Carbonext Tecnologia em Soluções Ambientais Ltda. v. Amazon Imóveis (Voluntary Carbon Market)
Jurisdiction: 44a Vara Civel of Sao Paolo
Side A: Carbonext Tecnologia em Soluções Ambientais Ltda
Side B: Amazon Imóveis
Core objectives: Enforcement of contractual obligations related to carbon credits.
Carbonext is a company dedicated to the preservation of the Amazon, working in the development and implementation of carbon credit projects (REDD+, Reducing Emissions from Deforestation and Forest Degradation), whose objective is to reduce greenhouse gas (GHG) emissions and prevent deforestation in the Amazon rainforest. Individuals and companies can purchase these assets' carbon credits on the voluntary market to offset GHG emissions. Carbonext acquires carbon credits from projects it manages or from assets purchased from other companies and resells them to finance environmental preservation and the development of local communities in the Amazon. The amounts obtained through the purchase and sale of carbon credits fund the environmental preservation and development of local communities in the Amazon Forest. Amazon Imóveis owns 3% of the carbon credits generated by the REDD+ project called “The Envira Amazonia Project – A Tropical Forest Conservation Project in Acre, Brazil.”
Carbonext and Amazon Imóveis made a contract for the purchase of carbon credits. Amazon Imóveis promised to sell and transfer 331,080 carbon credits. Carbonext paid the price by December 31, 2021. The debtor had to transfer the assets within up to five business days, counted from the signing of the contract on February 26, 2021. In line with market practice, Carbonext requested the transfer of carbon credits as it sold to companies interested in neutralizing GHG emissions. Initially, Amazon Imóveis transferred 5,000 credits to the claimant, referring to the 2017 harvest. In April 2017, Carbonext asked Amazon Imóveis to transfer 16,990 units of carbon credits, which they denied. Carbonext sent a pre-judicial letter requesting the transfer of credits, which was not complied with.
On July 12, 2021, Carbonext filed a lawsuit to execute the contractual obligation under the Civil Procedure Code (Federal Law 13,105/2015). The plaintiff requires the (i) transfer of 326,080 carbon credits by Amazon Imóveis to Carbonext within five business days and (ii) for the court to set up a daily fine if the transfer of credits is not done.
On July 13, 2021, the court of first instance issued an official decision to warn the debtor to satisfy the obligation within fifteen days, under penalty of a daily fine. However, Amazon Imóveis did not fulfill the court order as it started judicial proceedings questioning the debt (motion to stay in execution, autonomous action no. 1088560-57.2021.8.26.0100 and interlocutory appeal with a request for preliminary injunction no. 2180421-19.2021.8.26.0000. The plaintiff requested the carbon credits' custodian, Carbonfund.org Foundation, to transfer the credits from Amazon Imóveis to the creditor, which was accepted by the court and complied with by Carbonfound. However, given non-compliance with the decision, Carbonext requested the payment of the amount related to the daily fine. Amazon Imóveis later informed the court that it had fully complied with the contractual obligations. Accordingly, the court extinguished the process on October 7, 2021, precluding the right to appeal for lack of procedural interest.
Amazon Imóveis later filed a motion alleging that (i) the court's sentence extinguishes the process without giving the appellant/executed party an opportunity to express their views regarding information brought by the appellee/executioner in its petitions; (ii) the fine established in the injunction was not confirmed in the sentence, therefore, it is not enforceable; and (iii) the deduction of the price by the appellant/executioner is improper. It requires a new integrative/clarifying pronouncement to remedy the ambiguity and annul the appealed judgment. This motion is still pending.