RTDoc 17-6-26 12 - 1 (PM)

Processo em curso na justia norte-americana
PROCESSO EM CURSO NA JUSTIA NORTE-AMERICANA

Lawsuit in course before the North American Justice
Revista de Arbitragem e Mediao | vol. 46/2015 | p. 69 - 111 | Jul - Set / 2015
DTR\2015\13125
rea do Direito: Comercial/Empresarial; Arbitragem

Sumrio:
- A)Parte da petio inicial, de 27.03.2015, que se refere ao direito brasileiro - B)Parecer

no sentido do descabimento e improcedncia da ao do Professor Luiz Leonardo
Cantidiano - C)Rplica do Professor Luiz Leonardo Cantidiano - D)Parte da sentena
preliminar do juiz norte-americano, de 09.07.2015, que se refere ao direito brasileiro -
E)Parte da fundamentao complementar da sentena do juiz norte-americano, de
30.07.2015, que se refere ao direito brasileiro
A) Parte da petio inicial, de 27.03.2015, que se refere ao direito brasileiro
A) Part of the Initial Petition of 03.27.2015, regarding Brazilian Law
XIII ADDITIONAL CLASS CLAIMS BROUGHT UNDER THE LAW OF BRAZIL
COUNT III By Lead Plaintiff USS For Violations of the Brazilian Corporate Law and CVM
Regulations Against the Individual Defendants
364. Plaintiff repeats, incorporates, and realleges paragraphs 1 through 357 by

reference.
365. Lead Plaintiff USS assert civil liability claims against the Individual Defendants
based on article 158, subheadings I and II, of the Brazilian Corporate Law (Law
6.404/76).
366. Article 158 provides that officers and board members are civilly liable by damages
caused when (I) they act within the scope of their authority, with negligence or scienter
or (II) when they violate the law or the corporate bylaws. The same article also
establishes that officers and board members are liable for unlawful acts when acting in
connivance with them, when neglecting to investigate such acts or when, despite
knowledge of them, they fail to take action to prevent such acts (paragraph 1.). The
law provides that officers and board members shall be jointly and severally liable for the
losses caused by failure to comply with the duties imposed by law to ensure the normal
operation of the corporation, even when in accordance with the bylaws such duties do
not devolve upon all of them (paragraph 2.). Furthermore, under Article 158 Paragraph
5. anyone who concurs in the performance of any act contrary to the law or bylaws with
the intention of obtaining advantages for himself or for a third party shall be jointly and
severally liable with the officer.
367. Brazilian Corporate law article 159 paragraph 7 provides shareholders directly
harmed by acts of officers and board members with the right of legal action against
them.
368. The Individual Defendants breached fiduciary duties and obligations required by the
Brazilian Corporate Law. In its article 145, the law establishes that rules regarding duties
and responsibilities apply to both officers and board members. The law requires that
officers and board members shall employ the care and diligence that an industrious and
honest man customarily employs in the administration of his own affairs (article 153).
The Brazilian corporate law also determines that board members elected by a group or
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class of shareholders shall have the same duties toward the corporation as the other
officers and shall not fail to fulfill such duties, even at the expense of the interests of
those who elected him (article 154 paragraph 1.). Article 154 paragraph 2. provides
that officers and board members are prohibited from (a) performing any act of liberality
to the detriment of the corporation; (b) taking advantage of its standing for his own
benefit or for the benefit of a corporation in which he has an interest or of a third party,
without the prior approval of a general meeting or the administrative council; (c) by
virtue of his position, receiving any type of direct, or indirect, personal advantage from
third parties, without authorization in the bylaws or from a general meeting.
369. The Individual Defendants also breached their duty of loyalty established by article
155. Article 155 prohibits officers and board members from I using any commercial
opportunity which may come to their knowledge, by virtue of their position, for their own
benefit or that of a third party, whether or not harmful to the corporation; II failing to
exercise or protect corporation rights or, in seeking to obtain advantages for themselves
or for a third party, failing to make use of a commercial opportunity which they know to
be of interest to the Corporation.
370. Article 156 paragraph 1. sets forth the duty to not participate in corporate
transactions in which an officer or board member has an interest which conflicts with an
interest of the corporation and to contract with the corporation under fair and reasonable
conditions identical to prevailing market conditions or under which the corporation would
contract with third parties.
371. By omitting to disclose the illegal bribery and kickback scheme, the Individual
Defendants also breached their legal duty to inform the market (article 157), therefore
engaging in securities fraud. The Brazilian Corporate law requires that officers of a
publicly held corporation shall immediately inform the stock exchange and publish in the
press any relevant fact which occurs in its business affairs, which may substantially
influence the decision of market investors to sell or buy securities issued by the
Corporation (article 157 paragraph 4.).
372. In the same vein, the Individual Defendants further violated rules of the Brazilian
Securities and Exchange Commission (Comisso de Valores Mobilirios or CVM).
Instruction n. 358/02, which regulates the duties to report material acts and facts.
Article 3 determines the duty of the Officer for Relations with investors to report to CVM
any material act or fact. Paragraph I provides the same duty for officers, board members
and members of the fiscal council or other committees with technical function, who shall
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report information of material acts or facts to the Officer for Relations with Investors. -
Therefore officers, board members, members of the fiscal council and the issuer itself
violated duties to disclose information according to Brazilian securities law.
373. The Individual Defendants likewise breached their duty to publish accurate financial
statements, which shall clearly indicate its assets and liabilities as well as the changes
that occurred during the fiscal year (article 176, subheadings and paragraphs). Article
177 paragraph 4 requires that such financial statements shall be signed by the officers of
the corporation and by legally qualified accountants. The Individual Defendants further
violated rules from instructions n. 400/03 and 480/09, which determine duties to report
such periodical financial information in connection with the register of a publicly-held
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corporation and the public issuance of securities.
374. By failing to disclose accurate information (371 and 372 above) and to deliver
accurate financial statement (373 above), the Individual Defendants, moreover,
violated legal rules of instruction n. 8/79 of the Brazilian Securities Commission (CVM)
as they have created artificial conditions for offering and trading of Petrobras securities,
price manipulation, engaging in fraud and adopting non-equitable practices. The failure
to disclose relevant facts and true and accurate financial statements has resulted in
financial damages to USS and similarly situated plaintiffs.
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375. The Individual Defendants were required to observe and comply with the duties
established by Brazilian Corporate Law, as clearly provided by article 239 that sets forth
that officers and board members of corporations shall have the same duties and
responsibilities as the officers and board members of publicly held corporations.
Furthermore, according to the Brazilian corporate law, article 142, subheading III, V and
VI, board members are responsible, among others, for supervising the performance of
officers, soliciting information of contracts, and opining about managerial reports,
accounts of the officers, acts and contracts. Board members of Petrobras have been
negligent in the exercise of their authority. By failing to oversee corporate affairs,
monitor contracts and supervise officers, the board members did not accomplish the
responsibilities determined by the law.
376. Plaintiffs suffered damages from actions and omissions of the Individual
Defendants, as alleged above and therefore seek indemnification for all the losses
suffered. Plaintiffs assert tort and civil liability claims against the Individual Defendants
by damages unduly inflicted to investors. By failing to disclose the kickback scheme, and
how it would impact Petrobras financial condition, the Individual Defendants engaged in
securities fraud, causing severe financial damages to investors. Article 186 of the
Brazilian Civil Code provides that anyone, by action or voluntary omission, negligence or
imprudence, violates rights and causes damages to others, even though exclusively
moral, commits an illicit act. Under article 927, anyone who causes damages to others
by committing illicit acts, is liable for damages. Such liability shall be according to the
damages suffered (article 944). Therefore, Lead Plaintiff seeks compensation for the
losses caused by the illicit acts, omission, negligence and imprudent actions perpetrated
by the Individual Defendants.
COUNT IV By Lead Plaintiff USS For Violations of the Brazilian Corporate Law and the
Brazilian Civil Code Against Petrobras
377. Plaintiff repeats, incorporates, and realleges paragraphs I through 357 by

reference.
378. Lead Plaintiff asserts as a class claim that Petrobras is liable by actions taken by its
officers and board members. Article 138 paragraph 1. provides that officers represent
the corporation. Article 144 provides that each officer shall represent the corporation and
take such actions as are necessary for its normal operation. By representing the
corporation in its corporate affairs, officers assume obligations and liabilities on behalf of
the Corporation towards its shareholders and investors. Petrobras therefore is liable by
the actions undertaken by its officers, and by the lack of disclosure of material facts
contained in its and financial statements and press releases. The failure to provide
accurate financial statements has deprived USS and similarly situated investors of the
inherent right to supervise the management of the corporate business (article 109,
subheading III).
379. Petrobras is also liable as employer and/or principal of all the Individual Defendants
for financial damages caused to USS and the class in the exercise of the Individual
Defendants fiduciary duties or by reason thereof (Brazil Civil Code Article 932
subheading III).
COUNT V By Lead Plaintiff USS For Violations of the Brazilian Corporate Law, CVM
Regulations, and the Brazilian Civil Code Against Petrobras

reference.
381. Article 235 paragraph I of Law 6.404/76 makes it clear that corporations such as
Petrobras shall be subject to Brazilian corporate law and to the regulations issued by
CVM.
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382. Instruction CVM n. 457/2007 provides that publicly-held corporations shall present
financial statements according to international accounting standards. Instruction CVM n.
400/2003 article 38 requires that the prospectus prepared by the issuer contains
complete, accurate, true, current, clear, objective and necessary information, in
accessible language, so that investors can judiciously form their investment decision.
Article 39 sets forth that the prospectus shall not omit material facts, nor contain
information that may mislead investors, containing information about the issuer and its
financial, economic and patrimonial situation (subheading IV). Article 56 establishes that
the issuer is responsible for the accuracy, consistency, quality and sufficiency of the
information provided at registration and supplied to the market during distribution. The
issuer and the e leading underwriter, furthermore shall declare that the Prospectus
contains the relevant information to identify the offer by investors, the securities offered,
the issuer, its activities, economic and financial situation, the risks inherent to its activity
and any other relevant information and that the Prospectus has been prepared in
accordance with the relevant rules. With this declaration the issuer assumes together
with the underwriter the liability for the information provided to investors.
Furthermore, Petrobras has violated all provisions of CVM Instruction 480/09, Chapter
III (Obligations of the issuer), Subsection I (Content and Form of the Information). For
instance, article 13 requires that the issuer must send to CVM periodical and occasional
information, which are accurate, complete, consistent and which do not induce investors
in error. Article 16 requires that the issuer shall disclose in formation comprehensively,
fairly and simultaneously for the entire market. Article 17 requires that the information
provided by the issuer should be useful to assess the securities issued by it. Petrobras
has failed to provide periodical information to investors, violating article 21 of Instruction
480/09. Petrobras has not updated information in its reference form (Formulrio
Cadastral) in a timely manner, in violation of article 23, which provides that the issuer
has up to 7 (seven) days to update its form counted from the fact that gave rise to a
change. By failing to disclose information that would impact its securities price, Petrobras
has violated disclosure rules established by CVM rules and is liable by those violations as
a publicly held corporation, according to article 46, which expressly provides that [t]he
responsibility attributed to the officer of investor relations does not remove the
responsibilities of the issuer, controller, and other administrators of the issuer for the
violation of legal and regulatory rules that govern the securities market.
383. Plaintiffs assert tort and civil liability claims against the Petrobras by damages
unduly inflicted to investors. By failing to disclose the kickback scheme, and how it would
impact its financial situation, Petrobras has engaged in securities fraud, causing severe
financial damages to investors. Article 186 of the Brazilian Civil Code provides that
anyone, by action or voluntary omission, negligence or imprudence, violates rights and
causes damages to others, even though exclusively moral, commits an illicit act. Under
article 927, anyone who causes damages to others by committing illicit acts, is obliged to
indemnify the damage. Such indemnification shall be given by the extent of the damage
(article 944). Therefore Plaintiff seeks compensation for the losses caused by the illicit
acts, omissions, negligence and imprudent actions perpetrated by Petrobras.
COUNT VI By Lead Plaintiff USS For Violations of the Brazilian Securities Law, CVM
Regulations, an d the Brazilian Civil Code Against PwC

