Rechtbank Rotterdam, 29-01-2020, ECLI:NL:RBROT:2020:614, C/10/526115 / HA ZA 17-440

Petrobras is een van de grootste energiebedrijven ter wereld. Zij houdt zich bezig met de productie van olie in ruime zin. Tot de Petrobras Groep behoren onder meer de in Nederland gevestigde vennootschappen PGF, POG en PIB, in welke vennootschappen Petrobras in de hier relevante periode, te weten de periode van 2004 tot en met 2015 (indirect) alle aandelen hield, met dien verstande dat Petrobas sinds juni 2013 (indirect) nog slechts 50% van de aandelen in POG houdt (zie nader onder 2.5)

Ruim de helft van de aandelen in Petrobras is in handen van de Braziliaanse staat.

De overige (gewone en preferente) aandelen in Petrobras zijn genoteerd aan de beurs in São Paulo, Brazilië (Bovespa). Ook op andere beurzen (linked markets) in de wereld vindt handel in haar aandelen plaats, onder meer in Buenos Aires (Argentinië), Madrid (Spanje), Berlijn, Frankfurt en Stuttgart (Duitsland) en Luxemburg (Luxemburg). Haar American Depositary Shares (hierna: ADS's) zijn genoteerd aan de New York Stock Exchange (hierna: NYSE) in de Verenigde Staten.

"Art. 58 - Disputes or controversies involving the Corporation, its shareholders, managers and members of the Audit Board shall be resolved according to the rules of the Market Arbitration Chamber, with the purpose of applying the provisions contained in Law n° 6,404 of 1976, in these Bylaws, in the rules issued by the National Monetary Council, by the Central Bank of Brazil and by the Brazilian Securities and Exchange Commission (Comissão de Valores Mobiliários - CVM) as well as in all further rules applicable to the operation of the capital market in general, in addition to those contained in the contracts occasionally signed by Petrobras with the stock exchange or an organized over-the-counter market entity accredited at the Brazilian Securities and Exchange Commission (Comissão de Valores Mobiliários - CVM), with the purpose of the adoption of corporate governance standards established by these entities and of the respective rules on differentiated practices of corporate governance, if such is the case.

Sole paragraph - The deliberations of the Federal Government through voting in the General Meeting, aimed at guiding the business of the Corporation, as per article 238 of Law n° 6,404 of 1976, shall be deemed as forms of exercising undisposable rights and shall not be subject to the arbitral procedure mentioned in the heading of this article."

Naar aanleiding van (de uitkomsten van) het Lava Jato onderzoek zijn beleggers in Petrobras-effecten, ter verkrijging van schadevergoeding, diverse civiele procedures gestart in onder meer Brazilië en de Verenigde Staten.

In de Verenigde Staten zijn sinds 8 december 2014 class actions aanhangig tegen (onder andere) Petrobras, PGF, [naam gedaagde 1] , [naam gedaagde 2] en een aantal bestuurders c.q. managers van PGF en/of haar rechtsvoorganger (hierna gezamenlijk: de US Class Action). Via de US Class Action willen beleggers die op de beurs in New York aandelen, ADS's of obligaties hebben gekocht, schadevergoeding ontvangen.

"Article 58 of Petrobras' bylaws provides that "disputes [...] involving the Corporation, its shareholders, managers and members of the Audit Board" regarding "the rules issued [...] by the Brazilian Securities and Exchange Commission (Comissão de Valores Mobiliários - CVM) as well as in all further rules applicable to the operation of the capital market in general," "shall be resolved according to the rules of the Market Arbitration Chamber." [...]

Both parties agree that whether purchasers of Petrobras securities on the Bovespa agreed to the mandatory arbitration clause is a question of Brazilian law. [...] The Court is persuaded that, under Brazilian law, Petrobras' arbitration clause is valid and enforceable against purchasers of Petrobras securities on the Bovespa. According to defendants' expert, in 2001 Brazil amended Article 109 of the Brazilian Corporate Law ("BCL") to expressly authorize companies to include mandatory arbitration clauses in their bylaws: "The corporation's bylaws may establish that any disputes between the shareholders and the corporation, or between the majority shareholders and the minority shareholders may be resolved by arbitration under the terms specified by it."

