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Contents
- Preliminary Material
- Dedication
- Foreword
- Preface
- Contents
- Table of Cases
- Brazilian Cases
- Supremo Tribunal Federal (Federal Supreme Court)(STF)
- Superior Tribunal de Justiça (Superior Court of Justice)(STJ)
- Tribunal de Justiça do Distrito Federal e dos Territórios (Tribunal of Justice of the Federal District and the Territories)(TJDF)
- Tribunal de Justiça do Estado de Rio de Janeiro (State Court of Rio de Janeiro)(TJRJ)
- Tribunal de Justiça do Estado de São Paulo (State Court of São Paulo)(TJSP)
- Tribunal Regional de Trabalho (Regional Labour Court)(TRT)
- Tribunal de Justiça de Santa Catarina (State Court of Santa Catarina)
- National Cases
- Brazilian Cases
- Table of Legislation
- Table of International Instruments
- List of Abbreviations
- Main Text
- 1 Economic and Legal Framework
- Preliminary Material
- 1.1
- 1.2
- 1.3
- 1.1 Anatomy and Paradigms of the Brazilian Economic System
- 1.2 Anatomy and Orientation of the Brazilian Legal System
- 1.3 Internationalization and Privatization
- 1.3.1 Regulation of Foreign Investment and Repatriation of Funds
- 1.3.2 The Status of Public International Law
- 1.3.3 International Economic Organizations and Brazil
- 1.3.4 Investment Treaties
- 1.3.5 Double Taxation Treaties
- 1.3.6 Free Trade Agreements: European Union—Mercosur
- 1.3.7 International Commercial Arbitration
- 1.3.8 The Constitutional Court’s Stance on Privatization
- 2 Contract Law
- Preliminary Material
- 2.1 Historical Roots and Structure
- 2.2 Party Autonomy, Choice of Law, and Corrective Justice
- 2.2.1 Enforcement of Contracts versus Control of Content and Conduct
- 2.2.2 Freedom to Choose the Applicable Contract Law
- 2.2.3 Extraordinary Relevance of Good Faith
- 2.2.4 Law on Economic Freedom—Restatement of Party Autonomy
- 2.2.5 Choice of Law Clauses
- 2.2.6 The Issue of the Code on Consumer Protection and Defence
- 2.2.7 Standard Form or Adhesion Contracts
- 2.2.8 Recommendations for Contract Negotiations
- 2.3 Legal Transactions: Formation, Form, Proof, and Interpretation
- 2.3.1 Formation of Contracts
- 2.3.2 Formal Requirements and Enforceable Instruments
- 2.3.3 Interpretation of Contracts
- 2.3.4 Representation: Agency and Mandate
- 2.3.5 Conditions, Specification of Time, and Burden of Proof
- 2.3.6 Challenging the Validity and Content of Contracts
- 2.3.7 Limitation and Cut-off Periods
- 2.3.8 Proof of Legal Facts and Formalized Private Instruments
- 2.4 Law of Obligations and General Contract Law
- 2.4.1 Structure
- 2.4.2 Obligation to Transfer Ownership in a Specific Good
- 2.4.3 Obligation to Transfer Goods Defined only by Class and Quantity
- 2.4.4 Alternative Obligations
- 2.4.5 Joint and Several Liability
- 2.4.6 Transfer of Claims
- 2.4.7 Performance of the Obligation—Performance by Third Parties
- 2.4.8 Judicial Readjustment of Obligations—Risk Allocation
- 2.4.9 Performance Voucher and Extinction of the Obligation
- 2.4.10 Legal and Contractual Subrogation
- 2.4.11 Waterfall of Payment in Case of Multiple Obligations
- 2.4.12 Novation of Obligations
- 2.4.13 Set-off (ipso facto)
- 2.5 Non-performance of Contracts
- 2.5.1 Structure of the Law on Non-performance
- 2.5.2 General Non-performance Rule
- 2.5.3 Delayed Performance—Payment Default
- 2.5.4 No Specific Regulation for Breach of Duty or Poor Performance
- 2.5.5 Loss and Damage
- 2.5.6 Interest According to the Law
- 2.5.7 Liquidated Damages and Contractual Penalties
- 2.5.8 Risk Allocation and Judicial Contract Adjustment
- 2.5.9 Formation of Contracts
- 2.5.10 Contracts for the Benefit of a Third Party
- 2.5.11 Hidden Defects
- 2.6 Specific Types of Contracts
- 2.6.1 Aleatory Contracts and Take-or-Pay Clauses
- 2.6.2 Preliminary Contracts and Pre-contracts
- 2.6.3 Revocation Clauses
- 2.6.4 Defence of Non-performed Contract and Defence of Uncertainty
- 2.6.5 Excessively Advantageous Contracts (Hardship)
- 2.6.6 Sale and Purchase Contracts
