Intervenção judicial nas sociedades limitadas em face da liberdade de iniciativa

The judicial intervention in limited liability company goes through several issues of legislative and hermeneutics origin, based considerably on the small importance given to freedom of economic initiative by the participants in the process of formation and application of the law. In addition, Brazilian law, due to incompleteness, inconsistency or lack of valid grounds, put the judge in a procedural delicate situation. Being forced to judge, the judiciary faces severe uncomfortable interpretive situations, of which derive solutions of dubious constitutionality and affecting, significantly, the dynamics of business activity. In this context, and considering the limited liability company as an expression of free enterprise, corresponding to a lawful association of people in order to undertake economically, in exercise of his freedom of contracting and professional action, intended to be offered safe parameters of constitutionality for judicial intervention in limited liability company in the hypothesis of (i) transfer of corporate shares, (ii) attachment of corporate shares, (iii) dismissal of directors, (iv) appointment of judicial stakeholders, (v) exclusion of shareholders and (vi ) trespass. The hypothetical-deductive approach was adopted, building hypotheses to overcome the gaps and unconstitutionality of the law and subjecting them to tests, reviews, and comparisons with hypothetical facts and case law in order to determine the constitutional validity of the proposed solutions. The procedure aimed to reconcile the historical, comparative, dialectical and scientific methods. The roots of temporal institutes were researched as well as current solutions provided by national and compared law. From problematizations point, addressed by the constitutional interpretation of the law and jurisprudence, responses that bring out the unconstitutionality of certain conceptions were headed

Análise e reflexões sobre a criação da empresa individual de responsabilidade limitada no cenário jurídico empresarial brasileiro

Pós-graduação em Direito - FCHS

Dinâmicas empresariais: um olhar antropológico sobre o processo seletivo para trainee Jovens Talentos Natura 2014

The hypothesis that guides this work is: in the scenario posed by the first decade of the XXI century, the private companies act to conciliate their organizational principles, mission (how they want to arrive), vision (where they want to arrive) and values to the principles of its individual members, setting a certain style of corporate culture. That culture would pass by all hierarchical levels of enterprises, promoting the creation of subjective bonds between themselves and their employees in order to create or maintain, through shared values, social conventions that would ensure the certain style of symbolic domination inside and outside the physical and relational enterprises' spaces. I have as general objective, analyze, through a socio-anthropological approach, the dimension of the culture of private companies, how this guides the market practice and, in this sense, I seek to problematize the relationship between the actions of the analyzed companies (Nestle and, more specifically, Natura) and the representations and motivations of their employees. Furthermore, this study aims, specifically, to understand how the vision, the raison of being and the beliefs of Natura configure themselves as important strategic directives for the consolidation of an emotional bond between employees and those who aspire to be part of this organization. For this, I analyzed the Report Natura 2012, the conversations with some company employees and my participation in the selection process for trainee Young Talents Natura 2014

RP96-11 The Farm Corporation: What It Is, How It Works, How It Is Taxed

A corporation is an artificial person that is created and operated according to state corporation statutes. It is a separate taxpayer subject to specific and detailed federal, state, and local tax laws. The advice and service of your lawyer are indispensable in organizing and operating a farm corporation. There are three basic forms of farm business organization, the sole proprietorship, the partnership, and the corporation. Variations of these forms have resulted in the limited partnership and the "tax option" corporation. These three basic forms are discussed in this research publication.

Dinâmicas empresariais: um olhar antropológico sobre o processo seletivo para trainee Jovens Talentos Natura 2014

The hypothesis that guides this work is: in the scenario posed by the first decade of the XXI century, the private companies act to conciliate their organizational principles, mission (how they want to arrive), vision (where they want to arrive) and values to the principles of its individual members, setting a certain style of corporate culture. That culture would pass by all hierarchical levels of enterprises, promoting the creation of subjective bonds between themselves and their employees in order to create or maintain, through shared values, social conventions that would ensure the certain style of symbolic domination inside and outside the physical and relational enterprises' spaces. I have as general objective, analyze, through a socio-anthropological approach, the dimension of the culture of private companies, how this guides the market practice and, in this sense, I seek to problematize the relationship between the actions of the analyzed companies (Nestle and, more specifically, Natura) and the representations and motivations of their employees. Furthermore, this study aims, specifically, to understand how the vision, the raison of being and the beliefs of Natura configure themselves as important strategic directives for the consolidation of an emotional bond between employees and those who aspire to be part of this organization. For this, I analyzed the Report Natura 2012, the conversations with some company employees and my participation in the selection process for trainee Young Talents Natura 2014