reference.
385. Brazilian Securities Law (Law 6.385/1976), article 26 provides that only audit firms
or independent auditors which are registered with the Securities Commission of Brazil
(CVM) may audit the financial statements of publicly held corporations and institutions,
companies or corporations which compose the securities distribution and intermediation
system. Article 26 Paragraph 2 provides that independent auditors or auditing firms shall
be subject to civil liability for any losses caused to third parties as a result of negligence
or fault (scienter) in the exercise of the functions provided for in this article. Brazilian
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Corporate Law (Law 6.404/1976) article 177 paragraph 4., moreover, requires that
legally qualified accountants shall sign the corporations financial statements along with
the officers.
386. By failing to account for the illegal bribery and kickback scheme, the auditors also
violated legal rules of CVM Instruction n. 8/79 as they created artificial conditions for
demand and trading of Petrobras securities, price manipulation, engaging in fraud and
adopting non-equitable practices.
387. Plaintiffs assert tort and civil liability claims against the auditors by damages unduly
inflicted to investors. By failing to provide their gatekeeper duties and turning a blind
eye, and covering up Petrobras securities fraud, auditors caused financial damages to
investors. Article 186 of the Brazilian Civil Code provides that anyone, by action or
voluntary omission, negligence or imprudence, violates rights and causes damages to
others, even though exclusively moral, commits an illicit act. Under article 927, anyone
who causes damages to others by committing illicit acts, is liable for damages to the
damaged party. Such liability shall limited to the extent of the damages suffered (article
944). Therefore plaintiffs seek compensation for the losses caused by the illicit acts,
omission, negligence and imprudent actions perpetrated by the auditors.
B) Parecer no sentido do descabimento e improcedncia da ao do Professor Luiz
Leonardo Cantidiano
B) Expert report of Luiz Leonardo Cantidiano
I, LUIZ LEONARDO CANTIDIANO, declare as follows:
1. I am an attorney licensed to practice Law in Brazil since 1973. I graduated from the
University of the State of Guanabara Law School in 1972. I then entered private
practice, where I worked as an associate of Gama & Borba Advogados from 1972 to
1976, and then as a partner of Borba, Alvez, Caldas e Cantidiano Advogados from 1976
to 1980. Since 1980, except for periods of public service noted below from 1990 to 1991
and 2002 to 2004 with the Comisso de Valores Mobilirios (CVM), the Brazilian
equivalent of the United States Securities and Exchange Commission (SEC), I have
been a partner of Motta, Fernandes Rocha Advogados. I primarily practice in the areas of
corporate law and securities regulations.
2. While practicing as a lawyer at Motta, Fernandes Rocha Advogados, I also assumed

various other positions. From 1984 to 1987, I served as a member of the board of
directors of the Rio de Janeiro Stock Exchange. From 1990 to 1991, I briefly left private
practice to serve as a Comissioner of the CVM. From 1991 to 1993, I was a member of
the Administrative Appeals Council of the Brazilian Financial System, which is a body
that analyzes and decides all appeals related to first instance decisions of administrative
proceedings from (i) the CVM, (ii) the Central Bank of Brazil, and (iii) the Brazilian
Superintendence of Private Insurances. From 1996 to 1998, I served on the Board of
Directors of BNDESPAR BNDES Participaes S.A., which is a subsidiary of BNDES, a
development bank primarily sponsored by the Brazilian federal government. From 2000
to 2001, I served as an advisor to the So Paulo Stock Exchange (Bovespa) during the
creating of the Novo Mercado, a special listing segment of Bovespa that has increased
corporate governance standards. In connection with the creation of the Novo Mercado
and other special trading segments created concurrently, in 2001, the Bovespa set up an
Arbitration Chamber for which I have served as a member of its Body of Arbitrators. In
2002, I was nominated by the President of the Federative Republic of Brazil and
approved by Brazils Senate to serve as a Chairman of the CVM. I left private practice to
serve in that position from 2002 to 2004. I then returned to private practice where I
have again practice law at Motta, Fernandes Rocha Advogados.
3. I am currently managing partner at Motta, Fernandes Rocha Advogados, which has its
Pgina 5
head office on Avenida Almirante Barroso, n. 52, 5th floor in Rio de Janeiro, and a
branch office on Alameda Santos, n. 2355, 10th floor in So Paulo.
4. I am a member of a number of professional organizations, including the Superior

Council of the Brazilian Institute of Stock Markets and the Brazilian Association of
Publicly Held Companies. I am also an advisory member of the Brazilian Private Equity
and Venture Capital Association.
5. I have written three books on corporate law: Direito societrio & mercado de capitais
(Corporate Law and Capital Market) (Renovar, 1996); Estudos de direito societrio
(Studies of Corporate Law) (Renovar, 1999); and Reforma da Lei das S.A. comentada
(Comments on Corporation Law Reform) (Renovar, 2002). I have also written several
articles on corporate law and capital markets. Attached hereto as Appendix A is a list of
my articles.
6. I have been asked by Petrleo Brasileiro S.A. Petrobras (Petrobras), through their
counsel, Cleary Gottlieb Steen & Hamilton LLP, to provide my opinion on whether, as a
4
matter of Brazilian law, holders of Petrobras securities traded on Bovespa whose claims
are being asserted in the Consolidated Amended Complain filed (as corrected) on March
31, 2015 (the Consolidated Complaint) in the securities class action before the United
States District Court for the Southern District of the New York are required by Article 58
5
of the Petrobrass bylaws to arbitrate their claims against Petrobras and its directors
and officers.
7. The Consolidated Complaint contends, among other things, that due to alleged
corruption in connection with certain contracts resulting in overpayments, Petrobras
made materially false and misleading statements and omissions in its press releases and
year-end filings with the SEC regarding the value of its assets, the amounts of
Petrobrass expenses and net income, the effectiveness of Petrobrass internal controls
over financial reporting, and the integrity of its operations.
8. As I understand the allegations of the Consolidated Complaint, it purports to assert

claims pursuant to Section 10(b) of the Security Exchange Act of 1934 (the Exchange
Act) and Rule 10b-5 promulgated thereunder (the Exchange Act claims), among other
claims, on behalf of a class comprised of all persons or entities who purchased or
otherwise acquired Petrobras securities on the [NYSE] or pursuant to other domestic
6
transactions between January 22, 2010 and March 19,2015 (the Class Period).
9. As I further understand the allegations of the Consolidated Complaint, it also purports

to assert claims under Brazilian law on behalf of the subset of class members who,
during the Class Period, in addition to acquiring Petrobras securities on the NYSE or
pursuant to other domestic transactions, also purchased on otherwi-se acquired
7
Petrobras securities on the Brazilian stock exchange. The only Petrobras securities
traded on the Brazilian stock exchange (Bovespa) are Petrobras common shares and
preferred shares. Accordingly, any members of the class asserting claims under Brazilian
law are holders of Petrobras common or preferred shares and therefore are
shareholders of Petrobras. In other words, this group of class members both acquired
Petrobras common and/or preferred shares (which trade on Bovespa) and acquired other
Petrobras securities on the NYSE and/or pursuant to domestic transactions during the
Class Period. I refer to this subset of class members asserting the claims under Brazilian
law in the Consolidated Complaint as Petrobras Shareholders.
10. Article 58 of Petrobrass bylaws provides:
Disputes or controversies involving the Corporation, its shareholders, managers and

members of the Audit Board shall be resolved according to the rules of 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
Pgina 6
the Central Bank of Brazil and by the Brazilian Securities and Exchange Commission
(Comisso de Valores Mobilirios 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
other-the-counter market entity accredited at the Brazilian Securities and Exchange
Commission (Comisso de Valores Mobilirios 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.
11. As a matter of Brazilian law, a bylaw of a corporation which requires the arbitration
of disputes between shareholders and the corporation is part of the organizational
agreements of the corporation. By acquiring shares of Petrobras long after the bylaws
were amended in 2002 to require arbitration of disputes, Petrobras Shareholders
manifested their assent to be bound by all of the terms and conditions of Petrobrass
bylaws, including its arbitration provision. Accordingly, pursuant to Article 58 of
Petrobrass bylaws, Petrobras Shareholders are required to arbitrate all of their Brazilian
law claims asserted in the Consolidated Complaint against Petrobras based on their
acquisition of Bovespa-trated Petrobras shares during the Class Period.
12. Article 58 of Petrobrass bylaws also requires Petrobras Shareholders to arbitrate

their claims against managers of the company. Managers, as used in Article 58,
means any person who is, or was at the relevant time, a director or officer of Petrobras.
Indeed, the claims purportedly brought in the Consolidated Complaint against individual
defendants under Brazilian law may be asserted only as to directors and officers of a
Brazilian company, and not against any other corporate employee.
13. Furthermore, any Exchange Act claims against Petrobras and its directors and
officers brought on behalf of Petrobras Shareholders based on their acquisition of
American Depositary Shares (ADS) during the Class Period, which arise out of the
same facts and circumstances as their claims under Brazilian law in connection with their
acquisition of Bovespa-traded shares, must also be arbitrated pursuant to Article 58 of
Petrobrass bylaws.
14. In connection with my services researching and rendering this opinion, Petrobras has
8
agreed to compensate me at the flat rate of BRL. I maintain no financial interest in the
outcome of this litigation or any arbitration that might occur between Petrobras and any
9
of its shareholders, or the holders of any other Petrobras securities.
15. During the last twenty years, Brazil, like other countries, overcame its historical
resistance to arbitration and now firmly supports and encourages the use of arbitration
to resolve disputes.
16. In 1996, Brazil enacted the Brazilian Arbitation Act (BAA), which overhauled the
legal arbitration framework by providing for the enforcement of written agreements in
which the parties have consented to resolving their disputes by arbitration, thereby
waving their right to litigate in court any claims within the scope of the arbitration
agreement.
17. In 2001, the Brazilian Federal Supreme Court upheld the constitutionality of the BAA,
10
holding that although Brazilians have the essential right of access to justice
established in Article V, XXXV of the Brazilian Constitution, their prior agreement to
arbitrate disputes, rather than litigating those disputes in court, is valid and enforceable
and does not violate any right of access to justice.
18. Consistent with the acceptance of arbitration in Brazil, in 1995, Brazil ratified the
Inter-American Convention on International Commercial Arbitration (the Panama
11
Convention), followed by its accession in 2002 to the Convention on the Recognition
12
and Enforcement of Foreign Arbitral Awards (the New York Convention), both of
Pgina 7
which commit Brazil to enforce agreements to arbitrate in commercial matters and the
arbitral awards resulting from such arbitrations.
19. In the corporate context in particular, due to Brazils emerging economy and the
growth of its capital markets over the prior decade, the Brazilian Corporate Law (BCL)
was amended in 2001 to encourage a number of corporate governance measures and
13
the protection of minority shareholder rights.
20. Pursuant to the 2001 amendments, paragraph 3 was added to Article 109 of the
14
BCL, which governs shareholders essential rights, expressly authorizing all
corporations to include a bylaw providing for the resolution of shareholder disputes
through arbitration. Article 109 paragraph 3 of the BCL provides: The corporations
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.
21. Paragraph 3 was added to Article 109 of the BCL to encourage shareholders and
corporations to resolve disputes between them by arbitration, as well as to bind
shareholders and corporations to arbitration provisions included in corporate bylaws.
22. Pursuant to Article 109 paragraph 3 of the BCL, all shareholders who acquire shares
in a company whose bylaws already contain an arbitration provision are deemed to have
consented to arbitration and are required to resolve their disputes with the company by
arbitration.
23. Consistent with this explicit statutory authority, starting in 2002, a number of
corporations amended their bylaws to provide for the resolution of disputes with its
shareholders through arbitration.
24. Indeed, according to a publicly available list on the website of the Market Arbitration
Chamber, over 160 Brazilian companies have adopted bylaw provisions mandating
15
arbitration since the amendment to the BCL in 2001. This list includes Petrobras, as
well as some of the largest publicly traded companies in Brazil.
25. Furthermore, in 2000, the Bovespa created the Novo Mercado, a special listing
segment of the Bovespa with increased corporate governance standards, one of which is
to require, not merely permit, listing companies to include arbitration provisions in their
bylaws. The first company was listed on the Novo Mercado in 2002.
26. Moreover, in light of the various benefits of arbitration, such as efficient resolution
and the possibility of having experts decide the matter under dispute, the corporate
governance guides, such as the Brazilian Securities and Exchange Commission
Guidebook published in 2002 and the third edition of the Brazilian Institute of Corporate
Governance Code of Best Practice published in 2004, encouraged Brazilian corporations,
including publicly traded ones, to adopt arbitration bylaws.
27. The consensus among legal scholars in this field, including myself, is that as a
matter of Brazilian law, all shareholders who acquire shares after the adoption of an
arbitration bylaw are bound by the arbitration bylaw because shareholders make a
choice to invest in a company and do so subject to all of the provisions in the companys
bylaws, including the arbitration provision.
28. Pedro Batista Martins, a scholar who was one of the three people who drafted the
BAA, and who is regarded as a leading author on arbitration in Brazil, has maintained the
position included in a companys bylaws.
29. In 2011, Nelson Eizirik, another highly respected scholar in the field of Brazilian
corporate law, published a book in which he agreed that Article 109 paragraph 3 of the
BCL provides that new shareholders manifest their consent to an arbitration clause
included in a companys bylaws when they acquire shares of the company, and are thus
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bound by the arbitration clause.
30. I agree. Corporate bylaws are the organizational agreement of a company which set
forth all of the rights and obligations that govern the company and its shareholders, and
by necessity, bind all shareholders. The arbitration provision of a companys bylaws is no
less binding on shareholders than any other provisions in the bylaws. Shareholders
cannot avoid the arbitration clause in a companys bylaws by alleging ignorance of its
existence, nor can shareholders select which provision of the bylaws to follow. By
acquiring shares in a company, shareholders accept all terms and conditions of the
bylaws, including those expressing the period for holding the annual meeting, the policy
regarding the distributions of dividends, the classes of shares, the corporate purpose of
the company, as well as the arbitration clause. All provisions of the bylaws are equally
16
binding on all shareholders unless they choose to amend the bylaws.
31. Consistent with the trends discussed above, in March 2002, Petrobrass Board
approved a resolution to amend Petrobrass bylaws, which included the addition of Article
17
58. On June 10, 2002, following a vote by Petrobras shareholders approving the
18
amendments, Petrobrass bylaws were amended to include Article 58.
32. Since 2002, Petrobras has provided disclosures to current and prospective
shareholders of the existence of the arbitration provision in article 58 of its bylaws by
including a summary of the provision in each of its annual filings with the SEC on Form
20-F. Attached hereto as Appendices D through O are excerpts of Petrobrass Form 20-Fs
filed with the SEC from 2002 through 2013.
33. Based on the definitions in the Consolidated Complaint, the Petrobras Shareholders
who are members of the purported class acquired their common or preferred shares no
earlier than in 2010 or long after the bylaw was adopted and after repeated disclosures
were made by Petrobras regarding the content of Article 58 in its filings with the SEC.
Accordingly, all claimants who are Petrobras Shareholders acquired their shares subject
to, and are bound by, the arbitration clause in Article 58 of Petrobrass bylaws.
34. As I understand the allegations of the Consolidated Complaint, Counts III through V
purport to assert claims on behalf of Petrobras Shareholders against various individual
defendants and Petrobras under Brazilian law in connection with alleged materially false
and misleading statements and omissions in Petrobrass press releases and year-end
filings with the SEC regarding the value of its assets, the amounts of Petrobrass
expenses and net income, the effectiveness of Petrobrass internal controls over financial
reporting, and the integrity of its operations.
35. Specifically, Count III purports to assert claims on behalf of Petrobras Shareholders
against individual defendants for violations of various provisions of the CVM Regulations
and the BCL. As I understand the Consolidated Complaint, the claims in Count III are
brought pursuant to Article 159 paragraph 7 of the BCL. Article 159 provides
shareholders with a cause of action against a Brazilian companys directors and officers,
but not against other corporate employees.
36. Count IV purports to assert claims on behalf of Petrobras Shareholders against