- 2.6.7 Construction Contracts
- 2.6.8 Loan Contracts
- 2.6.9 Insurance Contracts
- 2.6.10 Interlinked Contracts
- 2.7 Arbitration Clauses in Commercial Contracts
- 3 Extra-contractual Civil Liability (Tort Law) and Compliance
- Preliminary Material
- 3.1 Compliance and Tort Law
- 3.2 The Anatomy of Brazilian Tort Law
- 3.2.1 Influence of French Law
- 3.2.2 Illicit Act: Three Basic Elements
- 3.2.3 Abuse of Rights
- 3.2.4 Strict Liability or Objective Civil Liability
- 3.2.5 Strict Product Liability
- 3.2.6 Strict Liability for Workers and Employees
- 3.2.7 Liability of Owners of Buildings
- 3.2.8 Liability of Several Tortfeasors
- 3.2.9 Calculation of Indemnification
- 3.3 Extra-contractual Liability in the Context of Business Transactions
- 3.4 Directors and Officers Insurance
- 3.5 Piercing the Corporate Veil
- 4 Enterprise Law
- Preliminary Material
- 4.1 From Commercial to Enterprise Law
- 4.2 The Nature of the Enterprise and Business Organization
- 4.3 One-Person Enterprise with Limited Liability
- 4.4 The Choice Between Partnerships, LLCs, and Stock Corporations
- 4.5 General Part of Company Law
- 4.32
- 4.5.1 Partnership and Company Law
- 4.5.2 Companies and Partnerships Under Construction
- 4.5.3 Limited Commercial Partnership
- 4.5.4 Limited Liability Company
- 4.5.4.1 Legal Nature
- 4.5.4.2 Content of Articles of Association
- 4.5.4.3 Units (Quotas)
- 4.5.4.4 Business Administration
- 4.5.4.5 Audit Committee
- 4.5.4.6 Shareholder Assembly
- 4.5.4.7 Capital Increase and Decrease
- 4.5.4.8 Expulsion of Minority Shareholders and Appraisal of Compensation
- 4.5.4.9 Dissolution of the Company
- 4.5.5 Holdings and Groups of Companies
- 4.5.6 Liquidation or Dissolution
- 4.5.7 Change of Legal Form, Merger, Triangle Merger, and Division
- 4.5.8 Foreign Companies
- 4.5.9 Arbitration and Limited Liability Companies
- 5 Stock Corporation and Securities Market Law
- Preliminary Material
- 5.1 Introduction and Approach
- 5.2 Regulatory Competence of the Brazilian Securities Commission (CVM)
- 5.3 The Nature of Stock Corporations
- 5.4 Objectives of the Stock Corporation Act
- 5.5 Share Capital, Shares, and Securities
- 5.6 Purpose of the Corporation
- 5.7 Initial Public Offering
- 5.8 Mandatory Public Bids in Case of Delisting or Lack of Liquidity
- 5.9 Ordinary and Preferential Shares
- 5.10 Repurchase of Shares and Trading with Own Shares
- 5.11 Share Pledge and Fiduciary Ownership of Shares
- 5.12 Debentures or Corporate Bonds
- 5.13 Subscription Warrants
- 5.14 Establishment of the Stock Corporation
- 5.15 Shareholder Rights and Duties
- 5.16 Voting Rights and Related Party Transactions (Self-Dealing)
- 5.17 Controlling Shareholders
- 5.18 Shareholder Agreement
- 5.19 Non-resident Shareholders
- 5.20 Shareholder Assembly
- 5.21 Board and Directory—Corporate Governance
- 5.22 Audit Committee
- 5.23 Capital Increase
- 5.24 Financial Reporting
- 5.25 Dividends
- 5.26 Liability of Controlling Shareholders and Derivative Suits
- 5.27 Fraud on the Market and (Collective) Shareholder Arbitration
- 5.28 Market Manipulation
- 5.29 Corporate Groups (De Facto and Contract-Based Concerns)
- 5.30 Mixed Private–Public Enterprises
- 5.31 Consortium—Joint Venture
- 5.32 Investment Funds
- 6 Mergers & Acquisitions and Merger Control
- Preliminary Material
- 6.1 Private M&A
- 6.1.1 Introduction
- 6.1.2 Transactions on Units (Quotas) of Partnerships and LLCs
- 6.1.3 Representations and Warranties—Hidden Defects
- 6.1.4 Sandbagging and Material Adverse Change Clauses
- 6.1.5 Deferred Closing Agreements and Conditions Precedent
- 6.1.6 Covenants or Undertakings
- 6.1.7 Default, Default Remedies, and Indemnification Clauses
- 6.1.8 Pricing and Earn-out
- 6.1.9 Price Adaptation and Material Adverse Change
- 6.1.10 Completeness or Entire Agreement Clause
- 6.1.11 Post-M&A Arbitration and Expert Determination
- 6.2 Public M&A
- 6.2.1 Introduction
- 6.2.2 Rationale and Purpose of the Mandatory Bid Rule
