Understanding the Role of Abstention in Voting for Judicial Recovery in Brazilian Law

The process of judicial recovery aims to save a company from bankruptcy by renegotiating its debts with creditors. One of the critical aspects of this process is the approval of the recovery plan, which must be analyzed and voted on by the creditors at a general assembly.

A question that may arise during voting is how to treat the abstentions of creditors present at the general assembly. Should they be considered as votes in favor or against the approval of the recovery plan?

According to the Brazilian Superior Court of Justice (STJ) in RESP 1.992.192-SC, in determining the outcome of the vote at the general assembly of creditors, only the votes of those who effectively expressed their approval or rejection of the recovery plan will be counted, not considering abstention for any purpose.

As stated in Articles 42 and 45 of Law No. 11.101/2005, the approval of the judicial recovery plan requires favorable votes from creditors representing more than half of the total value of credits present at the general assembly. However, the law does not specify how to treat the abstention of creditors present at the assembly.

Given this gap in the legislation, it is not possible to assume that a creditor who abstains from voting is consenting to the proposed plan, so as to count their abstention as capable of composing the approval of the judicial recovery plan. In addition, the application of Article 111 of the Brazilian Civil Code, which provides for silence as consent, does not apply in this case, since Law No. 11.101/2005 requires the express and favorable manifestation of creditors for the plan's approval.

Therefore, the appropriate treatment for creditors who abstain from voting is the same as that given to creditors absent from the general assembly. That is, they should not make up the quorum for deliberation, whether by the value of the credit or the number of creditors, as abstention should not influence the outcome of the deliberation for the approval or rejection of the proposal.