Around the same time, the Bovespa created the so-called "Novo Mercado," a special listing segment that required companies to adopted increased corporate governance standards as a prerequisite to eligibility, one of which was adoption of an arbitration provision in their bylaws. [...] Leading

Brazilian scholars have opined that shareholders manifest their consent to such arbitration clauses by purchasing shares of the company after the arbitration bylaw is enacted, and are therefore bound thereby. [...]

In the wake of these changes, over 160 Brazilian companies have adopted bylaws mandating arbitration of shareholder disputes. [...] One such company was Petrobras, which adopted the arbitration provision in Article 58 of its bylaws in 2002 by Board resolution and shareholder vote. [...]

Petrobras disclosed the existence of this provision to current and prospective shareholders via its annual filings with the SEC. [...]. Because the members of the putative class by definition purchased their shares in or after 2010, they are bound by Article 58.

Moreover, Article 58, by its plain terms, encompasses the Brazilian law claims asserted in Counts III through V of the CAC, which allege violations of the CVM Regulations and other Brazilian laws applicable to securities transactions. These claims are "disputes ... involving the Corporation, its shareholders, [and] managers" arising from "the rules issued ... by the Brazilian Securities and Exchange Commission (Comissao de Valores Mobiliarios - CVM) as well as in all further rules applicable to the operation of the capital market in general." [...] Accordingly, plaintiffs are bound to arbitrate these claims.

Plaintiffs' arguments to the contrary are not persuasive. First, plaintiffs' expert argues that the Brazilian Arbitration Act provides that a party is bound by an arbitration clause contained in a contract of adhesion only if that party either initiates the arbitration or expressly agrees in writing to be bound [...] However, defendants’ expert persuasively demonstrates that the weight of authority holds that the provisions of the BAA regarding adhesion contracts apply to contracts of unequal bargaining power, such as consumer contracts, and not to arbitration provisions contained in corporate bylaws [ ]

Second, plaintiffs' expert opines that an arbitration clause must be approved unanimously at the shareholder meeting at which it is adopted in order to bind all shareholders. [...] However, Article 136 the BCL provides a general rule that “resolutions of a general meeting shall be passed by a simple majority of votes.” [...] Articles 221 and 294 of the BCL specify certain corporate changes that require unanimous agreement of the shareholders, of which adoption of an arbitration clause is not one [...]

Third, plaintiffs' expert argues that Article 58 was not validly adopted because the meeting agenda published in advance of the shareholders' meeting did not provide adequate notice of the proposed amendment. [...] However, the agenda for the March 22, 2002 shareholders’ meeting, at which Article 58 was approved, notified shareholders that a vote would be held on the reform of the Company’s bylaws to promote “changes to enhance corporative governance practices and to move toward fulfillment of requirements for listing in Level 2 of the [...] BOVESPA." [...] The requirements for such listing, in turn, included adoption of an arbitration bylaw. Thus, this notice was sufficient under Brazilian law. [...]

Finally, defendants argue that plaintiffs who purchased Petrobras securities both pursuant to U.S. transactions and on the Bovespa must also arbitrate their Exchange Act claims. By purchasing Petrobras shares on the Bovespa, they argue, this subset of the class agreed to the arbitration provision of the Company's bylaws.

However, it is a bedrock principle that "a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." [...] "[A]s with any other contract, the parties' intentions control." [...] As discussed above, as a matter of Brazilian law, purchasing Petrobras shares on the Bovespa indicates the purchaser's consent to be bound by the arbitration clause in the company's bylaws. But nothing about such share purchases indicates that the purchaser consents to arbitrate different claims relating to different securities purchased in different transactions in another country (the United States). Accordingly, the Court finds that there is no valid arbitration agreement with respect to the Exchange Act claims."

Op 7 juli 2017 heeft de United States Court of Appeals for the second circuit de hiervoor genoemde beslissing van 30 juli 2015 in stand gelaten.

