A responsabilidade civil dos administradores de companhias abertas: artigo 159, § 6°, LSA e a Business Judgment Rule

O estudo da responsabilidade civil dos administradores de companhias abertas na doutrina nacional trata usualmente dos deveres fiduciários, do ato regular de gestão e da teoria ultra vires, da culpa ou dolo do administrador, das ações ut universi e ut singuli e da solidariedade entre a responsabilidade do administrador e a da companhia. Poucos abordam as causas extintivas dessa responsabilidade, e raro são os que tratam da hipótese de exclusão de responsabilidade do artigo 159, § 6º, da Lei nº 6.404/76. Como a disciplina dos deveres fiduciários prevista na lei societária brasileira tem forte influência do Direito norte-americano, buscou-se na legislação, doutrina e jurisprudência daquele país os fundamentos necessários à melhor interpretação e aplicação da regra de exclusão e, em especial, na business judgment rule, doutrina que protege os administradores contra responsabilização por prejuízos à companhia decorrentes de decisões por eles adotadas, proteção esta também conferida pela hipótese do artigo 159, § 6º, da Lei nº 6.404/76, ao administrador leal e de boa-fé.

Does the existing Corporate Governance structure and strict Legal Framework, affect the strategic decisionmaking of CEOs?

This thesis is a case study on Corporate Governance and Business Ethics, using the Portuguese Corporate Law as a general setting. The thesis was conducted in Portugal with illustrations on past cases under the Business Judgment Rule of the State of Delaware, U.SA along with illustrations on current cases in Portugal under the Portuguese Judicial setting, along with a comparative analysis between both. A debate is being considered among scholars and executives; a debate on best practices within corporate governance and corporate law, associated with recent discoveries of unlawful investments that lead to the bankruptcy of leading institutions and an aggravation of the crisis in Portugal. The study aimed at learning possible reasons and causes for the current situation of the country’s corporations along with attempts to discover the best way to move forward. From the interviews and analysis conducted, this paper concluded that the corporate governance structure and legal frameworks in Portugal were not the sole influencers behind the actions and decisions of Corporate Executives, nor were they the main triggers for the recent corporate mishaps. But it is rather a combination of different factors that played a significant role, such as cultural and ethical aspects, individual personalities, and others all of which created gray areas beyond the legal structure, which in turn accelerated and aggravated the corporate governance crisis in the country.

Les difficultés de l'arrangement statutaire de la L.c.Q. et l'utilisation croissante de celui de la L.c.s.a.

Le présent mémoire analyse les dispositions sur l'arrangement ou compromis avec actionnaires prévues aux articles 192 de la Loi canadienne sur les sociétés par actions et 49 de la Loi sur les compagnies du Québec. Dans un premier temps, l'étude de la genèse des dispositions sur l'arrangement dans les lois canadiennes fait ressortir que ces dispositions ont une origine commune et qu'elles partagent une même philosophie, caractérisée par une dualité entre la permissivité des transactions et la protection des épargnants. L'étude des fondements juridiques des mécanismes prévus dans la loi fédérale et provinciale permet ensuite de réaliser que, alors qu'à l'origine, la disposition québécoise était en quelque sorte le calque de la disposition fédérale, cette dernière a été modifiée postérieurement à la réforme de la loi fédérale, de sorte que plusieurs différences distinguent aujourd'hui ces deux lois au chapitre de l'arrangement. Dans un contexte où des démarches ont été entamées afin de réformer la loi provinciale, la question à laquelle ce mémoire tente de répondre peut se poser en ces termes: La « nouvelle disposition» d'arrangement adoptée par le législateur fédéral rencontre-t-elle mieux les objectifs de permissivité des transactions et de protection des épargnants que la disposition québécoise qui, pour sa part, est demeurée pratiquement inchangée depuis son adoption? L'étude parallèle de ces dispositions permet de constater que la «nouvelle disposition» d'arrangement de la L.c.s.a. semble davantage rencontrer ces objectifs.

Moral judgment competence of medical students: a transcultural study

The authors conducted a cross-sectional short-term study using Lind's Moral Judgment Test (MJT) to compare moral judgment competence (C-score) among students from a medical school in the Northeast region of Brazil and a medical school in the Northern region of Portugal. This study compares the C-scores of groups in the first and eighth semesters of study within each medical school and groups from corresponding semesters between the two medical schools. This study also evaluates the influence of such factors as age and gender on moral competence. A regression of moral judgment competence among the students in their eighth semester versus the students in the first semester of Brazilian medical school (p < 0.001) and a stagnation of moral competence among students in their eighth semester versus the first semester students in the Portuguese medical school (p = 0.06) were observed. For both the first semester and eighth semester groups, the students in the Portuguese medical school had higher C-scores than the students in the Brazilian medical school. In the analysis of the students' performances in terms of MJT dilemmas, the phenomenon of moral segmentation was observed in all of the groups, and the students performed better on the worker's dilemma than on the doctor's dilemma. Among students in the same semester of study, older students had lower C-scores. There was generally no significant difference between men's and women's C-scores. © 2013 Springer Science+Business Media Dordrecht.