Securitization and Special Purpose Vehicles in an International Setting: a Systemic View

The present work tries to display a comprehensive and comparative study of the different legal and regulatory problems involved in international securitization transactions. First, an introduction to securitization is provided, with the basic elements of the transaction, followed by the different varieties of it, including dynamic securitization and synthetic securitization structures. Together with this introduction to the intricacies of the structure, a insight into the influence of securitization in the financial and economic crisis of 2007-2009 is provided too; as well as an overview of the process of regulatory competition and cooperation that constitutes the framework for the international aspects of securitization. The next Chapter focuses on the aspects that constitute the foundations of structured finance: the inception of the vehicle, and the transfer of risks associated to the securitized assets, with particular emphasis on the validity of those elements, and how a securitization transaction could be threatened at its root. In this sense, special importance is given to the validity of the trust as an instrument of finance, to the assignment of future receivables or receivables in block, and to the importance of formalities for the validity of corporations, trusts, assignments, etc., and the interaction of such formalities contained in general corporate, trust and assignment law with those contemplated under specific securitization regulations. Then, the next Chapter (III) focuses on creditor protection aspects. As such, we provide some insights on the debate on the capital structure of the firm, and its inadequacy to assess the financial soundness problems inherent to securitization. Then, we proceed to analyze the importance of rules on creditor protection in the context of securitization. The corollary is in the rules in case of insolvency. In this sense, we divide the cases where a party involved in the transaction goes bankrupt, from those where the transaction itself collapses. Finally, we focus on the scenario where a substance over form analysis may compromise some of the elements of the structure (notably the limited liability of the sponsor, and/or the transfer of assets) by means of veil piercing, substantive consolidation, or recharacterization theories. Once these elements have been covered, the next Chapters focus on the regulatory aspects involved in the transaction. Chapter IV is more referred to “market” regulations, i.e. those concerned with information disclosure and other rules (appointment of the indenture trustee, and elaboration of a rating by a rating agency) concerning the offering of asset-backed securities to the public. Chapter V, on the other hand, focuses on “prudential” regulation of the entity entrusted with securitizing assets (the so-called Special Purpose vehicle), and other entities involved in the process. Regarding the SPV, a reference is made to licensing requirements, restriction of activities and governance structures to prevent abuses. Regarding the sponsor of the transaction, a focus is made on provisions on sound originating practices, and the servicing function. Finally, we study accounting and banking regulations, including the Basel I and Basel II Frameworks, which determine the consolidation of the SPV, and the de-recognition of the securitized asset from the originating company’s balance-sheet, as well as the posterior treatment of those assets, in particular by banks. Chapters VI-IX are concerned with liability matters. Chapter VI is an introduction to the different sources of liability. Chapter VII focuses on the liability by the SPV and its management for the information supplied to investors, the management of the asset pool, and the breach of loyalty (or fiduciary) duties. Chapter VIII rather refers to the liability of the originator as a result of such information and statements, but also as a result of inadequate and reckless originating or servicing practices. Chapter IX finally focuses on third parties entrusted with the soundness of the transaction towards the market, the so-called gatekeepers. In this respect, we make special emphasis on the liability of indenture trustees, underwriters and rating agencies. Chapters X and XI focus on the international aspects of securitization. Chapter X contains a conflicts of laws analysis of the different aspects of structured finance. In this respect, a study is made of the laws applicable to the vehicle, to the transfer of risks (either by assignment or by means of derivatives contracts), to liability issues; and a study is also made of the competent jurisdiction (and applicable law) in bankruptcy cases; as well as in cases where a substance-over-form is performed. Then, special attention is also devoted to the role of financial and securities regulations; as well as to their territorial limits, and extraterritoriality problems involved. Chapter XI supplements the prior Chapter, for it analyzes the limits to the States’ exercise of regulatory power by the personal and “market” freedoms included in the US Constitution or the EU Treaties. A reference is also made to the (still insufficient) rules from the WTO Framework, and their significance to the States’ recognition and regulation of securitization transactions.

I diritti particolari dei soci nelle S.r.l.

