to expect debts of up to 10 billion Brazilian reais with financial institutions in the market. Therefore, Ambibar requested an injunction from a Rio de Janeiro court on September 25 to avoid the enforcement of guarantees with creditors.
The decision was taken due to the company’s claim that it did not have the necessary cash to fulfill additional payments on the contracts it had with the German bank. At the time, Ambipar stated that the amount should be R$60 million.
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On October 30, the Fluminense Court accepted the restitution request. Also that month, Ambibar requested, in a court order, that R$168 million be deposited in court as security for contracts with the German bank.
TJ-RJ accepted the company’s request, and the fine in case of non-compliance was estimated at twice the value of the deposit, namely R$336 million. Deutsche Bank appealed and requested that the deposit be replaced with a bank guarantee. With the refusal, the bank then appealed to a third court to replace the obligation.
The minister explained in Friday’s decision that since there is an arbitration clause between the company and the bank, the process must move to an arbitration court.