A qualificadora “no melhor conhecimento” em contratos de compra e venda de participação societária

As operações de compra e venda de participação societária seguem no Brasil um modelo importado do direito estrangeiro. Dentre diversos institutos importados, existem as cláusulas de declarações e garantias e suas qualificadoras. O objetivo do presente trabalho é examinar a validade da qualificadora “no melhor conhecimento” no ordenamento jurídico brasileiro e sua eficácia dentro dos limites impostos por esse ordenamento. Busca-se, para tanto, analisar o conceito da qualificadora em seu sistema originário, a Common Law, e posteriormente trazer a discussão para o ambiente jurídico do ordenamento brasileiro, propiciando a conclusão que a validade da inserção da cláusula decorre do princípio da autonomia privada, mas está limitada pelos valores trazidos pelo princípio da boa-fé objetiva e seus deveres relacionados. Uma vez verificada a validade do instituto jurídico no ordenamento brasileiro, sua eficácia está relacionada à alocação de responsabilidade entre partes sobre o conhecimento e as consequências dessa alocação.

Alocação de riscos e equilíbrio econômico-financeiro em contratos de gestão: o caso da fundação OSESP

As parcerias entre o governo e instituições da sociedade civil têm se mostrado um instrumento fundamental para a consecução das políticas públicas. O “Programa Nacional de Publicização”, focalizando os serviços públicos não-exclusivos, trouxe maior possibilidade de flexibilização da gestão dessas atividades, chamando as organizações do terceiro setor a um papel de protagonismo na oferta de serviços públicos no Brasil. A nova interação entre esses agentes cria a necessidade de melhor entendimento de suas relações jurídicas e de realinhamento de expectativas e incentivos, bem como melhor definição da alocação de riscos entre os parceiros. Este trabalho analisa as parcerias com as Organizações Sociais na área da Cultura no Estado de São Paulo. Mais especificamente, o contrato de gestão da Fundação Osesp no período de 2005 a 2015. A partir desse caso, analisamos as oportunidades e dificuldades encontradas na contratualização dos resultados, os impactos na governança corporativa da instituição, as condições de alocação dos riscos, suas formas de mitigação e as necessidades de reequilíbrio econômico-financeiro.

Análise da eficiência de contratos de serviços de elevada especificidade terceirizados pela petrobras

The definition of the boundaries of the firms is subject that has occupied the organizational theorists long ago, being the seminal work of Coase (1937) indicated as the trigger for one theoretical evolution, with emphasis on governance structures, which led to a modern theory of incomplete contracts. The Transaction Cost Economics (TCE) and Agency Theory arise within this evolution, being widely used in studies related to the theme. Empirically, data envelopment analysis (DEA) has established itself as a suitable tool for analysis of efficiency. Although TCE argues that specific assets must be internalized, recent studies outside the mainstream of theory show that, often, firms may decide, for various reasons, hire them on the market. Researches on transaction costs face with the unavailability of information and methodological difficulties in measuring their critical variables. There`s still the need for further methodological deepening. The theoretical framework includes classic works of TCE and Agency Theory, but also more recent works, outside the mainstream of TCE, which warn about the existence of strategies in use of specific assets that aren`t necessarily aligned with the classical ideas of TCE. The Brazilian oil industry is the focus of this thesis, that aimed to evaluate the efficiency of contracts involving high specificity service outsourced by Petrobras. In order to this, we made the categorization of outsourced services in terms of specificity, as well the description of services with higher specificity. Then, we verified the existence of relationship between the specificity of services and a number of variables, being found divergent results than those that are preached by the mainstream of TCE. Then, we designed a DEA model to analyze the efficiency in the use of onshore drilling rigs, identified among the services of highest specificity. The next step was the application of the model to evaluate the performance of drilling rigs contracts. Finally, we verified the existence of relationship between the efficiency of contracts and a number of variables, being found, again, results not consistent with the theory mainstream. Regarding to analyze of efficiency of drilling rigs contracts, the model developed is compatible with what is found in academic productions in efficiency of drilling rigs. The results on efficiency show a wide range of scores, with efficiencies ranging from 31.79% to 100%, being low the sample efficiency average. There is consonance between the model results and the practices adopted by Petrobras. The results strengthen the DEA as an important tool in studies of efficiency with possibility to use for analysis other types of contracts. In terms of theoretical findings, the results reinforce the arguments that there are situations in which the strategies of the organizations, in terms of use of assets and services of high specificity, do not necessarily follow what is recommended by the mainstream of TCE

A gestão da informação sob a luz do Enterprise Content Management (ECM): um estudo de caso em uma universidade pública

