A admissibilidade e a conveniência da exclusão do controlador em S.A.

O estudo refere-se à verificação da admissibilidade e da conveniência da exclusão facultativa de acionista controlador em sociedade anônima. O tema não é propriamente novo no Brasil. Intenciona-se, no entanto, construir a hipótese a partir de fundamento legal diferente. A Lei 6.404/76 (LSA) apenas destina a exclusão para casos de acionista remisso (artigo 107, II), permanecendo silente com relação ao inadimplemento de deveres de colaboração e lealdade (em conjunto, deveres de cooperação). Nesse contexto, a doutrina e a jurisprudência brasileiras tendem a admitir a hipótese de exclusão em tais casos por aplicação do artigo 1.030 do Código Civil, destinado a regular a matéria no âmbito das sociedades simples. Para tanto, aproximam a companhia fechada das sociedades de pessoas a fim de justificar, dada a alegada omissão da lei especial a esse respeito, o tratamento por analogia. A partir do estudo sistemático da LSA, que compreende, entre outros, o entendimento do princípio da circulação de ações e da extensão dos deveres de boa-fé entre os sócios, pretende-se admitir a hipótese com base na própria lógica acionária, em razão da eventual relevância do relacionamento societário para a consecução do fim social. Em tais companhias, o adimplemento dos deveres de cooperação torna-se tão imprescindível quanto o adimplemento do dever de conferimento para o alcance do escopo comum. Em decorrência desse raciocínio, a exclusão torna-se admissível na ocorrência de inadimplemento de qualquer dever social que inviabilize, real ou potencialmente, o preenchimento do fim social. A identificação de eventual affectio societatis entre os acionistas, portanto, passa a ser irrelevante. Admitir a hipótese no que se refere a acionista controlador se revela ainda importante instrumento de limitação do exercício ilegítimo do poder de controle e não se confunde com a sanção de perdas e danos prevista na LSA por abuso de poder de controle. Por fim, será analisada a conveniência da exclusão do controlador, em razão de sua relevância pessoal para a consecução da atividade, a participação societária por ele detida e da possibilidade de dissolver-se parcialmente a sociedade, com a saída do acionista minoritário descontente.

Electoral Systems and Ethnic Conciliation: A Structured, Focused Analysis of Vote-Pooling in Northern Ireland Elections 1998-2011

This research project examines the role of electoral system rules in affecting the extent of conciliatory behavior and cross-ethnic coalition making in Northern Ireland. It focuses on the role of the Single Transferable Vote (STV) electoral system in shaping party and voter incentives in a post-conflict divided society. The research uses a structured, focused comparison of the four electoral cycles since the Belfast Agreement of 1998. This enables a systematic examination of each electoral cycle using a common set of criteria focused on conciliation and cross-ethnic coalition making. Whilst preference voting is assumed to benefit moderate candidates, in Northern Ireland centrist and multi-ethnic parties outside of the dominant ethnic communities have received little electoral success. In Northern Ireland the primary effect of STV has not been to encourage inter-communal voting but to facilitate intra-community and intra-party moderation. STV has encouraged the moderation of the historically extreme political parties in each of the ethnic bloc. Patterns across electoral cycles suggest that party elites from the Democratic Unionist Party (DUP) and Sinn Fein have moderated their policy positions due to the electoral system rules. Therefore they have pursued lower-preference votes from within their ethnic bloc but in doing so have marginalized parties of a multi-ethnic or non-ethnic orientation.

