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Fabio Kujawski

Fabio Kujawski
55 11 3147 2795 kujawski@mattosfilho.com.br São Paulo – Paulista
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Experience

Fabio has worked with technology, data protection, telecom, intellectual property, media and entertainment matters for over 20 years, with a focus on transactions, regulatory and contractual issues. Fabio is the co-author and editor of the book “Legal Trends in Technology and Intellectual Property in Brazil” (2014), and is an officer of the Brazilian Association of Information Technology and Telecommunications Law (ABDTIC).

Education

Bachelor of Laws – Pontifícia Universidade Católica de São Paulo (PUC-SP);

Master of Laws in International Economic Relations – Pontifícia Universidade Católica de São Paulo (PUC-SP).

Recognitions

Análise Advocacia 500 – Chemical and Petrochemical (2020), Digital (2020) e São Paulo (2020);

Best Lawyers – Lawyer of the Year: Technology and Information Technology (2012 and 2014);

Chambers Brazil (antigo Chambers Latin America): – Telecommunications & Technology (2014 until 2021) e Data Protection (2021);

Euromoney Expert Guides – Best of the Best Latin America; Telecoms (2016);

IFLR 1000 Energy & Infrastructure – Leading Lawyer: Energy & Infrastructure, Project Development (2015 and 2016);

IFLR 1000 Financial and Corporate – Highly regarded: Project Development (2018 until 2020);

LACCA Approved – Administrative Law (2017 until 2021);

Latin Lawyer 250 – Telecoms & Media; Data, technology and privacy law (2020 and 2021) e Intellectual Property (2021);

Leaders League – Data Protection (2018), Media, Sports & Entertainment (2018) e Technology (2018);

The Legal 500 – TMT (2014 until 2019) e Intellectual Property (2017);

Who’s Who Legal – Government Contracts (2017 until 2019), Data – Telecoms & Media (2018 until 2020) e Data Privacy & Protection (2020);

Who’s Who Legal Brazil – TMT (2017), Government contracts; Data (2018 until 2020);

Who’s Who Legal Though Leaders – Data (2019).

Único. The Mattos Filho news portal

Authored publications

Mattos Filho in the media

With Fabio Kujawski
Lexology

Resolution assigning specific numbers for telecoms services approved in Brazil

Approved on 15 March 2022, Anatel Resolution No. 749/2022 determines the assignment of specific numbers for telecoms services. The new resolution aims to ensure that current regulations keep up with the sector’s rapid technological development, especially with regard to the internet of things (IoT) and machine-to-machine (M2M) solutions – ensuring compatibility, integrated operations and interconnection between networks.

Click to read the Lexology article.

Brazilian Supreme Court’s new ruling regarding the ISS on franchise agreements

During virtual court sessions held between May 22 and 28, 2020, the Brazilian Supreme Court (“STF”) decided that the levy of the Brazilian Tax on Services (“ISS”) on franchise agreements is constitutional. The case under analysis (Extraordinary Appeal No. 603,136) discussed the collection of ISS on a franchise agreement of a food supply franchise. 

In summary, the discussion on the levy of ISS focuses on the fact that Brazilian franchise laws, both the old (Law No. 8,955/1994) and the new (Law No. 13,966/2019), establish that the franchise system is one in which a franchisor authorizes a franchisee to use its trademark and other intellectual property rights, associated with the right to produce or provide products or services, as well as the right to use methods and systems for implementation and management of its business. In other words, the franchise agreement has a hybrid legal nature involving the “legal obligations ‘to give/deliver’ something and ‘to do’ something”. 

Historically, the STF had recognized “the provision of services” as the element for the levy of ISS referred to as a “legal obligation ‘to do’ something”, as verified in several rulings and in the STF’s Binding Precedent 31,  which rules that the levy of ISS on lease agreement transactions[1] is unconstitutional since it refers to a “legal obligation ‘to give/deliver’ something and not ‘to do’ something”.

However, with the present ruling, the STF changed its historical understanding and determined with the effect of general application that “The levy of ISS on franchise agreements (items 10.04 and 17.08 of the service list attached to Supplementary Law No. 116/2003) is constitutional.”

It should be noted that STF Justice Gilmar Mendes, in his winning vote, clarified that the Binding Precedent 31 shall not be applied in transactions of a hybrid legal nature.

Given the impact of this decision, the representatives of industry have informed that a Motion for Clarification will be filed requesting the modulation of the effects of the decision, in order for it to be applied prospectively only.

Our team will continue to follow the updates on the case and is at your disposal for any clarification. For more information on this subject, please contact our Intellectual Property and Tax practices.

[1] As recalled in the vote of Justice Celso de Mello and Justice Marco Aurelio, who diverged from the majority. 

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