“a. het behartigen van de belangen van de desbetreffende Investeerders die schade lijden, schade dreigen te lijden en/of schade hebben geleden ten gevolge van het handelen of nalaten van een of meer Petrobras Entiteiten die aanleiding geven tot een Claim;

en

het verrichten van al hetgeen verband houdt met het bepaalde in artikel 3.1 onder a en artikel 3.1 onder b, dan wel daaraan dienstig kan zijn, een en ander in de ruimste zin van het woord.”

In artikel 1 zijn "Claim" respectievelijk "Investeerders" omschreven als:

“Claims: klachten, aanspraken en vorderingen van Investeerders jegens een of meer van de Petrobras Entiteiten met betrekking tot vermeende schade die geleden is of zal worden geleden door de Investeerders als gevolg van onder andere onrechtmatig handelen door (beleidsbepalers, leidinggevenden en werknemers van) een Petrobras Entiteit, daaronder begrepen doch niet beperkt tot het omkopen van functionarissen, het overwaarderen van assets van een of meer Petrobras Entiteiten en enig ander vermeend onrechtmatig handelen, daaronder begrepen, doch niet beperkt tot, de handelingen die voorwerp van onderzoek zijn door de autoriteiten in Operation Car Wash (Operagao Lava Jato).”

en

“Investeerders: alle personen (daaronder begrepen rechtspersonen) die direct of indirect hebben gehandeld in gewone aandelen en/of preferente aandelen in [Petrobras] en/of afgeleide instrumenten daarvan en/of obligaties uitgegeven door [Petrobras, PGF ...] voor zover deze buiten de Verenigde Staten direct of indirect zijn gekocht of verhandeld, al dan niet op een gereglementeerde markt vóór achtentwintig juli tweeduizend vijftien.”

Onder Investeerders is niet begrepen de Braziliaanse staat.

"DEFINITIONS

cc. "Non-Released Individual Defendants" means [naam gedaagde 3] , [naam gedaagde 4] , and any other individual who has been or subsequently is the subject of a final judgment of conviction convicting them of a criminal or civil offense related to corruption under the laws of Brazil, or under the United States Code, arising out of or relating to conduct related to the allegations asserted in the Action.

[...]

kk. “Petrobras Securities” means the securities of Petrobras, including debt securities issued by [naam bedrijf 1] and/or PGF, purchased or otherwise acquired during the Class Period on the New York Stock Exchange or pursuant to other Covered Transactions and debt securities issued by Petrobras, [naam bedrijf 1] , and/or PGF that were purchased or otherwise acquired during the Class Period in Covered Transactions, directly in, pursuant to and/or traceable to a May 13, 2013 public offering registered in the United States and/or a March 10, 2014 public offering registered in the United States before Petrobras made generally available to its security holders an earnings statement covering a period of at least twelve months beginning after the effective date of the offerings.

[...]

vv. “Released Parties” means, in any capacity, Defendants and each of their respective present and former parents, subsidiaries, divisions and affiliates; the present and former employees, shareholders, partners, officers and directors, of each of them; the present and former attorneys, accountants, auditors, underwriters, advisors, trustees, administrators, fiduciaries, consultants, representatives, insurers, and agents of each of them; and the predecessors, heirs, successors and assigns of each, all in their capacities as such, except that the Released Parties shall not include Non-Released Individual Defendants. [...]

yy. “Securities Act Class” means all Persons who purchased or otherwise acquired debt securities issued by Petrobras, [naam bedrijf 1] , and/or PGF, in Covered Transactions, directly in, pursuant to and/or traceable to a May 13, 2013 public offering registered in the United States and/or a March 10, 2014 public offering registered in the United States before Petrobras made generally available to its security holders an earnings statement covering a period of at least twelve months beginning after the effective date of the offerings (August 11, 2014 in the case of the May 13, 2013 public offering and May 15, 2015 in the case of the March 10, 2014 public offering), excluding Defendants, [...] and any Persons who have been or subsequently are the subject of a final judgment of conviction [...]

zz. “Settled Claims” shall mean any and all Claims, including without limitation Unknown Claims (as defined in ¶ (rrr) below), (a) alleged or which could have been alleged by Class Representatives or Settlement Class Members in the Action, or (b) that have been, could have been, or in the future can or might be asserted in any federal, state or foreign court, tribunal, forum or proceeding, in connection with any of the Petrobras Securities, whether arising from federal, state, foreign, or common law, against the Petrobras Defendants, the Underwriter Defendants, or against any other of the Released Parties, arising out of or relating in any manner to the Action or the allegations, claims, defenses, and counterclaims asserted in the Action, except for Claims to enforce the Settlement, whether arising under state, federal, or common law. Settled Claims shall include claims against Defendants and Released Parties pursuant to the PSLRA for contribution/indemnity or claims that are otherwise dependent on liability in this Action and claims for violations of Fed. R. Civ. P. 11, or any other fee or costshifting claim.