Recuperação judicial de empresas: atuação do juiz

Esta dissertação tem como objeto a análise da atuação judicial no âmbito dos processos de recuperação judicial de empresas, regulados pela Lei nº 11.101 de 9 de fevereiro de 2002 (\"LRE\"). No primeiro capítulo, são introduzidas as limitações do trabalho e as principais questões a serem respondidas ao longo do texto. No segundo capítulo, são expostos os panoramas histórico e jurídico da LRE, para que se extraiam os verdadeiros objetivos tutelados pela lei e o diálogo destes objetivos com a atuação do Poder Judiciário. No terceiro capítulo, são propostos três níveis de intervenção judicial no bojo do processo de recuperação, sendo eles: (a) o controle de legalidade estrita, por meio do qual o juiz verificará a observância aos requisitos e vedações impostos pela LRE ao conteúdo do plano de recuperação e à sua votação; (b) o controle de legalidade material ou controle de juridicidade, por meio do qual o juiz avaliará se o conteúdo do plano e sua votação atendem aos princípios gerais orientadores do ordenamento brasileiro; e (c) o juízo de viabilidade, por meio do qual o juiz, usando de critérios objetivos sugeridos pela doutrina, avaliaria o mérito do plano de recuperação judicial para averiguar se, além de atenderem aos critérios de legalidade, as disposições do plano de recuperação atingem os objetivos traçados pela LRE, no sentido de tutela da empresa viável e tutela institucional do crédito. No quarto capítulo, são retomadas as conclusões alcançadas ao final de cada um dos subcapítulos.

The Future Direction of Delaware Law (Including a Brief Exegesis on Fee Shifting Bylaws)

Delaware sets the governance standards for most public companies. The ability to attract corporations could not be explained solely by the existence of a favorable statutory regime. Delaware was not invariably the first or the only state to implement management friendly provisions. Given the interpretive gaps in the statute and the critical importance of the common law in the governance process, courts played an outsized role in setting legal standards. The management friendly nature of the Delaware courts contributed significantly to the state’s attraction to public corporations. A current example of a management friendly trend in the case law had seen the recent decisions setting out the board’s authority to adopt bylaws under Section 109 of the Delaware General Corporation Law (DGCL), particularly those involving the shifting of fees in litigation against the corporation or its directors. The DGCL allows bylaws that address “the business of the corporation, the conduct of its affairs, and its rights or powers or the rights or powers of its stockholders, directors, officers or employees.” The broad parameters are, however, subject to limits. Bylaws cannot be inconsistent with the certificate of incorporation or “the law.” Law includes the common law. The Delaware courts have used the limitations imposed by “the law” to severely restrict the reach of shareholder inspired bylaws. The courts have not used the same principles to impose similar restraints on bylaws adopted by the board of directors. This can be seen with respect to bylaws that restrict or even eliminate the right of shareholders to bring actions against management and the corporation. In ATP Tour, Inc. v. Deutscher Tennis Bund the court approved a fee shifting bylaw that had littl relationship to the internal affairs of the corporation. The decision upheld the bylaw as facially valid.The decision ignored a number of obvious legal infirmities. Among other things, the decision did not adequately address the requirement in Section 109(b) that bylaws be consistent with “the law.” The decision obliquely acknowledged that the provisions would “by their nature, deter litigation” but otherwise made no effort to assess the impact of this deterrence on shareholders causes of action. The provision in fact had the practical effect of restricting, if not eliminating, litigation rights granted by the DGCL and the common law. Perhaps most significantly, however, the bylaws significantly limited common law rights of shareholders to bring actions against the corporation and the board. Given the high dismissal rates for these actions, fee shifting bylaws imposed a meaningful risk of liability on plaintiffs. Moreover, because judgments in derivative suits were paid to the corporation, shareholders serving as plaintiffs confronted the risk of liability without any offsetting direct benefit. By preventing suits in this area, the bylaw effectively insulated the behavior of boards from legal challenge. The ATP decision was poorly reasoned and overstepped acceptable boundaries. The management friendly decision threatened the preeminent role of Delaware in the development of corporate law. The decision raised the specter of federal intervention and the potential for meaningful competition from the states. Because the opinion examined the bylaw in the context of non-stock companies, the reasoning may remain applicable only to those entities and never make the leap to for-profit stock corporations. Nonetheless, the analysis reflects a management friendly approach that does not adequately take into account the impact of the provision on the rights of shareholders.