Petrobras pursuant to the Brazilian Civil Code (BCC) based on the actions of
Petrobrass directors and officers concerning their disclosure obligations in connection
with Petrobrass financial statements and press releases.
37. Count V purports to assert claims on behalf of Petrobras Shareholders against

Petrobras for violations of the CVM Regulations, the BCL, and the BCC.
38. Article 58 of Petrobrass bylaws makes clear that disputes involving Petrobras, its
shareholders, managers and members of the Audit Board regarding the rules issued ()
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by the [CVM] and all further rules applicable to the operation of the capital market in
general shall be resolved by arbitration under the Rules of the Market Arbitration
Chamber.
39. Managers as used in Article 58, means directors and officers of Petrobras, as noted
above.
40. The scope of disputes covered by the arbitration clause in Article 58 of Petrobrass
bylaws is thus broad and encompasses claims alleging violations of the CVM Regulations,
as those laws are specifically listed in Article 58, and, additionally, are plainly rules
applicable to the operation of the capital market in general. Furthermore, when the
same facts and circumstances underlying claims for violations of the CVM Regulations
are alleged to have also violated the BCL and the BCC, as the Consolidated Complaint
alleges, such rules are also applicable to the operation of the capital market. Thus, the
claims of Petrobars Shareholders asserted against Petrobras in Counts IV and V are
clearly within the scope of Article 58.
41. Therefore, Petrobras Shareholders may pursue the Brazilian law claims alleged in
Counts IV and V against Petrobras only through arbitration under the Rules of the Market
Arbitration Chamber, and may not otherwise litigate such claims.
42. Likewise, Petrobars Shareholders claims asserted in Count III against Petrobras
directors and officers must also be resolved by arbitration under the Rules of the Market
Arbitration Chamber.
43. Moreover, as I understand the allegations of the Consolidated Complaint, in addition

to having acquired Bovespa-traded Petrobras shares during the Class Period, Petrobras
Shareholders are also alleged to have acquired Petrobras shares during the Class Period,
Petrobras Shareholders are also alleged to have acquired Petrobras securities on the
[NYSE] or pursuant to other domestic transactions, which include Petrobras American
Depositary Shares (ADS). The owners of common or preferred ADS indirectly hold
19
common or preferred Petrobras shares, respectively, and thus, the rights of and ADS
20
holder are derivative of the rights of holders of Petrobras shares. Therefore, while
Bovespa-traded Petrobras shares represent direct equity ownership in Petrobras, ADS
represent indirect equity ownership.
44. I further understand that Petrobras Shareholders who also acquired ADS are
pursuing a claim under the Exchange Act with respect to their ADS against Petrobras and
its directors and officers in Count I of the Consolidated Complaint. That claim regarding
ADS is alleged in the Consolidated Complaint to arise from the same set of factual
circumstances as their claims under Brazilian law in Counts III through V regarding
Bovespa-traded Petrobras shares. Certainly, all of the United States securities laws,
including the Exchange Act and the rules thereunder, are rules applicable to the
operation of the capital market. Accordingly, because tho-se Petrobras Shareholders
who also acquired ADS are shareholders (indirectly through their ADS and directly
through their shares) and are asserting claims regarding their respective equity security
purchases that arise out of common facts, Petrobras Shareholders are required to
arbitrate their Exchange Act claims in Count I regarding their ADS, along with the
Brazilian law claims in Counts III through V based on their Bovespa-traded shares.
45. Therefore, Petrobras Shareholders may pursue Exchange Act claims based on their
acquisition of ADS asserted in Count I only through the arbitration under the Rules of the
Market Arbitration Chamber that they are required to bring if they wish to pursue the
claims asserted in Counts III through V as acquirers of common or preferred shares that
are traded on Bovespa, and ay not litigate such claims in any court.
46. As noted above, Article 109 paragraph 3 of the BCL authorizes companies to include
in their bylaws the terms of an agreement to resolve disputes by arbitration under the
Pgina 10
terms specified by the bylaw.
47. Article 58 of Petrobrass bylaws specifies that disputes shall be resolved under the
21
Rules of the Market Arbitration Chamber. The Market Arbitration Chamber was created
by Bovespa as a corporate governance tool that provides a forum to shareholders that
offers specializes and efficient resolution of disputes arising from the application of
22
corporate and capital markets laws.
48. The Rules of the Market Arbitration Chamber adopt the principle of
Kompetenz-Kompetenz, i.e., they confer on the arbitral tribunal the authority to rule in
the first instance whether it has jurisdiction over the parties before it and the claims
asserted.
49. Moreover, the Kompetenz-Kompetenz principle is also incorporated by Article 8 of

the BAA, which provides that: The arbitrator is competent to decide, ex officio or at the
parties request, the issues concerning the existence, validity and effectiveness of the
arbitration agreement, as well as of the contract containing the arbitration clause.
50. Brazilian courts respect arbitration clauses and, in general, decline to exercise
jurisdiction when a dispute related to an arbitration clause is presented to them, except
if urgent relief is required prior to the commencement of the arbitration proceeding.
Brazilian courts have respected the Komppetenz-Kompetenz principle and will recognize
the authority of the arbitral tribunal to decide its jurisdiction, including the validity and
scope of the arbitration agreement, in the first instance.
51. I declare under the penalty of perjury under the laws of the United States of America
that the foregoing is true and correct.
Executed on the 17th day of April 2015 in Rio de Janeiro, Brazil.
LUIZ LEONARDO CANTIDIANO

C) Rplica do Professor Luiz Leonardo Cantidiano
C) Reply Report of Luiz Leonardo Cantidiano
I, Luiz Leonardo Cantidiano, declare as follows:
1. I have been asked by Petrleo Brasileiro S.A. Petrobras (Petrobras), through its
counsel, Cleary Gottlieb Steen & Hamilton LLP, to reply to the report submitted by
23
Professor rica Gorga opining that Petrobras Shareholders are not bound by the
arbitration provision in Article 58 of Petrobras bylaws. Professor Gorga contends that
Article 58 was not properly adopted by Petrobras as a valid bylaw amendment in 2002,
and that even if it was, shareholders who acquired Petrobras shares in 2010 or later are
not bound because they have not expressly consented to arbitrate in a separate writing.
2. Professor Gorga asserts that arbitration bylaws are adhesion contracts under Brazilian
law, and therefore, Petrobras Shareholders have not manifested their assent to be bound
by Article 58 because they have not expressly consented in writing to an arbitration
proceeding. Next, she contends that Brazilian law requires that arbitration bylaws be
24
approved unanimously by shareholders. Professor Gorga also argues that Article 58 is
null and void because Petrobras did not sufficiently specify the subject matter of the
proposed amendment when providing notice to shareholders of the agenda for the
shareholder meeting at which Article 58 was adopted. She further contends that Article
25
109 paragraph 3 of the Brazilian Corporate Law (BCL) precludes Article 58 from
binding Petrobras Shareholders to arbitrate their Brazilian law claims against Petrobras
directors and officers or their Exchange Act claims based on their ownership of ADSs.
3. I disagree with Professor Gorga on all of these points. Professor Gorgas opinions are
based on fundamentally flawed premises and mischaracterizations of my initial report. As
Pgina 11
but one example, the contention that a shareholder vote must be unanimous for an
arbitration bylaw to be validly enacted is illogical. The scholars and case law that
Professor Gorga herself cites address the issue not present in this case of
shareholders who owned shares at the time that an arbitration bylaw was adopted and
did not vote in favor of the arbitration bylaw amendment. If Professor Gorga were
correct that an arbitration bylaw must be adopted unanimously, then if even one
shareholder were to vote no, any unanimity requirement would mean the bylaw would
never be adopted and there would therefore be no issue as to whether a dissenting
shareholder is bound. Yet, the fate of the dissenting shareholder has been subject to
debate since the enactment of BCL Article 109 paragraph 3, which demonstrates that
unanimity is not required for an arbitration bylaw to be validly adopted.
4. I note that before receiving her report, I had never heard of Professor Gorga as a
practitioner or scholar in the field of arbitration in Brazil. Based on her CV and the
absence of citations in her report to any of her own published works, it appears that she
has never served as an arbitrator or written on the subject at issue here whether
persons who acquire shares after a company amends its bylaws to adopt an arbitration
provision are required to arbitrate their disputes with the company. Although in her
articles on Brazilian corporate law, Professor Gorga has mentioned the fact that certain
publicly-traded Brazilian companies are required to include mandatory arbitration clauses
in their bylaws as a condition to listing on the Novo Mercado, in those articles she does
not mention any of the concerns she now raises in her report that, if applicable, would
26
render such Bovespa-mandated arbitration provisions invalid.
5. If Professor Gorgas report correctly states Brazilian law, then the over 160 Brazilian
companies with arbitration bylaws, countless legal and financial advisors, and Bovespa
all were involved in the adoption of bylaw provisions that are unenforceable, unworkable
in practice, and infringe on the constitutional rights of minority shareholders. This is not
so.
6. Rather, the correct conclusion based upon a review of Brazilian legislation presently
pending before the President of Brazil since May 6, 2015, the current understanding of
the leading Brazilian scholars in the field of arbitration, and Bovespa regulations is that
my opinion on Brazilian law is correct, namely: (a) pursuant to Article 58 of Petrobras
bylaws, Petrobras Shareholders are required to arbitrate all of their Brazilian law claims
asserted in the Consolidated Complaint against Petrobras, as well as its directors and
officers, based on their acquisition of Bovespa-traded Petrobras shares during the Class
Period, and (b) any Exchange Act claims against Petrobras and its directors and officers
brought on behalf of Petrobras Shareholders based on their acquisition of ADS during the
Class Period, which arise out of the same facts and circumstances as their claims under
Brazilian law in connection with their acquisition of Bovespa-traded shares, must also be
arbitrated.
7. Petrobras Shareholders are bound by the mandatory arbitration provision in Article 58