[...]

eee. “Settlement Class” means, solely for the purposes of effectuating this Settlement: (i) the Exchange Act Class; and (ii) the Securities Act Class as defined herein.

fff. “Settlement Class Member” means a Person that is a member of the Settlement Class that did not exclude himself, herself, or itself by filing a timely request for exclusion in accordance with the requirements set forth in the Preliminary Approval Order and the Notice.

[...]

rrr. “Unknown Claims” means any and all Claims which Class Representatives or any other Settlement Class Member does not know or suspect to exist in his, her or its favor at the time of the release of such claims, and any Defendant Claims which any Defendant or any other Released Party does not know or suspect to exist in his, her or its favor at the time of the release of such claims, which if known by him, her or it might have affected his, her or its decision(s) with respect to the Settlement.

[...]

RELEASE OF CLAIMS

"What this boils down to as a practical matter is that certain claimants who would have been unable to join the litigation classes previously certified by the Court because of extraterritorial impediments are now included in the settlement class so that the defendants can buy "global peace."

[...]

Domesticity - although not a matter of Article III standing, see Morrison v. Nat'l Australia Bank, 561 U.S. 247, 254 (2010) ("to ask what conduct § 10 (b) reaches is to ask what conduct § 10 (b) prohibits, which is a merits question") - is an element of plaintiffs' securities fraud claims. If contested by defendants, domesticity must be proven by plaintiffs as part of their case-in-chief. But defendants here have waived any domesticity requirement for the purposes of settlement. See Def. Reply at 3. Accordingly, even though the Court previously found that the DTC claimants could not establish domesticity as a matter of law (but not because they lacked Article III standing), [naam] is wrong that the DTC claimants cannot be part of the settlement class (assuming that the other requirements of Rule 23 are met). See AIG, 689 F.3d at 237-44 (certifying a settlement class even though some or all of the class members could not satisfy the reliance element of their securities fraud claims); Sullivan v. DB Invs., Inc., 667 F.3d 273 (3d Cir. 2011) (certifying a settlement class even though some members of the class lacked statutory standing).

"7. Upon the Effective Dates of the Settlements, Class Representatives and all other Settlement Class Members, whether or not such Person submits a Proof of Claim, on behalf of (i) themselves, (ii) each of their respective predecessors, successors, assigns, parents, subsidiaries and other affiliates, officers, directors, employees, partners, members, managers, owners, trustees, beneficiaries, advisors, consultants, insurers, reinsurers, stockholders, investors, nominees, custodians, attorneys, heirs, representatives, administrators, executors, devisees, legatees, and estates, and any Person(s) they represent in connection with the Action or in connection with the purchase or sale of any Petrobras Securities during the Class Period, and (iii) any Person(s) who claims through or on behalf of them, shall be deemed by operation of law to have irrevocably, absolutely, and unconditionally, fully, finally and forever released, waived, dismissed and discharged the Settled Claims as specified and described in the Petrobras Stipulation and in the PwC Stipulation against each and all of the Petrobras Defendants, the Underwriter Defendants, PwC Brazil, and all other Released Parties, and shall forever be enjoined from prosecuting any or all of the Settled Claims against the Petrobras Defendants, the Underwriter Defendants, PwC Brazil and any Released Party. For avoidance of doubt, the Settled Claims are not released against the Non-Released Individual Defendants, who include [naam gedaagde 3] , [naam gedaagde 4] , and any other individual who has been or subsequently is the subject of a final judgment of conviction convicting them of a criminal or civil offense related to corruption under the laws of Brazil, or under the United States Code, arising out of or relating to the conduct related to the allegations asserted in the Action."