According to the Brazilian Observatory of Extrajudicial Recovery, debt renegotiation without direct involvement with the Judiciary has grown by approximately 80% since 2020. This legal mechanism has gained momentum after the companies Raízen and Grupo Pão de Açúcar initiated extrajudicial recoveries to restructure themselves financially.

Lawyer Fabíola Sampaio, a specialist in agribusiness and Business Law, explains that extrajudicial recovery is provided for in law 11,101 of 2005 and is an option for reorganizing debts. “Extrajudicial recovery is provided for by law and is an efficient alternative for rural producers and companies that need to reorganize their debts without resorting directly to the Judiciary. It is a faster, less bureaucratic and more economical mechanism, which allows the debtor to negotiate directly with their creditors and build a solution compatible with the reality of the business”, he says.

Fabíola Sampaio highlights that one of the main differences in relation to judicial recovery is the context in which the Judiciary is activated. While the judicial process begins within the court, the extrajudicial modality prioritizes negotiation preview.

“In extrajudicial recovery, the Judiciary is only activated when the plan is approved. This means that all negotiations happen beforehand, directly with the creditors. This dynamic brings more agility to the process and avoids the bureaucracy typical of a judicial process from the beginning”, he states.

The lawyer highlights that the flexibility to select which debts will be renegotiated can maintain the company’s operations during the restructuring process, focusing on the most critical liabilities. “Unlike judicial recovery, the businessman can include only some classes of creditors in the extrajudicial recovery. This allows us to focus on the debts that really compromise cash flow, without affecting other commitments that continue to be fulfilled normally”, he points out.

The expert also explains that approval of the plan depends on the adhesion of half plus one of the creditors involved. This criterion ensures that the negotiation has collective support and practical feasibility. “Today, legislation allows the plan to be approved with the adhesion of 50% plus one of the creditors of the classes involved. The entrepreneur has up to 90 days to seek this approval, which requires organization and strategic management of the negotiation”, he notes.

When dealing with the profile of companies that can use the instrument, Fabíola Sampaio states that there is no significant restriction. From small businesses to large groups can use the tool, including rural producers.

“Any company can seek extrajudicial recovery, including small companies and rural producers. In states with strong agricultural activity, this tool is especially important, because the sector is subject to variables such as climate, market and financial costs”, he assesses.

The lawyer emphasizes that the moment of decision directly influences the results. Companies that only seek a solution at an advanced stage of a crisis face more difficulties. “Ideally, the businessman should resort to extrajudicial recovery when he begins to realize cash flow difficultiesbefore the situation worsens. When the company waits too long, alternatives become more limited and the recovery process becomes more complex”, he analyzes.

However, Fabíola Sampaio points out that the Brazilian business community’s resistance to legal guidance could compromise the effectiveness of the recovery. Postponing strategic decisions, then, appears as the enemy of the solution.

“It is common for businesspeople to try to resolve the situation alone for a long time, even in the face of clear signs of difficulty. This can harm recovery, because the sooner they call creditors to negotiate, the greater the chances of finding a viable solution”, he considers.

Negotiation and legal security

Fabíola Sampaio explains that negotiations require an accounting and legal team to ensure accurate execution, with satisfactory results. The objective, according to her, is to form an interesting agreement for creditors and dividends. “The company needs to have a team, usually made up of a lawyer and accountant, to structure the plan, identify strategic creditors and conduct negotiations. This technical work is essential to achieve the necessary adherence and consolidate the agreement”, he states.

The lawyer reinforces that the tool guarantees legal security for debtor and creditoras there is judicial validation of the process. “Judicial approval guarantees legal security to the parties. Once approved, the plan becomes a judicial executive title, which allows the creditor to execute the agreement directly in the event of non-compliance”, he says.

According to her, the market has recognized the efficiency of extrajudicial recovery, especially when used preventively. “The market tends to see it positively when the company seeks a solution before entering a deeper crisis. This demonstrates management capacity and willingness to negotiate in a transparent manner”, he points out.

The expert adds that not all debts can be included in the process. Tax and labor obligations follow their own rules and require parallel treatment. “Tax debts are not subject to extrajudicial recovery, but can be negotiated through tax transactions, which occur in parallel. Thus, the businessman acts on two fronts to reorganize his financial situation”, he concludes.

By Enzo Tres