Comment Letter on Rule 14a-8(I)(10), Securities & Exchange Commission, June 18, 2015

This letter focuses on SEC interpretations of Rule 14a-8(i)(10). The provision allows issuers to exclude shareholder proposals that have been “substantially implemented.” This has traditionally been used to allow for the exclusion of proposals rendered “moot” by the company’s actions. Companies, however, need not implement the shareholder proposal “exactly.” As a result, the staff is often asked to determine whether changes made by the company are substantial. The comment letter discusses positions taken by the staff where the company adopts a proposal asking that shareholders with a specified percentage of shares have the right to call a special meeting but limits eligible shares to those held for a specified period of time.

Setting Congress Up to Fail

In Shelby County v. Holder the Supreme Court invalidated key provisions of the Voting Rights Act of 1965 based on Congress’s failure to justify the formula used to determine which jurisdictions would be subject to the Act’s pre-clearance requirement of submitting all changes to voting procedures to the Justice Department for prior approval. This short essay explores one problematic feature of the Court’s analysis: its refusal to consider the legislative record as adequate because it was created to justify the coverage formula after the fact, rather than to facilitate deliberation on the coverage formula before a decision had been made. This reasoning essentially imports from administrative law a rule called the Chenery principle, and as this essay explains, it does so without justification. The differences between administrative and legislative decision making processes compel different treatment by the courts, and treating legislative records like administrative ones, in essence, asks of Congress something it is institutionally ill-equipped to perform. It sets Congress up to fail.

Comment on Rule 14a-8(i)(9), Securities and Exchange Commission, June 30, 2015

The Securities and Exchange Commission has been analyzing its interpretation under Subsection (i)(9) of Rule 14a-8. This provision allows for the exclusion of shareholder proposals that conflict with those submitted by management. The staff has been examining its interpretation since instructed to do so by the chair of the SEC following a no action appeal in a case involving Whole Foods. A number of letters and memos submitted in connection with the review have analyzed the issue. At least one asserted that any change in interpretation required the Commission to go through the process of notice and comment. This letter asserts that notice and comment is not required, relying extensively on Perez v. Mortgage Bankers Association.

Glue Technology: A Blueprint for Cultural Integration

Despite the gargantuan stakes that mergers and acquisitions represent, global companies' success rate at integrating organizations has been dismal, incurring billions of dollars in lost shareholder value. International human resources' handling of the cultural integration process is the principal differentiator between success and failure. This Capstone project proposes a process for developing cultural integration mechanisms, known as glue technology, and provides a step-by-step process map for execution through four phases. During planning, the need for glue technology is defined. Through analysis, rewards systems are assessed, and a strategy is chosen. In implementation planning, unanimous executive commitment must be secured. Last is measurement based on the integration plan's objectives. Enabling mechanisms such as removing negative influencers, speed, and communication are discussed.

A knowledge-based textual entailment approach applied to the QA answer validation at CLEF 2006

The Answer Validation Exercise (AVE) is a pilot track within the Cross-Language Evaluation Forum (CLEF) 2006. The AVE competition provides an evaluation frame- work for answer validations in Question Answering (QA). In our participation in AVE, we propose a system that has been initially used for other task as Recognising Textual Entailment (RTE). The aim of our participation is to evaluate the improvement our system brings to QA. Moreover, due to the fact that these two task (AVE and RTE) have the same main idea, which is to find semantic implications between two fragments of text, our system has been able to be directly applied to the AVE competition. Our system is based on the representation of the texts by means of logic forms and the computation of semantic comparison between them. This comparison is carried out using two different approaches. The first one managed by a deeper study of the Word- Net relations, and the second uses the measure defined by Lin in order to compute the semantic similarity between the logic form predicates. Moreover, we have also designed a voting strategy between our system and the MLEnt system, also presented by the University of Alicante, with the aim of obtaining a joint execution of the two systems developed at the University of Alicante. Although the results obtained have not been very high, we consider that they are quite promising and this supports the fact that there is still a lot of work on researching in any kind of textual entailment.

ElectionMap: una representación geolocalizada de intenciones de voto hacia partidos políticos sobre la base de comentarios de usuarios de Twitter

ElectionMap es una aplicación web que realiza un seguimiento a los comentarios publicados en Twitter en relación a entidades que refieren a partidos políticos. Las opiniones de los usuarios sobre estas entidades son clasificadas según su valoración y posteriormente representadas en un mapa geográfico para conocer la aceptación social sobre agrupaciones políticas en las distintas regiones de la geografía española.