Il tema oggetto della presente tesi di dottorato trae spunto dall'analisi dell'art. 2468 c.c. nel quale può dirsi contenuto il nucleo fondamentale della disciplina della partecipazione sociale. In primo luogo vi è un'analisi comparata dell'istituto in esame con quelli previsti negli altri paesi europei. Dopo una breve analisi di diritto comparato ci si è concentrati sulla legislazione italiana ed, in particolare, l'elaborato cerca di dare una risposta ai seguenti interrogativi: a) quali sono i “particolari diritti” ex art. 2468 c.c.? b) si può parlare di “categorie speciali di partecipazioni”? Con riferimento al primo interrogativo va considerato che il modello legale prevede che i diritti particolari attribuibili ai soci riguardano l’amministrazione della società o la distribuzione degli utili. Tale disciplina sussiste quando l’atto costitutivo attribuisce i particolari diritti senza disporre nulla sulla loro trasferibilità, modificabilità ed inerenza alla partecipazione sociale piuttosto che alla persona del socio. Ci si è chiesti quali siano i confini delle due categorie espressamente previste dall’art. 2468, 3 c.c. e se tale previsione sia tassativa piuttosto che esemplificativa, aprendosi quindi la strada alla libera determinabilità dei diritti sociali, alla stregua di quanto sancisce l’art. 2348, 2 c.c., in merito alle azioni “speciali”. Si giunge così alla conclusione che la previsione sia esemplificativa e che anche nelle s.r.l. le parti sono libere di attribuire ai soci diritti sociali diversi da quelli derivanti dal modello legale, nei limiti derivanti da specifiche norme imperative. Nel secondo capitolo sono stati approfonditi i principi dettati dall’art. 2468 c.c., la natura di tali "particolari diritti" ed i loro profili di qualificazione nonché le loro esplicazioni contenutistiche Nel terzo capitolo si è analizzato cosa accade ai "particolari diritti" in caso di vicende modificative. Nel quarto capitolo poi è stato affrontata la controversa questione relativa alla possibilità di creare delle “categorie di quote”.

Bittorent Loses Again: A Recent Lithuanian BitTorrent Case and What It Means for the Construction of the E-commerce Directive

This article first discusses a recent Lithuanian BitTorrent case, Linkomanija, with its shortcomings and perspectives. It then compares the outcomes of the Lithuanian case with recent court practice in Scandinavian countries (the Swedish Pirate Bay and Finnish Finreactor cases). Finally, it poses some questions as to whether BitTorrent sites should be qualified as hosting services under Article 14 of the EU E-commerce Directive (2000/31/EC) and whether the application of the limited liability standard, as developed by the Court of Justice of the European Union, would be reasonable for BitTorrent file-sharing services in general.

Explaining the Persistence of State-ownership in China

In the recent decade China witnessed an upsurge of privatization of small and medium state-owned enterprises (SOEs). In contrast to the consequent sharp reduction in the number of firms, however, the estimated share of broadly-defined SOEs that includes limited liabilities companies controlled by the State has shown virtually no sign of decline. We explain the backgrounds of this seemingly paradoxical persistence of state-ownership by looking into two distinctive types of large SOEs: traditional SOEs that remain dominant in oligopolistic industries and manager-controlled SOEs surviving in competitive industries. The two types exemplify several factors constraining further progress of SOE reform such as, financing the costs of restructuring, redefining the role of the State as the single dominant shareholder, and balancing the interests of the State and managers as entrepreneurs. Sorting these issues out will take time, which means that instabilities associated with state corporate ownership will remain in place in the foreseeable future in China.

Assessing the effectiveness of business support services in England:evidence from a theory based evaluation

In England, publicly supported advice to small firms is organized primarily through the Business Link (BL) network. Using the programme theory underlying this business support, we develop four propositions and test these empirically using data from a new survey of over 3000 English SMEs. We find strong support for the value to BL operators of a high profile to boost take-up. We find support for the BL’s market segmentation that targets intensive assistance to younger firms and those with limited liability. Allowing for sample selection, we find no significant effects on growth from ‘other’ assistance but find a significant employment boost from intensive assistance. This partially supports the programme theory assertion that BL improves business growth and strongly supports the proposition that there are differential outcomes from intensive and other assistance. This suggests an improvement in the BL network, compared with earlier studies, notably Roper et al. (2001), Roper and Hart (2005).