of Petrobras bylaws because, by acquiring shares of Petrobras, they manifested their
assent to be bound by all of Petrobras existing bylaws, including Article 58, which had
been validly adopted years before.
8. Professor Gorga disagrees, but having never published anything herself on these
issues, relies either on a selective mischaracterization of the writings of others or on the
superseded or out of date work of scholars whose views have evolved on the subject.
She thus erroneously contends that Article 58 is unenforceable because arbitration
bylaws are adhesion contracts, and therefore, Petrobras Shareholders are not bound
unless they expressly consented in writing in accordance with Article 4 paragraph 2 of
27
the Brazilian Arbitration Act (BAA).
But, bylaws are not adhesion contracts. The provisions of the BAA regarding adhesion
contracts refer only to relationships in which one or more parties are weaker than the
Pgina 12
28
others, such as in consumer contracts. This does not apply to the relationship between
a corporation and its prospective shareholders, who are free to decide whether to invest
29
in a company with a mandatory arbitration provision in its bylaws. If a potential
investor does not wish to be bound by a companys arbitration bylaw, that investor is not
forced to purchase its shares and may simply choose not to acquire shares in that
company.
9. That a prospective shareholder is bound to the companys existing and validly adopted
bylaws upon purchasing shares is supported by Professors Carlos Alberto Carmona and
Luiz Antonio Scavone Jr. in the very writings upon which Professor Gorga relies as
30
support for her contention that a unanimity requirement exists. Professor Carmona
explains that all those who come in the future to acquire shares will be bound [] to
th[e] charter of rights and duties, such that, by their own will, they will be subjecting
themselves to all the rules of the bylaws including that which provides that certain
disputes will be resolved by arbitration, and any person interested in acquiring shares
including on the open market must take care to find out in advance about the bylaws
31
of the company to which they will adhere. Similarly, Professor Scavone concluded that
those who join the company later or buy shares are subject to the previously agreed
arbitration procedure, because once the charter binds all shareholders, [] they are the
rules governing the company internally, that regulate the shareholders rights and
32
obligations between the partners and in their relationships with third parties.
10. Professor Gorga also relies on outdated views of at least one scholar who has
disavowed his earlier opinion and now firmly supports the view that arbitration bylaws
bind all subsequent purchasers without any need for such purchasers to execute any
particular documents. Professor Gorga thus relies on Nelson Eiziriks outdated
interpretation of Brazilian law from 2002, which states that an arbitration bylaw does not
bind dissenting shareholders or future shareholders that acquire shares without
33
expressly agreeing to the arbitration bylaw. Professor Gorga incorrectly argues that my
initial report is flawed because Eizirik, the author that Mr. Cantidiano relies upon[,] has
actually contradicted his opinion, and in reality supports the views defended in [Professor
34
Gorgas] report. Professor Gorga further contends that my report does not address
the substantial doctrinal debate conducted by legal scholars and lawyers on the
35
enforceability of arbitration provisions of corporate bylaws.
11. This criticism of my initial report is unfounded. I acknowledged in my report, and do

so again, that shortly after the amendment of the BCL in 2001 there was a debate as to
36
whether corporate bylaws could be seen as adhesion contracts. But there is now
consensus among legal scholars, including Eizirik, that future shareholders that acquire
shares in a company with an existing arbitration bylaw are bound by that bylaw. Based
on my own research and from a review of Professor Gorgas report, I have not found any
scholarly writings published in the last five years that take the position that acquiring
37
shareholders need to sign an adhesion term in order to be bound.
12. In relying on Eiziriks 2002 publication alone, Professor Gorga ignores that Eizirik
38
himself publicly updated his opinion in 2009 and again in 2011, and is now firmly of
the view that acquiring shareholders are bound by arbitration bylaws because they
manifest their assent to the bylaw by acquiring shares and they do not need to expressly
consent in writing in order to be bound.
13. As Eizirik has made clear:
Shareholders who subsequently subscribe or acquire company shares are also bound by
the arbitration clause, which is an integral part of the shareholders rights and duties,
given that they adhere to an organizational agreement and to all of its clauses. Even if
they have not expressly consented to the arbitration clause, upon subscribing,
purchasing or receiving shares of any type, these shareholders are in fact ratifying the
39
company bylaws and tacitly agree to the terms therein.
Pgina 13
Eiziriks current view is that all existing shareholders at the time a company amends its
bylaws to adopt an arbitration provision, except for those who expressly voted against
the amendment, are bound by the arbitration bylaw:
Considering that the legitimacy of arbitration rests on the fundamental principle of the
freedom of choice, shareholders who expressly voted against the inclusion of an
arbitration clause in the bylaws cannot be forced to adopt it () All the other
shareholders will be bound to the arbitration clause of the bylaws: those who voted in
40
favor, those who abstained and those who did not attend the meeting.
14. Professor Gorga also challenges my report as inconsistent with [my] previous view
41
on this matter. But, Professor Gorga mischaracterizes my opinions set forth in my
42
2002 book. I did not definitively state that it was necessary for acquiring shareholders
to sign an adhesion term in order to be bound by an arbitration bylaw. On the contrary, I
opined that it would be prudent to have acquiring shareholders sign a document in order
to avoid any doubt about their consent to the arbitration provision. However, after more
than ten years since the 2001 adoption of BCL Article 109 paragraph 3, the conscious
choice by Bovespa as the only organization in Brazil that could implement any
provision for acquirers of shares of publicly traded companies to separately manifest
acceptance of an arbitration bylaw not to adopt any such regulations, and the
evolution of arbitration in Brazil and the writings of those most knowledgeable on the
subject, as my initial report explained, my view too has evolved as it has become clear
that the cautionary practice I proposed thirteen years ago is not necessary.
15. Furthermore, Professor Gorgas views are contrary to the requirements of various
listing segments of Bovespa with different levels of corporate governance that require
arbitration bylaws, including Level 2, the Novo Mercado, and Bovespa Mais (a special
segment for small and medium sized companies). In fact, Professor Gorga takes the
extreme view that the amended bylaws of more than 160 Brazilian companies that
43
provide for mandatory arbitration are not legally enforceable, and that the rules of the
Novo Mercado requiring listing companies to include arbitration provisions in their bylaws
44
do not reflect good corporate governance rules. Professor Gorgas statement on this
issue is contradicted by the Brazilian Institute of Corporate Governance Code of Best
Practice published in 2004 that, as I mentioned in my initial report, specifically
encouraged Brazilian corporations, including publicly traded ones, to adopt arbitration
45
bylaws.
16. Notably, Professor Gorga has previously written about the strengths and Weaknesses
of corporate governance practices of Brazilian public companies, and specifically, the
corporate governance rule of the Novo Mercado requiring companies to include
arbitration provisions in their bylaws. According to Professor Gorga, [a]s a way to avoid
problems with the court system, Bovespa requires Level 2 and Novo Mercado firms to
provide for arbitration of disputes with shareholders, using the Bovespa-sponsored
46
Market Arbitration Panel. Yet, Professor Gorga did not raise any doubt as to the
validity of such provisions, let alone suggest the extreme conclusion she does now that
this practice requires companies to adopt arbitration bylaws that are legally
47
unenforceable or violates the constitutional rights of minority shareholders. To the
contrary, in an article published this year, Professor Gorga characterized the strict rules
48
governing Novo Mercado and Level 2 listings as a success.
17. Professor Gorga also incorrectly asserts that an arbitration clause has to be
approved unanimously in the shareholder meeting that passed the reform of the relevant
49
bylaws in order to bind all shareholders of a corporation. This is a clear misstatement
50
of Brazilian law. Tellingly, she cites no provision of the BCL that imposes any such
unanimity requirement with respect to arbitration bylaw amendments. Notably, Articles
221 and 294 of the BCL provide specific circumstances where bylaw amendments must
be unanimous (relating to transformations and profit shares in closely held corporations,
51
respectively). The inclusion in BCL Articles 221 and 294 of a unanimity requirement for
Pgina 14
certain specific corporate changes, and the absence of a statutory provision specifically
requiring that arbitration bylaw amendments be approved unanimously by shareholders
demonstrates expressio unius est exclusio alterius that no such requirement for
arbitration bylaws exists.
18. No section of the BCL specifies the approval rate necessary to adopt an arbitration
bylaw. Thus, under the BCL, at most what is required to adopt an arbitration bylaw
52
amendment is a vote in favor by at least one-half of the voting shares. Thus, there is
no basis to assert that arbitration bylaws are subject to a unanimity requirement.
19. In arguing that arbitration bylaws must be approved unanimously by shareholders,

