Conflito de interesses no ambiente societário: exegese e proposta de lege ferenda

Abstract

From the review of the reasons justifying the adoption of the majority principle as a general criterion for setting out decisions in shareholders’ meetings, the paper analyzes the special rules that are applicable in decisions involving any issue affected by a conflict of interest of a shareholder (particularly the controlling shareholder) or manager. In this case, in view of the inconsistency of the interest of the conflicted party in relation to the assumable “common interest of the shareholders” (the “company’s interest”), it would be necessary to apply another legal rule to establish the company’s will, in order to avoid the risk of expropriation of the company. The two main options for addressing the situation of conflict of interest at the corporate level are the so-called “formal conflict” (whose nature is of a property rule) and “material” (whose nature is of a liability rule) regimes, according to which, respectively, either the conflicted party would be prevented from voting (which would shift the decision-making power from the majority to the nonconflicted majority), or the conflicted party would be allowed to vote (giving authority to the controlling shareholder to decide on the two ends of the transaction). In the last hypothesis, this would be tempered by the rule that, in case of any challenge, the conflicted party would have to prove in court (shifting the burden of proof) the compliance of the decision with some specific standard set out by law. As the formal rule has a high cost of negotiation (once that the majority cannot always convince the minority to approve transactions, affected with a conflict of interest, that would be actually good for the company) and the material rule has a high cost of adjudication (since it will be up to the Judiciary/Arbitration to define the details in the business, which adds up a substantial risk of erroneous and late decisions), the thesis, based on the finding that Law 6404/76 adopted the formal conflict in Paragraph 1 of Article 115, proposes the possibility of using conflictdepuration mechanisms that, by reducing the risks of “condemnatory decisions”, could enable the vote by the conflicted party, provided that it is cast in accordance with the position approved by a truly independent committee. Management could decide to set up a truly independent committee (chosen mostly by shareholders unrelated to the conflicted party) that would technically analyze the issue to attest to the convenience of concluding the transaction as proposed, a hypothesis in which the “limited” vote of the conflicted shareholder would be released, that is, the vote would be possible only if in full harmony with the position of the independent committee. Thus, the cost of negotiation would be reduced without increasing the risks of expropriation of the minority, achieving increased transactional efficiency, with positive effects for the Brazilian business reality. In order to obtain greater legal certainty, lege ferenda adjustments to the LSA are proposed in the end.