When moving information online diminishes change:advisory services to SMEs

Improving the performance of private sector small and medium sized enterprises (SMEs) in a cost effective manner is a major concern for government. Governments have saved costs by moving information online rather than through more expensive face-to-face exchanges between advisers and clients. Building on previous work that distinguished between types of advice, this article evaluates whether these changes to delivery mechanisms affect the type of advice received. Using a multinomial logit model of 1334 cases of business advice to small firms collected in England, the study found that advice to improve capabilities was taken by smaller firms who were less likely to have limited liability or undertake business planning. SMEs sought word-of-mouth referrals before taking internal, capability-enhancing advice. This is also the case when that advice was part of a wider package of assistance involving both internal and external aspects. Only when firms took advice that used extant capabilities did they rely on the Internet. Therefore, when the Internet is privileged over face-to-face advice the changes made by each recipient of advice are likely to diminish causing less impact from advice within the economy. It implies that fewer firms will adopt the sorts of management practices that would improve their productivity. © 2014 Taylor & Francis.

Anatomy and lessons of the global financial crisis. Is US consumption financed by Chinese savings?

Savings and investments in the American money market by emerging countries, primarily China, financed the excessive consumption of the United States in the early 2000s, which indirectly led to a global financial crisis. The crisis started from the real estate mortgage market. Such balance disrupting processes began on the American financial market which contradicted all previously known equilibrium theories of every school of economics. Economics has yet to come up with models or empirical theories for this new disequilibrium. This is why the outbreak of the crisis could not be prevented or at least predicted. The question is, to what extent can existing market theories, calculation methods and the latest financial products be held responsible for the new situation. This paper studies the influence of the efficient market and modern portfolio theory, as well as Li’s copula function on the American investment market. Naturally, the issues of moral risks and greed, credit ratings and shareholder control, limited liability and market regulations are aspects, which cannot be ignored. In summary, the author outlines the potential alternative measures that could be applied to prevent a new crisis, defines the new directions of economic research and draws the conclusion for the Hungarian economic policy.

A Tale of Unintended Consequence : corporate membership in early UK company law

Peer reviewed

A importância das redes de relacionamento para se formar uma parceria : um estudo de caso na ALESAT

This paper consists in a study case at the Alesat company, which aims at analyzing how the networks from the former companies Ale and Sat influence the formation of partnerships. The study was based on literature by Burt (1992), Granovetter (1973), Uzzi (1997), Contractor and Lorange (1988), Gulati (1998), Child and Faulkner (1998), and others, to verify how important the social relations were between the companies to the formation of a strategic alliance. The research method we adopted analyzed the first partnership between Ale and Sat and the last one that ended up with the merger of the companies resulting in a new company, Alesat. Semi-structured interviews were conducted in 2008 with the council board of the company. Secondary data were also collected from specific web sites from the area, such as ANP, Sindicom and Fecombustíveis, as well as from important newspapers in the market. The primary data were analyzed through the content analysis technique from Triviños (1987). The secondary data were analyzed through the documental analysis technique from Richardson (1985). This way, through the data collected, it can be concluded that the social ties between the companies were important in the partnership, and among the reasons that made the companies get together, the key one was the fact that the union would make possible to the companies act in regions in which they didn t have too much market share, making them a bigger player nationally wise

A importância das redes de relacionamento para se formar uma parceria : um estudo de caso na ALESAT

This paper consists in a study case at the Alesat company, which aims at analyzing how the networks from the former companies Ale and Sat influence the formation of partnerships. The study was based on literature by Burt (1992), Granovetter (1973), Uzzi (1997), Contractor and Lorange (1988), Gulati (1998), Child and Faulkner (1998), and others, to verify how important the social relations were between the companies to the formation of a strategic alliance. The research method we adopted analyzed the first partnership between Ale and Sat and the last one that ended up with the merger of the companies resulting in a new company, Alesat. Semi-structured interviews were conducted in 2008 with the council board of the company. Secondary data were also collected from specific web sites from the area, such as ANP, Sindicom and Fecombustíveis, as well as from important newspapers in the market. The primary data were analyzed through the content analysis technique from Triviños (1987). The secondary data were analyzed through the documental analysis technique from Richardson (1985). This way, through the data collected, it can be concluded that the social ties between the companies were important in the partnership, and among the reasons that made the companies get together, the key one was the fact that the union would make possible to the companies act in regions in which they didn t have too much market share, making them a bigger player nationally wise