53
Professor Gorga relies solely on the writings of Carmona and Scavone, while
disregarding the provisions of the BCL, and scholarly writings of numerous other authors
that discuss the impact of an amendment to include an arbitration bylaw on differently
situated persons (i.e., those who voted to approve the bylaw, those who affirmatively
54
voted against the bylaw, those who abstained from voting) which, by implication,
make it undeniably clear that there is no such unanimity requirement. Indeed, Professor
Gorgas position that arbitration bylaws are valid only if unanimously approved by
shareholders would render all of these scholarly writings moot, including Eiziriks book
published in 2002 upon which Professor Gorgas report heavily relies. If an arbitration
bylaw were valid only if all shareholders unanimously voted to approve it, then there
would be no issue regarding the binding impact of an arbitration bylaw on dissenting
shareholders. Either all shareholders would have approved the bylaw or the bylaw would
55
not come into existence at all.
20. In fact, in 2009, Eizirik expressly opined that it is not advisable to require the
express approval of the arbitration clause from all shareholders, at the risk of denying
56
the bylaws the status of organizational agreement.
21. As further support for this purported unanimity requirement, Professor Gorga argues
that if a single shareholder with majority control (like the Brazilian governments
ownership of Petrobras) could vote to adopt an arbitration bylaw, it could unilaterally
withdraw the constitutional rights of access to public courts from thousands of
57
shareholders. However, her concern about the involuntary loss of constitutional rights
of dissenting shareholders is not at issue in this case because, as explained above, any
Petrobras Shareholders acquired their shares long after Petrobras amended its bylaws to
adopt Article 58, and therefore, with respect to the shares at issue in this case, none
were dissenting shareholders at the time of Article 58s adoption. On the contrary, by
acquiring shares in Petrobras between 2010 and 2014, all Petrobras Shareholders
manifested their assent to Article 58 and willfully waived their right of access to the
courts.
22. Since the submission of my initial report, the Brazilian National Congress has
approved legislation codifying the prevailing position under Brazilian law established
above, that (i) arbitration bylaws are not adhesion contracts, (ii) a majority vote is
sufficient to validly adopt such a bylaw amendment, and (iii) once so adopted, all
subsequent share purchasers are bound by it. On May 5, 2015, the National Congress
58
approved legislation (the 2015 Legislation) drafted by a commission appointed by the
Brazilian Senate comprised of judges, arbitration experts, and government officials. The
59
2015 Legislation was presented to the President for final approval on May 6, 2015. In
pertinent part, the 2015 Legislation, states that the [a]pproval of the addition of an
arbitration agreement in the bylaws, with due regard for the quorum set out in art. 136
60
[of the BCL], binds all shareholders. The 2015 Legislation also unambiguously
demonstrates, as I established above, that arbitration bylaws are categorically distinct
from adhesion contracts by addressing adhesion contracts in Article 1 of the 2015
61
Legislation, but providing in Article 3 the conditions quoted above under which an
62
arbitration bylaw binds all future shareholders. Read together, Articles 1 and 3 of the
2015 Legislation reiterate that arbitration bylaws are not adhesion contracts. The 2015
Pgina 15
Legislation, with respect to these points, is thus a codification of the prevailing current
view among scholars that arbitration bylaws are not adhesion contracts, and that an
arbitration bylaw that is validly adopted by a quorum pursuant to BCL Article 136 is
63
binding upon all subsequent shareholders without more.
23. As set forth above, the writings of the leading scholars in the field of arbitration in
Brazil, as well as the 2015 Legislation, make clear that bylaw amendments adopting
arbitration provisions, such as Article 58 of Petrobras bylaws, are binding upon all future
shareholders. I nonetheless address Professor Gorgas incorrect conclusion that the
prevailing understanding in the [Brazilian] case law is that parties have to expressly
64
consent in writing to an arbitration clause. The cases to which Professor Gorga cites
do not hold that acquiring shareholders must sign an adhesion term in order to be bound
by an arbitration bylaw.
24. Professor Gorga cites to the one Brazilian case she found, Civil Appeal n.
20110111045065APC, that discusses arbitration bylaws as support for the position that
they are adhesion contracts requiring shareholders to sign an adhesion term in order to
65
be bound. Quoting from the opinion, Professor Gorga writes that [t]he conclusion is
that the arbitration convention established in the by-laws of a corporation cannot apply
66
to the parties who did not expressly adhere to it. However, Professor Gorga
misleadingly omits the rest of the quote, which appears in bold in the opinion: where
67
the clause was agreed upon 30 years after plaintiff acquired shares. As the language
that Professor Gorga conveniently ignores makes clear, that case involved a more
controversial issue whether an arbitration bylaw binds shareholders who acquired their
shares before the bylaw was adopted and did not expressly consent to the bylaw
amendment. The shareholder in that case did not attend the meeting at which the
arbitration bylaw was adopted. This trial court decision is distinguishable from the issue
here, again, because any Petrobras Shareholders within the subclass acquired their
shares long after Article 58 was adopted. Furthermore, the opinion suffers the same
68
flaws as Professor Gorgas report it relies on Eiziriks superseded opinion from 2002.
Not surprisingly, this case was appealed to the Brazilian Superior Court and is awaiting
69
decision.
25. Next, Professor Gorga contends that (t)he single judicial case law presented in (my)
report the Supreme Court case upholding the constitutionality of the
BAA does not support [my] conclusion that Petrobras Shareholders are bound by
Article 58 because the facts are absolutely different from the facts of the present legal
dispute, since both parties who were litigating had expressly agreed to the arbitration
70
clause. With due respect, I completely disagree with Professor Gorga. As I explained
in my report, the Brazilian Federal Supreme Court upheld the constitutionality of the
BAA, holding that although Brazilians have the essential right of access to justice
established in Article V, XXXV of the Brazilian Constitution, their prior agreement to
arbitrate disputes rather than litigating those disputes in court is valid and enforceable
71
and does not violate any right of access to justice. In other words, it in fact stands for
the proposition that a valid arbitration agreement is enforceable, the principle for which I
cited it. This Supreme Court opinion does not support the conclusion that acquiring
shareholders must sign an adhesion term in order to manifest their consent to be bound
by an arbitration bylaw. Indeed, as Professor Gorga elsewhere concedes, Brazilian law
assures that no one will be obliged to subject a claim to arbitration without a valid
authorization and that [t] he arbitration solution can only be adopted if parties
72
manifest their consent to it which acquiring shareholders do when they acquire
73
shares in a company whose bylaws contain an arbitration clause.
26. Furthermore, the right of access to justice in courts established by the Brazilian
Constitution is a right of access to Brazilian courts. Any Petrobras Shareholders at issue
in this case are not seeking to avail themselves of access to a Brazilian court, but rather
to a United States court. For that reason, Petrobras Shareholders should not be entitled
Pgina 16
to invoke Brazilian constitutional principles about rights to sue in a Brazilian court before
the United States court. By seeking to sue in the United States, the Petrobras
Shareholders chose not to invoke any right of access to a Brazilian court and whatever
the contours of that right may be, they should be irrelevant to the United States Courts
determination of whether Petrobras Shareholders are bound to arbitrate.
27. Professor Gorga cites to one other Brazilian case, Sentena Estrangeira Contestada
n. 6.753, in which she claims that when the party had not signed the agreement the
Supreme Court has considered inadmissible the tacit and implicit arbitration convention.
74
However, that case involved an arbitration clause in a purchase and sale agreement
that was not signed by the purchaser, and so the court concluded that there was no
proof that the purchaser had manifested assent to the terms of the contract or its
arbitration provision. This decision is entirely unrelated to the issue here arbitration
bylaws enacted in accordance with Article 109 paragraph 3 of the BCL.
28. In sum, in light of the consensus among legal scholars that arbitration bylaws are
binding upon all future shareholders of a company (now embraced in the 2015
Legislation pending before the President), which is consistent with all of the cases cited
in Professor Gorgas report, her argument that Article 58 is unenforceable because the
acquiring shareholders did not expressly agree in writing is simply inconsistent with
modern Brazilian law, and clearly mistaken.
Petrobras Provided Shareholders with Sufficient Notice of the Agenda for the Shareholder
Meeting at Which Article 58 Was Adopted
29. As stated in Petrobras disclosures filed with the SEC, Petrobras bylaws were
75
amended in March 2002 to include Article 58. In seeking to document the adoption of
Article 58 by Petrobras shareholders, I requested the agenda and minutes for the
pertinent shareholder meeting. I was provided with the agenda and meeting minutes for
June 10, 2002, instead of the agenda and minutes for the shareholder meeting on March
22, 2002. Article 58, as well as accompanying amendments to Article 22 of the Petrobras
bylaws were in fact validly adopted at the March 22, 2002 shareholder meeting, as
stated in Petrobras SEC filing in 2003.
30. Article 124 of the BCL requires that the call of a meeting make clear the subject
76
matter of any potential amendment of the corporate bylaw. Consistent with that
provision, Petrobras published a notice inviting shareholders to attend the March 22,
2002 meeting to vote on, among other things, the reform of its bylaws to promote
changes to enhance corporative governance practices and to move toward fulfillment of
77
requirements for listing in Level 2 of the Sao Paulo Stock Exchange Bovespa. Among
other changes, a move to the Level 2 of Bovespa entails the adoption of a mandatory
arbitration provision in the companys bylaws. Thus, the text of the call was sufficient
under BCL Article 124 to notify investors that the introduction of an arbitration provision
in Petrobras bylaws would be among the issues discussed at the March 2002 meeting.
31. The minutes of the March 22, 2002 meeting include the same language as the notice
for the meeting at which Article 58 was adopted regarding changes to move toward
78
fulfillment of requirements for listing in Level 2, and also includes the text of Article
79
58. The minutes also reflect that Petrobras bylaws were amended to include Article
22, which requires Petrobras managers, upon becoming a director or officer, to sign an
80
installation deed in which they consent to the arbitration provision in Article 58. The
minutes indicate that these amendments were discussed and adopted by a majority of
81
the shareholders present and voting, which is the approval requirement set forth in
Article 136 of the BCL.
32. To the extent that Professor Gorgas point is that the agenda included in the call for
the March 22, 2002 meeting needed to explicitly reference arbitration or give notice of
each proposed bylaw amendment, that is not Brazilian law. The CVM has made clear that
Pgina 17
decisions made at a shareholder meeting regarding issues not explicitly specified in the
call are valid so long as the subject matter of the decided issue is virtually or implicitly
82
contained in the subject matter presented in the calls agenda. An amendment of the
bylaws to include an arbitration provision is connected to the subject matter of the
agenda set forth in the call to move toward fulfillment of requirements for listing in
Level 2 of () Bovespa as one of the requirements for companies to list in Level 2 is
adopting an arbitration bylaw.
33. In any event, even if the call did not adequately notify shareholders of the subject
matter of the proposed amendment (which it did), shareholders may challenge the
amendment of a bylaw adopted at a shareholders meeting within two years following
83
the date of the meeting. More than a decade has passed since the March 22, 2002
meeting. Accordingly, no shareholders may now seek to nullify any of the bylaws that
were amended at that meeting, including Article Indeed, Petrobras Shareholders could
never have challenged the 2002 adoption of Article 58 because they did not acquire their
shares until years after the expiration of the two-year period. Moreover, the existence of
a period within which shareholders may challenge decisions made at a shareholder
meeting establishes that such decisions are voidable during that period, but not void.
Thus, despite Professor Gorgas contention to the contrary, Article 166 of the Brazilian
84
Civil Code does not apply to Article 58 or the March 22, 2002 shareholder meeting.
34. Accordingly, the bylaws of Petrobras were validly amended in 2002 to include Article
58 and Article 22. Thus, Professor Gorgas argument that the shareholder meeting itself
85
and its bylaws reform are absolute null and void is without merit.
The Rules of the Market Arbitration Chamber Do Not Require the Petrobras Shareholders
to Sign A Term of Agreement in Order to be Bound by Article 58
35. Professor Gorga also argues that Article 58 was not validly adopted because
Petrobras failed to adhere to the rules of Bovespas Market Arbitration Chamber (MAC)
in effect in 2002 (when Article 58 was adopted), which she contends clearly stated that
the arbitration provision had to be agreed and signed by shareholders, in an appropriate
86
Term of Agreement. This is an incorrect statement of the law.
36. The MAC rules that govern are the rules in effect at the time that an arbitration is
87
initiated, not when the arbitration provision was adopted. The current MAC rules make
88
no reference to a Term of Agreement.
37. Even assuming that the MAC rules in effect in 2002 were relevant to the
enforceability of Article 58 today, Petrobras Shareholders still would not need to sign a
Term of Agreement to be bound by Article 58. The Bovespa regulations in effect in
2002 required listing companies of Level 2 and the Novo Mercado to expressly adhere to
the MAC rules by executing a Term of Agreement and submitting it to Bovespa.
However, the Term of Agreement requirement of the 2002 Bovespa regulations and
the corresponding 2002 MAC rules was inapplicable to companies such as Petrobras that
were not listed on Bovespas special segments. Contrary to Professor Gorgas assertion,
the MAC rules did not clearly state[] that the arbitration provision had to be agreed and
89
signed by shareholders, in an appropriate Term of Agreement. In fact, neither the
Bovespa regulations nor the MAC rules ever required shareholders of companies that
were not listed on Level 2 or the Novo Mercado to sign a Term of Agreement. Because
Petrobras was never listed on Level 2 or the Novo Mercado, neither it nor any of its
shareholders were ever required to execute a Term of Agreement. Instead, Petrobras
remained free to provide for the resolution of disputes in accordance with the MAC rules
directly in its bylaws.
38. Professor Gorga argues that managers are not bound by arbitration bylaws because
Article 109 paragraph 3 of the BCL does not specifically authorize a company to adopt
Pgina 18
90
bylaw provisions covering shareholder disputes with managers, relying on Eiziriks
91
2002 book. Yet again, Professor Gorga ignores the subsequent writings of Eizirik, in
which he expressly stated that Article 109 paragraph 3 does not prohibit the resolution
of disputes between managers and shareholders by arbitration, as Article 58 of
Petrobras bylaws does. According to Eizirik:
Although the Brazilian Corporation Law mentions only the differences between
shareholders and the company or between controlling shareholders and minority
shareholders, nothing prevents the bylaws from appointing other conflicts as solvable via
arbitration. Thus, any differences () between managers and shareholders () may be
92
subject to arbitration.
39. Furthermore, Professor Gorga contends that Article 58s effectiveness against the
managers of the company would also hinge on the managers express acceptance to the
93
arbitration provision. Professor Gorga fails to appreciate that Article 22 paragraph 1 of
Petrobras bylaws, which was adopted at the same time as, and works together with,
94
Article 58, requires managers to sign an installation deed upon becoming a director or
officer in which they consent to the arbitration provision in Article 58. This eliminates any
argument that Petrobras managers are not bound to arbitrate.
40. Finally, Professor Gorga challenges my conclusion that those Petrobras Shareholders
who also acquired ADS during the Class Period must arbitrate their Exchange Act claims
regarding their ADS asserted in Count I of the Consolidated Complaint along with their
Brazilian law claims based on their Bovespa-traded shares asserted in Counts III through
95
V. Professor Gorga mischaracterizes my opinion in contending that I am arguing that
without express authorization, Petrobras ADS holders are required to arbitrate their
Exchange Act claims in Count I, along with the Brazilian law claims in Count III through
V based on their Bovespa shares, which she claims offends the Brazilian Constitutional
96
right of access to public courts. I did not assert that all ADS holders in this action are
required to arbitrate their claims under Article 58 of Petrobras bylaws. What I wrote
and believe is that those persons who acquired both Bovespa-traded shares and ADSs
during the Class Period are required to arbitrate their claims over both equity securities.
As I have explained above, by acquiring Bovespa-traded shares, Petrobras Shareholders
manifested their assent to be bound by Article 58. To the extent that those same
individuals are asserting claims based on their ownership of equity in Petrobras in the
form of ADSs, they are bound by their consent to arbitrate their disputes with Petrobras
that they manifested when they acquired their Bovespa-traded shares.
41. Professor Gorgas reliance on the restrictive definition of shareholders advocated

by Eizirik in his 2002 book as precluding the expansion of the arbitration provision to
97
ADS holders does not change this result. As explained above, Eizirik subsequently
abandoned this restrictive reading of BCL Article 109 paragraph 3, and now is of the
view as am I that nothing prevents the bylaws from appointing other conflicts as
solvable via arbitration. This includes the claims of Petrobras Shareholders that relate to
their ownership of ADSs. Furthermore, despite Professor Gorgas contention, my opinion
is not that Article 58 should be expanded to ADS holders, but rather that those Petrobras
Shareholders who also acquired ADSs during the Class Period are bound by Article 58 to
arbitrate their ADS-related Exchange Act claims in addition to their Brazilian law claims.
42. Moreover, any dispute about whether Petrobras Shareholders are also required to
arbitrate their claims relating to their ADS is a matter of scope that is to be decided by
the arbitrators in the first instance.
43. In seeking to challenge my statement regarding the well-established principle of

