Os deveres dos administradores de sociedades anônimas abertas: estudo de casos

Abstract

The present thesis intends to demonstrate, through case studies, that the duties of directors and officers of listed companies are divided into three main pillars: (i) duty of care, ( ii) duty of loyalty, and (iii) du ty to inform. It is our view that, by the case method, it is possible to clarify the standards to be followed by directors and officers of listed companies. The above mentioned duties, in many situations, are broad and subj ective, which may generate insecurity regarding its compliancy by officers and directors, especially those of listed companies, in light of the stock market obligations. This justifies the importance to establish standards to comply with such duties. In this sense, we believe that for the duty of care, the focus should be shifted to the procedure used to make a decision, similar to the business judgment rule developed by American Law. As regards the duty of loyalty, we propose the application of the standar d entire fairness, that is, fairness in the procedure and substance of the decision. Furthermore, we suggest the insertion of a sole paragraph in article 153 of the Brazilian Corporate Law with the following draft: Directors and officers shall adopt procedures that shall lead to an informed, reflected and uninterested decision. Last, we suggest that article 156 of the Brazilian Corporate Law be interpreted as so to be applied to directors and officers elected by the controlling shareholder in transactions i nvolving such controlling shareholders. Moreover, we propose that the burden of proof be shifted to the director or officer in case of potential conflict of interest and non compliancy of the procedures established in article 156 of the Brazilian Corporate Law