A reference business process for ecological niche modelling

Ecological niche modelling combines species occurrence points with environmental raster layers in order to obtain models for describing the probabilistic distribution of species. The process to generate an ecological niche model is complex. It requires dealing with a large amount of data, use of different software packages for data conversion, for model generation and for different types of processing and analyses, among other functionalities. A software platform that integrates all requirements under a single and seamless interface would be very helpful for users. Furthermore, since biodiversity modelling is constantly evolving, new requirements are constantly being added in terms of functions, algorithms and data formats. This evolution must be accompanied by any software intended to be used in this area. In this scenario, a Service-Oriented Architecture (SOA) is an appropriate choice for designing such systems. According to SOA best practices and methodologies, the design of a reference business process must be performed prior to the architecture definition. The purpose is to understand the complexities of the process (business process in this context refers to the ecological niche modelling problem) and to design an architecture able to offer a comprehensive solution, called a reference architecture, that can be further detailed when implementing specific systems. This paper presents a reference business process for ecological niche modelling, as part of a major work focused on the definition of a reference architecture based on SOA concepts that will be used to evolve the openModeller software package for species modelling. The basic steps that are performed while developing a model are described, highlighting important aspects, based on the knowledge of modelling experts. In order to illustrate the steps defined for the process, an experiment was developed, modelling the distribution of Ouratea spectabilis (Mart.) Engl. (Ochnaceae) using openModeller. As a consequence of the knowledge gained with this work, many desirable improvements on the modelling software packages have been identified and are presented. Also, a discussion on the potential for large-scale experimentation in ecological niche modelling is provided, highlighting opportunities for research. The results obtained are very important for those involved in the development of modelling tools and systems, for requirement analysis and to provide insight on new features and trends for this category of systems. They can also be very helpful for beginners in modelling research, who can use the process and the experiment example as a guide to this complex activity. (c) 2008 Elsevier B.V. All rights reserved.

On compliance of business processes with business contracts

This paper addresses the problem of ensuring compliance of business processes, implemented within and across organisational boundaries, with the constraints stated in related business contracts. In order to deal with the complexity of this problem we propose two solutions that allow for a systematic and increasingly automated support for addressing two specific compliance issues. One solution provides a set of guidelines for progressively transforming contract conditions into business processes that are consistent with contract conditions thus avoiding violation of the rules in contract. Another solution compares rules in business contracts and rules in business processes to check for possible inconsistencies. Both approaches rely on a computer interpretable representation of contract conditions that embodies contract semantics. This semantics is described in terms of a logic based formalism allowing for the description of obligations, prohibitions, permissions and violations conditions in contracts. This semantics was based on an analysis of typical building blocks of many commercial, financial and government contracts. The study proved that our contract formalism provides a good foundation for describing key types of conditions in contracts, and has also given several insights into valuable transformation techniques and formalisms needed to establish better alignment between these two, traditionally separate areas of research and endeavour. The study also revealed a number of new areas of research, some of which we intend to address in near future.

Major Issues in Business Process Management: An Expert Perspective

The results presented in this report form a part of a larger global study on the major issues in BPM. Only one part of the larger study is reported here, viz. interviews with BPM experts. Interviews of BPM tool vendors together with focus groups involving user organizations, are continuing in parallel and will set the groundwork for the identification of BPM issues on a global scale via a survey (including a Delphi study). Through this multi-method approach, we identify four distinct sets of outcomes. First, as is the focus of this report, we identify the BPM issues as perceived by BPM experts. Second, the research design allows us to gain insight into the opinions of organisations deploying BPM solutions. Third, an understanding of organizations’ misconceptions of BPM technologies, as confronted by BPM tool vendors is obtained. Last, we seek to gain an understanding of BPM issues on a global scale, together with knowledge of matters of concern. This final outcome is aimed to produce an industry driven research agenda which will inform practitioners and in particular, the research community world-wide on issues and challenges that are prevalent or emerging in BPM and related areas.

Modeling control objectives for business process compliance

Business process design is primarily driven by process improvement objectives. However, the role of control objectives stemming from regulations and standards is becoming increasingly important for businesses in light of recent events that led to some of the largest scandals in corporate history. As organizations strive to meet compliance agendas, there is an evident need to provide systematic approaches that assist in the understanding of the interplay between (often conflicting) business and control objectives during business process design. In this paper, our objective is twofold. We will firstly present a research agenda in the space of business process compliance, identifying major technical and organizational challenges. We then tackle a part of the overall problem space, which deals with the effective modeling of control objectives and subsequently their propagation onto business process models. Control objective modeling is proposed through a specialized modal logic based on normative systems theory, and the visualization of control objectives on business process models is achieved procedurally. The proposed approach is demonstrated in the context of a purchase-to-pay scenario.

Compliance aware business process design

Historically, business process design has been driven by business objectives, specifically process improvement. However this cannot come at the price of control objectives which stem from various legislative, standard and business partnership sources. Ensuring the compliance to regulations and industrial standards is an increasingly important issue in the design of business processes. In this paper, we advocate that control objectives should be addressed at an early stage, i.e., design time, so as to minimize the problems of runtime compliance checking and consequent violations and penalties. To this aim, we propose supporting mechanisms for business process designers. This paper specifically presents a support method which allows the process designer to quantitatively measure the compliance degree of a given process model against a set of control objectives. This will allow process designers to comparatively assess the compliance degree of their design as well as be better informed on the cost of non-compliance.