Conflicts of Interests in Shareholders’ Meetings of Brazilian Corporations: the Legal Framework according to Scholars and the Case Law of the Brazilian Securities and Exchange Commission

Juliana Bastianello Baldin Martins, Director - Legal, GTIS Partners LP, Brazil

The issue addressed in this paper relates to the interpretation, according to Brazilian scholars and the case law of the decision board of the Brazilian Securities and Exchange Commission, of the provisions governing conflicts of interests in shareholders’ meeting of Brazilian corporations. More specifically, this paper envisions to answer how the rules regarding conflicts of interests in shareholders’ meetings of Brazilian corporations should be interpreted and applied. To that end, we will analyse opinions of scholars in respect to the interpretation of the caput and first paragraph of article 115 of Law n. 6,404/76, as well as two cases judged by the decision board of the Brazilian Securities and Exchange Commission. After a brief introduction on the legal background in Brazil and abroad on the matter, this paper specifically analyses the interpretation of the caput and the first paragraph of article 115 of Law n. 6,404/76. Articles 116 and 117 of Law 6,404/76, which establish specific duties of the controlling shareholders and complement the legal framework regarding the conflicts of interests in Brazilian corporations, will not be analysed. Key words: Conflicts of Interests, Abuse of Voting Rights, Undue Advantages, Private Benefits, Brazilian corporations, Brazilian Securities and Exchange Commission.

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Brazil Regulation Property June 2018 Vol.11, No. 43, Spring 2018

Juliana Bastianello Baldin Martins

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Juliana Bastianello Baldin Martins joined GTIS Partners on May 2011 and is currently a Director at the firm. Mrs. Baldin Martins is responsible for legal matters pertaining to real estate, corporate and contracts activities. Mrs. Baldin Martins has over six years of experience in corporate law. Prior to joining GTIS Partners, she was a lawyer at Machado, Meyer, Sendacz e Opice Advogados, one of the largest law firms in Brazil, where she spent over three years dedicating herself to mergers, acquisitions and corporate restructuring transactions. Prior to Machado, Meyer, Sendacz e Opice, she was an intern at TozziniFreire Advogados, also one of the largest law firms in Brazil, where she dedicated herself to capital markets transactions for over three years. As a lawyer at Machado, Meyer, Sendacz e Opice and as an intern at TozziniFreire Advogados she rendered services to the largest corporations and investment funds acting in the Brazilian real estate and capital markets segments. For two consecutive years, 2010 and 2011, Mrs. Baldin Martins contributed with comments on Brazilian corporate law to the “Doing Business”, a publication of the World Bank and the International Finance Corporation comparing business regulation in several economies. Mrs. Baldin Martins graduated from São Paulo University Law School (USP) in 2007, completed her Master of Business Administration at Fundação Getúlio Vargas (FGV) in 2011 and obtained a post-graduation degree in Tax Law at Fundação Getúlio Vargas (FGV) in 2016.

GTIS Partners LP

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GTIS Partners is a leading real estate investment firm in the Americas, headquartered in New York with offices in São Paulo, San Francisco, Los Angeles, Atlanta, Paris and Munich. The firm was founded in 2005 by Tom Shapiro and is managed by President Tom Shapiro and Senior Managing Directors Thomas Feldstein, Josh Pristaw, João Teixeira, and Rob Vahradian. The leadership team is comprised of seasoned real estate professionals across multiple economic cycles with deep expertise in investment, development, asset management, legal and operations. The collective experience of the leadership allows GTIS to pursue and lead vertically integrated operating businesses in each of its chosen markets in the United States and Brazil. GTIS’ dedicated research professionals work hand-in-hand with its investment teams to identify macro trends early, including investing in Brazil in 2005, United States residential in 2009 and single-family rental as an emerging asset class in 2010. As a pioneer in its business fields, GTIS ranks among the largest real estate private equity investors in Brazil, and a leading diversified residential investor in the United States. GTIS takes a local approach to real estate investing with on-the-ground teams in seven key markets with 86 employees and $4.6 billion of gross real estate assets under management. With broad expertise in structuring, design, development and asset management, GTIS professionals oversee projects in residential, office, industrial/logistics and hospitality from concept to completion.

Brazil Regulation Property June 2018 Vol.11, No. 43, Spring 2018

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