- 6.2.3 Trigger Event of the Mandatory Bid Rule: Transfer of Existing Control
- 6.2.4 Authorization of Transfer of Control and Registration of the Public Offer
- 6.2.5 Payment of a Premium to Save Liquidity
- 6.2.6 Voluntary Takeover Bids—Competing Bids—Public to Private Deals (Delisting)
- 6.3 Mergers by Corporate Reorganization
- 6.3.1 The Structure of the Law on Reorganizations
- 6.3.2 Change of Legal Form
- 6.3.3 General Provisions on Mergers and Division (Split-up and Spin-off)
- 6.3.4 Mandatory Provisions of the Law on Reorganization Transactions
- 6.3.5 Common Features of all Three Types of Reorganization Transactions
- 6.3.6 The Reorganization Protocol
- 6.3.7 Document on the Reasons for the Reorganization
- 6.3.8 The Valuation Report by External Experts
- 6.3.9 Merger by Absorption of Legal Entities
- 6.3.10 Triangle Merger (Consolidation)
- 6.3.11 Division (Split-up and Spin-off)
- 6.3.12 Merger by Creation of a Wholly Owned Subsidiary (Integration of Shares)
- 6.3.13 Cash-out Mergers and the Typology of the Law
- 6.3.14 Integration of Shares and Quotation Guarantee
- 6.3.15 Reorganization in a Parent–Subsidiary Relationship
- 6.3.16 Post-M&A Arbitration
- 6.4 Merger Control
- 7 Recovery and Insolvency Law
- Preliminary Material
- 7.1 General Part of the Recovery and Insolvency Law
- 7.1.1 Anatomy of the Law
- 7.1.2 Structure of the RIL and Focus of Comments
- 7.1.3 Scope of Application
- 7.1.4 The Competent Court—Principal Establishment
- 7.1.5 Effects of the Commencement of Recovery Proceedings and the Insolvency Order
- 7.1.6 General Assembly of Creditors, Voting Rights, and Resolutions
- 7.1.7 Constitution and Function of the Creditors’ Committee
- 7.1.8 Arbitration and Mediation
- 7.2 Recovery Proceedings
- 7.2.1 Legitimacy to File for Recovery
- 7.2.2 Credits Subject to Recovery Proceedings
- 7.2.3 Restructuring Measures
- 7.2.3.1 Introduction
- 7.2.3.2 The Role of Article 50 RIL
- 7.2.3.3 Important Paradigms: Social Function of the Enterprise and its Economic Survival
- 7.2.3.4 Creation of Sub-classes of Creditors
- 7.2.3.5 Limits for Change of Payment Terms and Alteration of Security Interests
- 7.2.3.6 Restructuring of the Enterprise
- 7.2.3.7 Capital Increase
- 7.2.3.8 Transfer of Holdings and Change of Control
- 7.2.3.9 Change of Debtors’ Directors and/or Board Members
- 7.2.3.10 Emission of Securities and Debt-to-Equity Swaps
- 7.2.3.11 Dation in Payment
- 7.2.3.12 Transfer or Lease of Business Establishment
- 7.2.3.13 Sale of the Entire Distressed Enterprise
- 7.2.3.14 Establishment of a ‘Toxic Assets’ Entity (‘Bad Bank’ model) or a Work-out Vehicle
- 7.2.3.15 Invalidity of Clauses Trying to Change the Non-performance Rule of the RIL
- 7.2.4 Financing of Recovery (DIP Financing)
- 7.2.5 Judicial Decision on the Commencement of Recovery Proceedings
- 7.2.6 Recovery Plan and Declaration of Recovery Proceedings
- 7.2.7 Conversion of Recovery into Insolvency Proceedings
- 7.3 Insolvency
- 7.4 Cross-Border Insolvency and Recovery Proceedings
- 8 Public Procurement and Concessions
- Preliminary Material
- 8.1 The Interaction Between the Public Administration and the Market
- 8.2 The Requirement of a Public Call for Tender
- 8.3 Minimum Content of a Call for Tender and Tender Process
- 8.3.1 The Scope of Application of the Public Procurement Act
- 8.3.2 Central Topics of the Public Procurement Act
- 8.3.3 General Principles Applicable to Calls for Tender and Administrative Contracts
- 8.3.4 International Procurement Proceedings
- 8.3.5 Direct Contracting Without the Need for a Call for Tender
- 8.3.6 Simplified Public Procurement via Electronic Auctions
- 8.3.7 Distinct Contracting Regime
- 8.3.8 The Law on Public Companies
- 8.4 General Administrative Contract Law
- 8.5 Concession Contract
- 8.6 Case Study: Airport Concession Contracts
- 1 Economic and Legal Framework
- Further Material
- Appendix 2016 Guidelines for the Previous Consummation of Merger Transactions
- Bibliography
- Index