A review on political analysis and social media

En los países democráticos, conocer la intención de voto de los ciudadanos y las valoraciones de los principales partidos y líderes políticos es de gran interés tanto para los propios partidos como para los medios de comunicación y el público en general. Para ello se han utilizado tradicionalmente costosas encuestas personales. El auge de las redes sociales, principalmente Twitter, permite pensar en ellas como una alternativa barata a las encuestas. En este trabajo, revisamos la bibliografía científica más relevante en este ámbito, poniendo especial énfasis en el caso español.

Elections to the European Parliament and the trouble with vox populi. EPIN Commentary No. 12, 22 August 2013

Declining support for the European Union in many member states is causing some disquiet about the possibility of an even lower voter turnout in the upcoming European Parliament (EP) elections to be held next May. This discontent might well be exploited by populist anti-European parties and boost protest-vote participation, cautions Sonia Piedrafita in this EPIN Commentary, and this would pose a serious risk for EU decision-making and undermine the sense of common identity and any plans for further integration. This Commentary, which looks at the elections from an EU perspective, is the first in a series of Commentaries by EPIN (European Policy Institutes Network) that will examine the outlook for the European Parliament elections in various member states.

Déjà-vu (again): The Lisbon Treaty Referendum in Ireland. IHS Political Science Series No. 133, February 2013

There has been an increasing use of direct democracy in the form of referendums on aspects of European integration. Two such referendums have been held in Ireland in 2008 and 2009 with the outcome changing from a No to a Yes vote. This paper addresses the question of what explains the change in outcome in two referendums on essentially the same document. It will do so by looking at the role of the campaign in providing information and hence reducing uncertainty, the importance of issue frames and the impact of domestic considerations on vote choice. It is suggested that there has not been a change in underlying attitudes but a change in how the Irish electorate weighed the same factors differently at both referendums. In addition, a change in economic conditions at the time of the second referendum also had an effect on how voters decided the second time around.

Die EU-Volksabstimmungen in Österreich, Finnland, Schweden und Norwegen. Verlauf, Ergebnisse Motive und Folgen = The EU referendums in Austria, Finland, Sweden and Norway. Results, motives and consequences. Institute for Advanced Studies Political Science Series No. 23, 1995

This paper analysis the 1994 EU referenda in Austria, Finland, Sweden and Norway in a comparative perspective. It shows that the results were, to some extent at least, related to how pronounced the respective elite consensus was on the necessity or desirability of EU membership. It also shows that in all cases the main motivation of the Yes voters was economic. The paper goes on to analyse the regional and social variations in voting patterns. In the concluding chapter some of the medium- and longterm effects of the referenda debates and results on Austrian, Finnish and Swedish government policy within the EU are outlined.

British Balance of Competence Reviews, Part I: ‘Competences about right, so far’. EPIN Working Paper No. 35, October 2013

The first in a series for a CEPS-EPIN project entitled “The British Question and the Search for a Fresh European Narrative” this paper is pegged on an ambitious ongoing exercise by the British government to review all the competences of the European Union. The intention is that this should provide a basis for informed debate before the referendum on the UK remaining in the EU or not, which is scheduled for 2017. This paper summarises the first six reviews, each of which runs to around 80 pages, covering foreign policy, development policy, taxation, the single market, food safety, and public health. The present authors then add their own assessments of these materials. While understandably giving due place to British interests, they are of general European relevance. The substantive conclusions of this first set of reviews are that the competences of the EU are judged by respondents to be ‘about right’ on the whole, which came as a surprise to eurosceptic MPs and the tabloid media. Our own view is that the reviews are objective and impressively researched, and these populist complaints are illustrating the huge gap between the views of informed stakeholders and general public opinion, and therefore also the hazard of subjecting the ‘in or out’ choice for decision by referendum. If the referendum is to endorse the UK’s continuing membership there will have to emerge some fresh popular narratives about the EU. The paper therefore concludes with some thoughts along these lines, both for the UK and the EU as a whole.