Kompetenz-Kompetenz, Professor Gorga misleadingly cites Article 7 of the BAA (while
omitting any reference to the related provisions of Article 6) and the writings of Carmona
98
in support of her contention that the BAA authorizes judicial intervention in all cases
to a party claiming the invalidity of the arbitration process. Professor Gorga is mistaken.
Pgina 19
Article 7 does not address whether it is for the court or the arbitrator to decide in the
first instance whether an issue falls within the scope of an arbitration clause.
99 100
44. Rather, as BAA Article 6 makes clear, Article 7 authorizes a judicial proceeding
to compel arbitration only [i]n the event of absence of provision as to the method of
101
commencing the arbitration. Article 7 of the BAA is inapplicable here because Article
58 of Petrobras bylaws incorporates the rules of the Market Arbitration Chamber, which,
in turn, explain how to initiate an arbitration under those rules. It is understood that the
mechanism of Article 7 is not applicable where an arbitration clause provides the rules
for the formation of the arbitral tribunal. In such cases, the arbitral tribunal shall be
constituted as provided in the arbitration provision and the arbitration shall proceed,
with issues regarding the scope of claims subject to arbitration to be resolved by the
arbitrators in the first instance.
45. Despite Professor Gorgas suggestion otherwise, Carmona clearly states that the
Article 7 proceeding applies only to arbitration clauses that lack the essential elements
for the constitution of the arbitral tribunal (i.e., the method for the nomination of the
arbitrators), and if such essential elements are included in the arbitration clause, the
102
commencement of the arbitration shall not permit resort to a judicial intervention.
Furthermore, Professor Carmona explains that an arbitration clause which makes
reference to an arbitral institution shall not give rise to an Article 7 judicial proceeding,
even if one party refuses to nominate the arbitrators or to participate in the arbitration
103
itself.
46. Because Article 58 of Petrobras bylaws includes an express reference to the rules of
the Market Arbitration Chamber, which set forth the procedure for establishing the
relevant arbitral tribunal, the Article 7 proceeding is not applicable. Moreover, even if it
were applicable, the Article 7 proceeding is typically initiated by the petitioner after the
respondent refuses to participate in the arbitration. But, here, it is not Petrobras, the
respondent, that is refusing to arbitrate.
47. Professor Gorgas conclusion that Petrobras Shareholders are not bound by Article 58
to arbitrate their Brazilian law claims, as well as any Exchange Act claims they have in
connection with their ownership of ADSs, relies on outdated authorities, omits contrary
authorities, and employs mistaken analyses to come to an erroneous conclusion. Despite
her assertions to the contrary, arbitration bylaws are not adhesion contracts that require
shareholders to expressly consent by writing, nor do they need to be approved
unanimously by shareholders. Petrobras Shareholders manifested their assent to be
bound by all of Petrobras bylaws, including Article 58, upon acquiring shares of
Petrobras. Article 58 is valid, binding, and enforceable against Petrobras Shareholders,
including those Petrobras Shareholders who also acquired ADS during the Class Period
and are suing in respect of those other equity securities. Accordingly, Petrobras
Shareholders are required to arbitrate their Brazilian law claims, and any Exchange Act
claims they have based upon ADS purchases during the Class Period against Petrobras
and its directors and officers.
I declare under the penalty of perjury under the laws of the United States of America
that the foregoing is true and correct.
Executed on the 22nd day of May 2015 in Rio de Janeiro, Brazil.
LUIZ LEONARDO CANTIDIANO

D) Parte da sentena preliminar do juiz norte-americano, de 09.07.2015, que se refere
ao direito brasileiro
D) Part of the preliminary award of the North American Judge of 07.09.2015 that
regards Brazilian Law
Pgina 20
Defendants motion to dismiss the Securities Act claims is granted on the ground that
plaintiffs failed to allege that they purchased the relevant securities in domestic
transactions. See Morrison v. Nat l Austral. Bank Ltd., 561 U.S. 247, 273 (2010).
However, leave to amend with respect to this issue is granted, provided such amended
pleading is filed no later than July 16, 2015.
Defendants motion to compel arbitration is granted with respect to the Brazilian law
claims asserted in Counts III through V of the CAC, but is denied with respect to the
Exchange Act claims.
Defendants motion is otherwise denied. A memorandum explaining the reasons for

these rulings will issue in due course. The mandatory stay of discovery imposed by the
Private Securities Litigation Reform Act, 15 U.S.C. 78u-4 (b) (3) (B), 77z-1 (b) (1), is
hereby lifted. The parties are directed to jointly prepare and submit to the Orders and
Judgments Clerk, by July 15, 2015, a proposed Case Management Plan pursuant to
which this case will be ready for trial by no later than February 1, 2016.
The clerk is directed to close document number 154 on the docket of this case.
So ordered.
Dated: New York, NY
July 9, 2015
JED S. RAKOFF, U.S.D.J.

E) Parte da fundamentao complementar da sentena do juiz norte-americano, de
30.07.2015, que se refere ao direito brasileiro
E) Part of the complementary argumentation of the North American Judge Award of

30.07.2015 that regards Brazilian Law
Fifth, defendants moved to dismiss plaintiffs Securities Act claims on the ground that
plaintiffs failed to allege that they purchased the relevant securities in domestic
transactions. The Securities Act applies only to securities listed on a domestic stock
exchange or purchased or sold in the United States. See Morrison V. National Australia
Bank, 561 U.S. 247, 273 (2010). The CAC fails to plead that plaintiffs purchased the
relevant securities in such domestic transactions. However, based on plaintiffs
representations in their briefs and at oral argument that they did, in fact, purchase the
securities in domestic transactions, the Court granted them leave to amend.
Brazilian Law Claims. Counts III through V allege violations of Brazilian law on behalf of
class members who, in addition to purchasing Petrobras securities in the United States,
also purchased Petrobras common or preferred shares on the Brazilian stock exchange,
known as the Bovespa. Defendants moved to dismiss these Brazilian law claims on the
ground that they are subject to mandatory arbitration pursuant to the Companys
bylaws.
Article 58 of Petrobras bylaws provides that disputes () involving the Corporation, its
shareholders, managers and members of the Audi t Board regarding the rules issued
() by the Brazilian Securities and Exchange Commission (Comisso de Valores
Mobilirios 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. Expert Report of Luiz Cantidiano dated April 17, 2015, Cooper Decl. Ex. 27
(Cantidiano Rep.) 10. The Market Arbitration Chamber was created by the Bovespa
to serve as a specialized forum for resolution of disputes related to corporate and
securities laws. Id. 47.
Both parties agree that whether purchasers of Petrobras securities on the Bovespa
Pgina 21
agreed to the mandatory arbitration clause is a question of Brazilian law. See Schnabel
v. Trilegiant Corp., 697 F. 3d 110, 119 (2d Cir. 2012). 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 (BLC) to expressly
authorize companies to include mandatory arbitration clauses in their bylaws: The
corporations 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. Cantidiano Rep. 20.
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. Id. 25. 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. Id.
28-29; Reply Report of Luiz Cantidiano dated May 22 2015 (Cantidiano Reply Rep.),
Reply Declaration of Reger A. Cooper dated May 22, 2015 (Cooper Reply Decl.) Ex. 5,
9-13.
In the wake of these changes over 160 Brazilian companies have adopted bylaws
mandating arbitration of shareholder disputes. Id. , 24. One such company was
Petrobras, which adopted the arbitration provision in Article 58 of its bylaws in 2002 by
Board resolution and shareholder vote. Cantidiano Rep. 31. Petrobras disclosed the
existence of this provision to current and prospective shareholders via its annual filings
with the SEC. Id. 32. 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 (Comisso de Valores
Mobilirios CVM) as well as in all further rules applicable to the operation of the capital
market in general. Id. 10. Accordingly, plaintiffs are bound to arbitrate these claims.
104 105
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. See Expert Report of Erica Gorga
(Gorga Rep.), Gilmore Decl. Ex. 29, at. 5. 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. See
Cantidiano Reply Rep., 8-14. Moreover, plaintiffs experts opinion would render
unenforceable the bylaws of over 160 Brazilian companies that provide for mandatory
arbitration, including all of those listed on the Novo Mercado. Id. 15.
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. Gorga Rep. at 8. However, Article 136 the BCL provides a general rule that
resolutions of a general meeting shall be passed by a simple majority of votes.
Cantidiano Reply Rep. 18 & n. 30. 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. Id 17. In addition, defendants expert cites
articles discussing whether an arbitration clause is binding on a shareholder who voted
against it or abstained from voting, implying that an arbitration clause adopted by
non-unanimous vote is not per se void. Id. 19 & n. 32.
Pgina 22
Earlier this year, the Brazilian National Congress approved legislation, which was drafted
by a commission of judges, arbitration experts, and government officials, providing that
(a)pproval of the addition of an arbitration agreement in the bylaws, with due regard for
the quorum set out in art. 136 (of the BCL), binds all shareholders. See Cantidiano
Reply Rep. 22 & Appx J. This provision is consistent with the prevailing view among
Brazilian legal scholars, as described by defendants expert, that arbitration bylaws are
valid if approved by a simple majority, are not considered contracts of adhesion, and are
binding on all shareholders. Thus, the adoption of this provision provides further support
for the Courts conclusion that Article 58 is valid and binding under Brazilian law.
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. Gorga Rep. at 16-17. Article 124 of the
BCL provides that the notice of the shareholder meeting shall contain the agenda, and,
in the case of an amendment to the bylaws, an indication of the subject-matter. Id.
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
Companys bylaws to promote changes to enhance corporative governance practices
and to move toward fulfillment of requirements for listing in Level 2 of the So Paulo
Stock Exchange Bovespa. Cantidiano Reply Rep. 30 & Appx K. The requirements for
such listing, in turn, included adoption of an arbitration bylaw. Thus, this notice was
sufficient under Brazilian law. See id. 32 (quoting CVM Opinion that notice is valid so
long as subject matter of the decided issue is virtually or implicitly contained in the
agenda).
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 Companys bylaws. That provision
encompasses all claims arising from rules applicable to the operation of the capital
market in general, which, defendants argue, includes the U.S. federal securities laws.
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. AT&T Technologies, Inc.
v. Communications Workers of America, 475 U.S. 643, 648 (1986). (A) s with any other
contract, the parties intentions control. Cohen v. UBS Fin. Servs., Inc., No. 14-781-CV,
2015 WL 3953348, at *2 (2d Cir. June 30, 2015). As discussed above, as a matter of
Brazilian law, purchasing Petrobras shares on the Bovespa indicates the purchasers
consent to be bound by the arbitration clause in the companys 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.
Accordingly, in its Order of July 9, 2015, the Court granted defendants motion to
dismiss Counts III through V on the basis of the mandatory arbitration provision of the
Companys bylaws, but denied defendants motion to dismiss the Exchange Act Claims
pursuant to that provision.
For the foregoing reasons, the Court, by Order dated July 9, 2015, granted in part and
denied in part defendants motion to dismiss.
Dated: New York, NY
July 30, 2015
JED S. RAKOFF, U.S.D.J
Pgina 23
* Disponvel em: [www.nysd.uscourts.gov/pacer.php], acesso em: 03.07.2015.
1 Nota do Editorial. A numerao das notas de rodap do presente texto seguiu a ordem
disposta no original.
2 Instruction 480/09 makes it clear that the duty to disclose information is not exclusive
of the Officer for Relation of Investors. Article 46 The responsibility attributed to the
officer of investor relations does not remove the responsibilities of the issuer, controller,
and other administrators of the issuer for the violation of legal and regulatory rules that
govern the securities market.
3 Article 56-B from Instruction 400/2003 provides that the offer or administrators within
its legal and statutory powers, are responsible for fulfilling the obligations imposed on
the offeror by this Instruction. Article 56-C from instruction 400/2003 provides that the
issuer administrators within its legal and statutory powers, are responsible for fulfilling
the obligations imposed on the issuer by this Instruction.
4 In addition to being listed on Bovespa, Petrobras securities are also listed on the New
York Stock Exchange (the NYSE). Accordingly, Petrobras is subject to the rules
promulgated by the SEC, which are akin to the enhanced corporate governance
standards of the Novo Mercado.
5 A copy of Petrobrass bylaws is attached hereto as Appendix B.
6 Consolidated Complaint 15.
7 Id. 18.
8 On April 14, 2015, the equivalent of BRL was $. See US Dollar-Brazil Real Exchange
Rate, Bloomberg, [www.bloomberg.com/quote/USDBRL:CUR] (last visited Apr. 14,
2015).
9 While Motta, Fernandes Rocha Advogados has represented Petrobras in the past, my
firm is not involved in any respect with the instant litigation.
10 SE (Foreign Award) 5206 AgRg (special appeal according to specific court

regulations), Reporting Judge: Seplveda Pertence, Full Session, Dec. 12, 2001.
11 Organization of American States, Inter-American Convention on International

Commercial Arbitration, Jan. 30, 1975, O.A.S.T.S. No. 42, 1438 U.N.T.S 245, available
at [www.oas.org/juridico/english/sigs/b-35.html].
12 New York Convention Countries, New York Arbitration Convention,

[www.newyorkconvention.org/contracting-states/list-of-contracting-states] (last visited
Apr. 14, 2015).
13 Law n. 6,404, of Dec. 15, 1976, as amended by Law n. 9.457, of May 5, 1997 and
Law n. 10.303, of Oct. 31, 2001 (Braz.).
14 Article 109 provides, in its entirety:

Neither the bylaws nor a general meeting may deprive a shareholder of the right:
I to participate in the corporate profits;
II to participate in the assets of the corporation in the case of liquidation;
III to supervise the management of the corporate business as provided for in this Law;
Pgina 24
IV of first refusal in the subscription of shares, founders shares convertible into

shares, debentures convertible into shares and subscription bonuses, according to
articles 171 and 172;
V to withdraw form the corporation in the cases provided for in this Law.
Paragraph 1. The shares of each class shall confer equal rights upon their holders.
Paragraph 2. The means provided by the law to shareholders to enforce their rights
cannot be overridden either by the bylaws or by any general meeting.
Paragraph 3. The corporations 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.
15 See Market Arbitration Panel, BM&F Bovespa, (Mar. 30, 2012).