This work involves the organization and content perspectives on Enterprise Content Management (ECM) framework. The case study at the Federal University of Rio Grande do Norte was based on ECM model to analyse the information management provided by the three main administrative systems: The Integrated Management of Academic Activities (SIGAA), Integrated System of Inheritance, and Contracts Administration (SIPAC) and the Integrated System for Administration and Human Resources (SIGRH). A case study protocol was designed to provide greater reliability to research process. Four propositions were examined in order to reach the specific objectives of identification and evaluation of ECM components from UFRN perspective. The preliminary phase provided the guidelines for the data collection. In total, 75 individuals were interviewed. Interviews with four managers directly involved on systems design were recorded (average duration of 90 minutes). The 70 remaining individuals were approached in random way in UFRN s units, including teachers, administrative-technical employees and students. The results showed the presence of many ECM elements in the management of UFRN administrative information. The technological component with higher presence was "management of web content / collaboration". But initiatives of other components (e.g. email and document management) were found and are in continuous improvement. The assessment made use of eQual 4.0 to examine the effectiveness of applications under three factors: usability, quality of information and offered service. In general, the quality offered by the systems was very good and walk side by side with the obtained benefits of ECM strategy adoption in the context of the whole institution

Proteja e proteje sua carreira: revista você S/A e o mercado de discursos administrativos

The present work aims at investigating the role of Você S/A magazine within the área of administrative discourses. The idea is to investigate the constituting variances in such market, presenting its working logics and its historical pathway that promoted its structure as we nowadays know. Furthermore, thought must be put into considering how the constituting agents of this market legitimize such practice. The understanding of this whole context will allow the explanation of the role of Você S/A magazine in this market and how the magazine is related to other area agents. The work is justified by casting light over a phenomena much neglected by the academy, which is the business press and the dissemination of social stock of knowledge developed from the new administrative discourses. The methodology used was the content analysis on published articles by the magazine, being preceded by the historical backtracking of the structuring of the investigated market. The research took into consideration the following results: the business press, in general, and the Você S/A in particular, presented themselves to be just one more tool for readers to increase their social stock of knowledge, as to be inserted into contemporary organizations. An enormous public arena in which the people interested in the diffusion of certain managing packages may spread such practices and earn economic capital with them

A Eficácia dos direitos fundamentais nos contratos civis e de consumo: uma teoria contratual baseada na colisão dos direitos ou bens constitucionalmente protegidos

The apparent virtuosity that if could wait of the globalization and the neoliberalism has given signals of deterioration in the contractual relations, especially in contracts of mass consumption, generating innumerable offensive situations to the basic rights and the goods constitutionally protected of the contractors. In the world of today, still that it does not reveal any desire, the individual practically is compelled to contract, for force of necessities and customs completely imposed, mainly in face of the essentiality of the services or agreed to goods. Ahead of as much and unexpected changes in the civil liames and of consumption, dictated for the globalization, it comes to surface the reflection if the private law e, more specifically, the civil law, meet prepared adequately to deal with these new parameters of the economy. The present dissertation has the intention to investigate if the globalization and the consequent neoliberalism, in this beginning of third millennium, will imply to revive of the principles and the basics paradigms of the contracts that consolidated and had kept, for more than two centuries, the liberal State. One notices that the study of this phenomenon it gains importance to the measure where if it aggravates the decline of the social State (Welfare State), with the embrittlement and the loss of the autonomy of the state authority, over all in countries of delayed modernity, as it is the case of Brazil, that presents deep deficiencies to give or to promote, with a minimum of quality and efficiency, essential considered public services to the collective and that if they find consecrated in the Federal Constitution, as basic rights or as goods constitutionally protecting, the example of the health, the education, the housing, the security, the providence, the insurance, the protection the maternity, the infancy and of aged and deficient. To the end, the incidence of constant basic rights of the man in the Constitution is concluded that, in the process of interpretation of the right contractual conflicts that have as object rights or goods constitutionally proteges, in the universe of the globalized perhaps economy and of the neoliberalismo, it consists in one of the few ways - unless the only one - that still they remain to over all deal with more adequately the contractual relations, exactly that if considers the presence of clauses generalities in the scope of the legislation infraconstitutional civil and of consumption, front the private detainers of social-economic power. To be able that it matters necessarily in disequilibrium between the parts, whose realignment depends on the effect and the graduation that if it intends to confer to the basic right in game in the private relation. The Constitution, when allowing the entailing of the basic rights in the privates relations, would be assuming contours of a statute basic of all the collective, giving protection to the man against the power, if public or independently private