[www.bmfbovespa.com.br/en-us/download/EmpresasAderiramCamaraI.pdf].
16 It is the case that shortly after the amendment to the BCL in 2001, a question was
raised as to whether corporate bylaws could be seen as adhesion contracts given that
acquiring shareholders lack an opportunity to negotiate terms or seek modification of the
existing bylaws at the time they purchase shares. There was some suggestion, including
in my book Reforma da Lei das S.A. comentada (Comments on Corporation Law Reform)
(Renovar, 2002), that it might be prudent for shareholders acquiring shares after the
adoption of an arbitration bylaw to sign a separate document manifesting their assent to
be bound by the arbitration provision. The only practicable way to effectuate this
suggestion for publicly traded companies would have been for Bovespa to amend its
forms to include disclosure language notifying purchasers of shares about the existence
of arbitration bylaws, and require investors to sign the form, thereby acknowledging
their consent to be bound by the arbitration bylaw. However, Bovespa never amended
its forms, and, to the contrary, continued to encourage companies to include mandatory
arbitration provisions in their bylaws. In light of the evolution of the Brazilian law of
arbitration since 2001, as well as Bovespas position with respect to arbitration bylaws,
there can be no doubt now that acquiring shareholders of a company manifest their
acceptance to the terms and conditions of a companys bylaws, including the arbitration
provision, when they acquire shares of the company, and therefore need not sign a
separate document acknowledging the arbitration provision in order to be bound.
17 See Petrleo Brasileiro S.A. Petrobras, Annual Report (form 20-F), 31 (June 19,
2003).
18 See Minutes of the Shareholders Meeting for Petrleo Brasileiro S.A. Petrobras
(June 10, 2002) (filed with the Junta Comercial do Estado do Rio de Janeiro on June 26,
2002) (attached hereto as Appendix C, with English translation of excerpt).
19 See Petrleo Brasileiro S.A. Petrobras, Registration Statement (Form F-3), 5 (Dec.
11, 2009) (If we choose to issue preferred shares or common shares, they may be
evidenced by ADRs and you will hold them indirectly through ADSs. The underlying
preferred shares or common shares will be directly held by a depositary.).
20 See Petrleo Brasileiro S.A. Petrobras, Annual Report (Form 20-F), 20 (Apr. 30,
2014) (noting that the rights of an ADS holder () are derivative of the rights of holders
of our common or preferred shares).
21 See Rules of the Market Arbitration Chamber, BM&F Bovespa,

[www.bmfbovespa.com.br/en-us/download/Regulation.pdf] (last visited Mar. 10, 2015).
22 See Market Arbitration Chamber, BM&F Bovespa,

Pgina 25
[www.bmfbovespa.com.br/en-us/rules/market-aribitration-panel-cam/market-arbitration-panel-cam.asp
23 Capitalized terms not defined here have the meaning ascribed to them in my opening
report dated April 17, 2015.
24 Expert Report of rica Gorga (Gorga Report) at 27.
25 Lei n. 6.404, de 15.12.1976 (Law n. 6.404, of Dec. 15, 1976), as amended by Lei n.
9.457, de 05.05.1997 (Law n. 9.457, of May 5, 1997) and Lei n. 10.303, de 31.10.2001
(Law n. 10.303, of Oct. 31, 2001) (Braz.), translation available at
[www.cvm.gov.br/export/sites/cvm/subportal_ingles/menu/investors/anexos/law-6.404-ing.pdf].
26 See, e.g., Bernard S. Black, Antonio Gledson de Carvalho & rica Gorga, Corporate
governance in Brazil, 11 Emerging Markets Review 21, 34 (2010); rica Gorga, The
Impact of the Financial Crisis on Nonfinancial Firms: The Case of Brazilian Corporations
and the Double Circularity Problem in Transnational Securities Litigation, 16.1
Theoretical Inquiries of Law 131, 133-34 (2015).
27 See Gorga Report at 10-11 ((T)he arbitration clause included in Petrobras bylaws is
an adhesion contract that requires express consent to its terms, and for this reason
cannot be deemed enforceable against shareholders who have not expressly agreed with
the arbitration clause).
28 While an adhesion contract is not defined in the BCL, Article 54 of the Brazilian
Code of Consumer Defense and Protection defines an adhesion contract as a contract
whose clauses have been approved by the competent authority or established
unilaterally by the product or service supplier without the consumer having had a chance
to substantially change its content. Lei n. 8.078, de 11.09.1990 (Law n. 8.078, of Sept.
11, 1990) (Braz.), translation available at
[www.procon.rj.gov.br/procon/assets/arquivos/arquivos/CDC_Novembro_2014_Ingles.pdf].
29 Moreover, (e)ven if we proceed on the basis of the concept of adhesion present in

the Civil Code and not the Consumer Defense Code, which is clearly incompatible with
the reality of companies, we would still not reach the classification of company bylaws as
an adhesion contract. Raquel Stein, Arbitrabilidade no direito societrio (Arbitrability of
Corporate Law) 140 (Renovar, 2014) (Braz.) (relevant excerpts, with translations,
attached hereto as Appendix A).
30 See infra 17-21 addressing Professor Gorgas incorrect assertion that arbitration
bylaws must be approved unanimously by shareholders.
31 Carlos Alberto Carmona, Arbitragem e Processo Um Comentrio Lei n.9.307/1996

(Arbitration and Procedure: Comments to Law n. 9.307/1996) 111 (Atlas, 3rd ed. 2009)
(Braz.) (relevant excerpts, with translations, attached hereto as Appendix B).
32 Luiz Antonio Scavone Jr., Manual de Arbitragem (Arbitration Manual) 51 (Revista dos
Tribunais, 4th ed. 2011) (Braz.) (relevant excerpts, with translations, attached hereto as
Appendix C).
33 See Gorga Report at 9 (quoting Modesto Carvalhosa & Nelson Eizirik, A nova Lei das
S/A (The New Corporations Law) 184 (Saraiva 2002) (Braz.)).
34 Id. at 26.
35 Id. at 25.
36 Cantidiano Report 30 n. 13.
Pgina 26
37 On the contrary, in 2013, the First Forum on Commercial Law issued a series of
approved statements of Brazilian corporate law, which reflect the consensus views of
over 170 leading lawyers, judges, and public officials specializing in the field, who agree
that acquiring shareholders do not need to expressly consent in writing in order to be
bound by an arbitration bylaw. Among the 57 principles published in March 2013 are the
following:
16. The purchaser of quotas or shares adheres to the articles of association or bylaws in
matters referring to the clusula compromissria (arbitration clause) found therein; and
so will be bound by the chosen provision for arbitral jurisdiction, independent of any
signature and/or specific statement in that regard.
19. The Brazilian Consumer Code does not apply to the relationships between
partners/shareholders or between them and the company.
Conselho da Justia Federal, I Jornada de Direito Comercial (First Forum on Commercial

Law), Centro de Estudos Judicirios 52 (2013) (Braz.) (emphasis added) (relevant
excerpts, with translations, attached hereto as Appendix D).
38 See Nelson Eizirik, Opinio jurdica: Quem se submete arbitragem na S.A.? (Legal
opinion: Who submits to arbitration in Corporations?), Valor Online, Aug. 31, 2009, at 1
(Braz.) (relevant excerpts, with translations, attached hereto as Appendix E) (In this
article, I partially alter some positions that I once defended concerning who is subject to
the arbitration clause included in corporation bylaws).
39 Nelson Eizirik, A Lei das S/A comentada (Comments on the Brazilian Corporate Law)
616 (Quartier Latin 2011) (Braz.) (emphasis added) (relevant excerpts, with
translations, attached hereto as Appendix F); see also Eizirik (2009), supra note 16, at
2.
40 Eizirik (2011), supra note 17, at 617 (emphasis added); see also Eizirik (2009), supra
note 16, at 2.
41 Gorga Report at 29.
42 See id. at 28-29, 33-36.
43 See Cantidiano Report 24 (citing publicly available list on website of the Market
Arbitration Chamber of over 160 companies that have adopted bylaw provisions
mandating arbitration since the amendment to the BCL in 2001, including Petrobras);
see also Eizirik (2011), supra note 17, at 611 n.1499 (noting that by the end of 2010, a
total of 175 companies had arbitration agreements in their bylaws, including 18
companies listed on Level 2, 38 companies listed on Level 1, 116 companies listed on
Novo Mercado, 1 company listed on Bovespa Mais, as well as Petrobras and Gradiente
which are not listed on any of those segments).
45 See Cantidiano Report 26.
46 Black, Gledson de Carvalho & Gorga, supra note 4, at 34.
47 See infra 21 addressing Professor Gorgas argument that an arbitration bylaw

adopted without unanimous shareholder approval infringes the constitutional rights of
minority shareholders.
48 Gorga, supra note 4, at 133-134.
Pgina 27
50 See Marcelo Dias Gonalves Vilela, Arbitragem no Direito Societrio (Arbitration in

Corporate Law) 202 (Mandamentos 2004) (Braz.) (relevant excerpts, with translations,
attached hereto as Appendix G) ((R)equiring unanimity for the adoption of the
arbitration clause within the company means relegating the use of arbitration to disuse
in this specific field of law, since the dynamics of corporate law and the constant changes
in the composition of the shareholder structure are incompatible with such a
requirement).
51 See BCL Art. 221 (Transformation requires the unanimous consent of the partners or
shareholders) (emphasis added); BCL Art. 294 (Provided that the shareholders so
resolve unanimously, payment of shares of the profits may be made to officers by
corporations to which this article applies) (emphasis added).
52 BCL Art. 136. Article 136 applies to certain specified corporate actions, such as
mergers, division or dissolution of the corporation, reduction of dividends, or creation of
preferred shares. Id. Article 129 provides that the resolutions of a general meeting shall
be passed by a simple majority of votes, abstentions not being taken into account. BCL
Art. 129. Because there is no unanimity requirement, the most that can be required for
the adoption of arbitration bylaws is compliance with Article 136.
53 See Gorga Report at 8 (citing Carmona, supra note 9, at 111; Scavone, supra note
10, at 53). Notably, even Carmona and Scavone agree that all future shareholders
acquire shares subject to all of a companys bylaws, including an arbitration provision.
See infra 9.
54 See e.g., Pedro A. Batista Martins, A Arbitragem nas Sociedades de Responsabilidade

Limitada (Arbitration in the Limited Partneships), in Reflexes sobre Arbitragem In
Memoriam do Desembargador Cludio Vianna de Lima (Considerations about Arbitration
In Memoriam of Desembargador Cludio Vianna de Lima) (LTr 2002) (Braz.); Luis
Loria Flaks, A Arbitragem na Reforma da Lei das S.A. (Arbitration in the Amendment of
the Corporation Law), 131 Revista de Direito Mercantil, Industrial, Econmico e
Financeiro 100-121 (2003) (Braz.) (relevant excerpts, with translations, attached hereto
as Appendix H); Vilela, supra note 28, at 200-02; Eizirik (2009), supra note 16; Eizirk
(2011), supra note 17.
55 Until recently, the only issue as to which there remained some debate among
scholars regarding the binding impact of an amendment to adopt an arbitration bylaw
related to dissenting shareholders who expressly voted against the arbitration bylaw. As
of 2011, Eizirik expressed the view that those shareholders who dissented at the time an
arbitration bylaw is adopted could not be bound by the arbitration provision unless they
subsequently signed an adhesion term. On the other hand, Pedro Batista Martins has
maintained the position since the 2001 amendment to the BCL that all shareholders are
bound by a validly adopted arbitration provision in a companys bylaws, including
dissenting shareholders. See Martins (2002), supra note 32; Pedro A. Batista Martins,
Arbitragem no direito societrio (Corporate Law Arbitration) 103 (Quartier Latin 2012)
(relevant excerpts, with translations, attached hereto as Appendix I) ((T)he outvoted
dissident minority will be bound to the binding arbitration clause); id. at 142 ((F)rom
the standpoint of the shareholder who did not approve the statutory amendment to
introduce the arbitration convention () the transfer of shares of a corporation that has
a binding clause in its bylaws, binds the assignee for all legal effects and purposes); see
also Flaks, supra note 32, at 108 (The intent of the law (BCL Art. 109(3)), according to
all indications, was to allow the company to resolve, by majority vote, to include an
arbitration clause in its bylaws and, in doing so, bind all of its shareholders to said
clause.); Vilela, supra note 28, at 200-01 (Corporate decisions, as a rule, are made by
a simple majority of the share capital, unless otherwise provided for by law or in a
contract. In the absence of such provisions, the collective decision of the shareholders,
Pgina 28
made by majority voting, even if the decision regards the court to be elected to settle
any future disputes arising out of the companys operations, is binding on all absent or
dissident shareholders).
56 Eizirik (2009), supra note 16, at 2.
58 A copy of the 2015 Legislation, together with an English translation, is attached

hereto as Appendix J. The 2015 Legislation was presented by the drafting commission to
the Brazilian Senate on October 2, 2013. See Project de Lei do Senado, n. 406, de 2013
(Senate Law Project, n. 406, of 2013), Projetos e Matrias Legislativas,
[www.senado.gov.br/atividade/materia/detalhes.asp?p_cod_mate=114641] (last visited
May 21, 2015) (Braz.).
59 See Proposies em fase de sano (Propositions in Face of Sanction), Relaes

Institucionais (May 14, 2015),
[www.relacoesinstitucionais.gov.br/sobre/assuntosparlamentares/projetos-de-lei-em-fase-de-sancao]
(Braz.). Unless the President vetoes the bill on or before May 26, 2015, the 2015
Legislation will become law.
60 2015 Legislation at 4.
61 Id. at 1.
62 Id. at 4.
63 It is the case that the 2015 Legislation does create a new right of shareholders who
dissent at the time that an arbitration bylaw amendment is voted upon, in certain
circumstances, to withdraw from the company by means of reimbursement of the value
of its shares, id., but with respect to the issues discussed above that (i) arbitration
bylaws are not adhesion contracts, (ii) such bylaw amendments do not require
unanimous approval by shareholders, and (iii) once validly adopted, an arbitration bylaw
binds all future shareholders the 2015 Legislation does not change the law, but rather
represents existing Brazilian law.
65 Id. at 15 (citing T.J.D.F.T., Ap. Civ. n. 20110111045065APC (Civil Appeal n.

20110111045065APC), Relator: Des. Simone Lucindo, 8.13.2014, Dirio da Justia (DJ),
08.21.2013 (Braz.) (Gorga Report App. B)).
66 Id. (quoting Gorga Report App. B at 6).
67 Gorga Report App. B at 6.
68 Id. at 5-6.
69 See REsp 1460522 DF, Superior Tribunal de Justia,

[https://ww2.stj.jus.br/processo/pesquisa/] (last visited May 21, 2015) (Braz.).
71 Cantidiano Report 17.
73 Professor Gorga misrepresents paragraph 21 of my initial report to suggest that I

Pgina 29
argued that BCL Article 109 paragraph 3 binds shareholders to arbitration bylaws
without requiring shareholder consent. See Gorga Report at 24-25. In paragraph 21, I
explained that the purpose of BCL Article 109 paragraph 3 was to encourage
shareholders and corporations to resolve their disputes through arbitration, as well as to
provide a mechanism to bind shareholders and corporations to arbitration provisions
included in corporate bylaws. See Cantidiano Report 21. As I made clear in the
following paragraph, under BCL Article 109 paragraph 3, acquiring shareholders manifest
their assent to be bound by the arbitration provision when they acquire shares and are
deemed to have consented to arbitration. Id. 22.
74 Gorga Report at 13 (citing S.T.F., Sentena Estrangeira Contestada n. 6.753

(Contested Foreign Award n. 6.753), Relator: Min. Maurcio Correa, 6.13.2002, Dirio da
Justia (DJ), 192, 10.4.2004 (Braz.)).
75 See Petroleo Brasileiro S.A. Petrobras, Annual Report (Form 20-F), 31 (June 19,
2003).
76 Gorga Report at 16 (summarizing the requirements of BCL Article 124).
77 Petroleo Brasileiro S.A. Petrobras, Edital de Convocao (Notice of Meeting) (Feb.

25, 2002) (Braz.) (attached hereto, with translated excerpts, as Appendix K).
78 Petroleo Brasileiro S.A. Petrobras, Ata das Assemblias Gerais Extraordinria e

Ordinria (Minutes of the Special and Regular General Meetings), 1 (Mar. 22, 2002)
(Braz.) (attached hereto, with translated excerpts, as Appendix L).
79 See id. at 11.
80 See id. at 5.
81 See id. at 1, 2, 5, 11.
82 Parecer/CVM/SJU n. 051/1978 (Opinion/CVM/SJU n. 051/1978), Comisso de Valores

Mobilirios, 10 (Braz.) (attached hereto, with translated excerpts, as Appendix M).
83 See BCL Art. 286 (Proceedings to annul resolutions made at a general or special
meeting of shareholders which has been called or opened otherwise than in accordance
with the law or bylaws, or which has been the subject of error, bad faith, fraud or
misrepresentation, shall not be commenced after a period of two years has elapsed from
the date of the resolution).
85 Id. at 18.
86 Id. at 3.
87 See Rules of the Market Arbitration Chamber, BM&F Bovespa, 1.4

[www.bmfbovespa.com.br/en-us/download/Regulation.pdf] (last visited May 21, 2015)
(The parties that elect the (MAC) shall be bound by the Rules in force on the date on
which a Request for Administration proceedings is filed with the Arbitration Chambers
Secretariat, except when otherwise agreed).
88 See Rules of the Market Arbitration Chamber, BM&F Bovespa,

[www.bmfbovespa.com.br/en-us/download/Regulation.pdf] (last visited May 21, 2015).
Pgina 30
90 See id. at 11 (The positive rule (in Article 109 paragraph 3) does not refer to
disputes with managers of the corporation).
91 See id. (Carvalhosa and Eizirik argue that the arbitration clause is not enforceable
against managers (board members and officers) of the corporation).
92 Eizirik (2011), supra note 17, at 615.
93 See Gorga Report at 23.
94 See Minutes of the Special and Regular General Meetings, supra note 56, at 5.
95 See Gorga Report at 11, 29.
96 Id. at 30.
97 See id. at 12 (The legal doctrine of Carvalhosa and Eizirik also adopts a restrictive
and ipsis litteris definition of shareholders, not expanding the arbitration provision to
other security holders such as ADR or debenture holders).
98 See Gorga Report at 30-33.
99 Article 6 of the BAA provides:

Article 6 In the event of absence of provision as to the method of commencing the
arbitration, the interested party shall notify the other party, either by mail or through
any other means of communication, with confirmation of receipt, of its intention to
commence arbitral proceedings, fixing a date, time and place for signature of the
submission agreement (compromisso).
Sole Paragraph: If the notified party fails to appear, or it refuses to sign the submission
agreement (compromisso), the other party may file the action provided for in Article 7 of
this Law, at the State Court originally competent to decide the case.
Lei n. 9.307, de 23.09.1996 (Law n. 9.307, of Sept. 23, 1996) (Braz.), translation
available at [http://cbar.org.br/site/legislacao-nacional/lei-9-30796-em-ingles].
100 BAA Article 7 provides:

Where there is an arbitration clause but one of the parties shows resistance as to the
commencement of arbitration, the interested party may request the court to summon
the other party to appear in court so that the submission agreement (compromisso) may
be signed; the judge shall designate a special hearing for this purpose.
101 BAA Art. 6.
102 See Carmona, supra note 9, at 156.
103 Id.
104 Nota do Editorial. A numerao das notas de rodap do presente texto seguiu a
ordem disposta no original.
105 On June 10, 2015, in a conference call with the Court, plaintiffs lead counsel
requested permission to file a surreply expert report to address specific issues that they
claimed were raised for the first time in defendants reply report. The Court granted that
request based on their representation that the proposed surreply report would be limited
to the narrow issues specified by lead counsel. The report that lead counsel filed went far
beyond those issues. See ECF No. 175-1. As a result, plaintiffs lead counsel burdened
Pgina 31
both the Court and defense counsel with duplicative and unauthorized argument.
Pgina 32

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Processo em curso na justia norte-americana

PROCESSO EM CURSO NA JUSTIA NORTE-AMERICANA

rea do Direito: Comercial/Empresarial; Arbitragem

- A)Parte da petio inicial, de 27.03.2015, que se refere ao direito brasileiro - B)Parecer

A) Parte da petio inicial, de 27.03.2015, que se refere ao direito brasileiro

A) Part of the Initial Petition of 03.27.2015, regarding Brazilian Law

XIII ADDITIONAL CLASS CLAIMS BROUGHT UNDER THE LAW OF BRAZIL

364. Plaintiff repeats, incorporates, and realleges paragraphs 1 through 357 by

377. Plaintiff repeats, incorporates, and realleges paragraphs I through 357 by

380. Plaintiff repeats, incorporates, and realleges paragraphs I through 357 by

384. Plaintiff repeats, incorporates, and realleges paragraphs I through 357 by

B) Expert report of Luiz Leonardo Cantidiano

I, LUIZ LEONARDO CANTIDIANO, declare as follows:

2. While practicing as a lawyer at Motta, Fernandes Rocha Advogados, I also assumed

4. I am a member of a number of professional organizations, including the Superior

8. As I understand the allegations of the Consolidated Complaint, it purports to assert

9. As I further understand the allegations of the Consolidated Complaint, it also purports

10. Article 58 of Petrobrass bylaws provides:

Disputes or controversies involving the Corporation, its shareholders, managers and

12. Article 58 of Petrobrass bylaws also requires Petrobras Shareholders to arbitrate

bound by the arbitration clause.

36. Count IV purports to assert claims on behalf of Petrobras Shareholders against

37. Count V purports to assert claims on behalf of Petrobras Shareholders against

43. Moreover, as I understand the allegations of the Consolidated Complaint, in addition

terms specified by the bylaw.

49. Moreover, the Kompetenz-Kompetenz principle is also incorporated by Article 8 of

Executed on the 17th day of April 2015 in Rio de Janeiro, Brazil.

LUIZ LEONARDO CANTIDIANO

C) Reply Report of Luiz Leonardo Cantidiano

I, Luiz Leonardo Cantidiano, declare as follows:

7. Petrobras Shareholders are bound by the mandatory arbitration provision in Article 58

11. This criticism of my initial report is unfounded. I acknowledged in my report, and do

13. As Eizirik has made clear:

19. In arguing that arbitration bylaws must be approved unanimously by shareholders,

41. Professor Gorgas reliance on the restrictive definition of shareholders advocated

43. In seeking to challenge my statement regarding the well-established principle of

Executed on the 22nd day of May 2015 in Rio de Janeiro, Brazil.

LUIZ LEONARDO CANTIDIANO

Defendants motion is otherwise denied. A memorandum explaining the reasons for

Dated: New York, NY

JED S. RAKOFF, U.S.D.J.

E) Part of the complementary argumentation of the North American Judge Award of

Second, plaintiffs expert opines that an arbitration clause must be approved

However, it is a bedrock principle that a party cannot be required to submit to

Dated: New York, NY

July 30, 2015

JED S. RAKOFF, U.S.D.J

* Disponvel em: [www.nysd.uscourts.gov/pacer.php], acesso em: 03.07.2015.

5 A copy of Petrobrass bylaws is attached hereto as Appendix B.

6 Consolidated Complaint 15.

10 SE (Foreign Award) 5206 AgRg (special appeal according to specific court

11 Organization of American States, Inter-American Convention on International

12 New York Convention Countries, New York Arbitration Convention,

14 Article 109 provides, in its entirety:

I to participate in the corporate profits;

II to participate in the assets of the corporation in the case of liquidation;

IV of first refusal in the subscription of shares, founders shares convertible into

15 See Market Arbitration Panel, BM&F Bovespa, (Mar. 30, 2012).

21 See Rules of the Market Arbitration Chamber, BM&F Bovespa,

22 See Market Arbitration Chamber, BM&F Bovespa,

24 Expert Report of rica Gorga (Gorga Report) at 27.

29 Moreover, (e)ven if we proceed on the basis of the concept of adhesion present in

31 Carlos Alberto Carmona, Arbitragem e Processo Um Comentrio Lei n.9.307/1996