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1. Loria, Eli. Companhia aberta: objeto social e operações de risco.

Degree: PhD, Direito Comercial, 2012, University of São Paulo

A presente tese objetiva trazer subsídios para a discussão em torno de uma realidade recente no Brasil, qual seja, a crescente utilização de instrumentos financeiros pelas companhias abertas vis a vis seu objeto social, o que exige a proteção de seus investidores e credores. É tratada a tutela do objeto social na legislação societária para as companhias abertas, tipo específico de sociedade escolhido pela gama de interesses que a cercam e pela importância no atual estágio de desenvolvimento do mercado de capitais. Para tanto, será demonstrada a utilidade da cláusula do objeto social na realidade das companhias abertas segundo um ponto de vista tríplice, (i) a disciplina do contrato, (ii) a capacidade de agir da sociedade e (iii) os atos ultra vires praticados pelos administradores, abordando o princípio da boa-fé, teoria da aparência, abuso de poder, em suas modalidades de excesso de poder e desvio de poder, à luz de uma nova realidade descortinada pela crise global de 2008, pela evolução tecnológica e disseminada utilização de complexos instrumentos financeiros. Verificando-se a utilização de instrumentos derivativos complexos e de derivativos de câmbio pelas companhias abertas em operações realizadas no mercado de balcão, de forma pouco transparente e sem controle adequado do risco, que acarretaram substanciais prejuízos em detrimento de todos os acionistas, apresenta-se como indagação se tais operações financeiras especulativas extrapolaram o conteúdo do objeto social e se poderiam, ou não, ter sido contratadas.

This thesis purports to provide arguments in connection with a current reality in Brazil, consisting of the increasing use of financial instruments by publicly-held companies vis a vis their corporate purpose, what requires the protection of investors and creditors. This thesis addresses the rules related to the corporate purpose that are provided for in the corporation law, and that are applicable to publicly-held companies, a corporate type which is elected by various interests surrounding it and by the importance in the current development of the capital market. In this respect, the utility of the corporate object clause in the activity of publicly-held companies will be demonstrated through a triple point of view: (i) the rules related to the corporate by laws; (ii) the companys capacity to act; and (iii) the ultra vires acts performed by the managers of the company, in view of the good-faith principle, disregard institute, abuse of rights, in its modalities of exciding rights and deviation of rights, in the context of the 2008 global crisis, the technological progress, as well as the wide use of complex financial instruments. In view of the use of both sophisticated derivative instruments and foreign exchange derivatives by publicly-held companies in transactions carried out on the over-the-counter market, in a non-transparent manner and without appropriate risk-control, which resulted in substantial losses to all shareholders, it lights up the discussion whether such speculative financial…

Advisors/Committee Members: Lucca, Newton de.

Subjects/Keywords: Atividade econômica; Companhia aberta; Contrato comercial; Corporate purpose; Direito empresarial; Financial instruments; Management responsabilities; Publicly-held companies; Responsabilidade administrativa; Risky transactions; Sociedade anônima de capital aberto; Sociedade comercial

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APA · Chicago · MLA · Vancouver · CSE | Export to Zotero / EndNote / Reference Manager

APA (6th Edition):

Loria, E. (2012). Companhia aberta: objeto social e operações de risco. (Doctoral Dissertation). University of São Paulo. Retrieved from http://www.teses.usp.br/teses/disponiveis/2/2132/tde-25062013-090241/ ;

Chicago Manual of Style (16th Edition):

Loria, Eli. “Companhia aberta: objeto social e operações de risco.” 2012. Doctoral Dissertation, University of São Paulo. Accessed January 23, 2020. http://www.teses.usp.br/teses/disponiveis/2/2132/tde-25062013-090241/ ;.

MLA Handbook (7th Edition):

Loria, Eli. “Companhia aberta: objeto social e operações de risco.” 2012. Web. 23 Jan 2020.

Vancouver:

Loria E. Companhia aberta: objeto social e operações de risco. [Internet] [Doctoral dissertation]. University of São Paulo; 2012. [cited 2020 Jan 23]. Available from: http://www.teses.usp.br/teses/disponiveis/2/2132/tde-25062013-090241/ ;.

Council of Science Editors:

Loria E. Companhia aberta: objeto social e operações de risco. [Doctoral Dissertation]. University of São Paulo; 2012. Available from: http://www.teses.usp.br/teses/disponiveis/2/2132/tde-25062013-090241/ ;


Universiteit Utrecht

2. Cherednychenko, O.O. Fundamental rights, contract law and the protection of the weaker party: a comparative analysis of the constitutionalisation of contract Law, with emphasis on risky financial transactions.

Degree: 2007, Universiteit Utrecht

Originally, contract law was considered to be immune from the effect of fundamental rights, the function of which was limited to being individual defences against the vigilant eye of the State. This traditional view, however, has recently been put under pressure as a result of fundamental rights increasingly becoming relevant for contract law. The relationships between private parties under contract law have started losing their immunity from the effect of fundamental rights, which has led many authors to speak about the constitutionalisation of contract law. The idea behind resorting to fundamental rights in contract law is the protection of the weaker parties such as family sureties against stronger parties such as banks. At the same time, within the system of contract law itself one can trace the tendency towards a more society-oriented contract law which manifests itself in the growing concern for the interests of the weaker party. How should fundamental rights and the modern contract law relate to each other? What role can be played by fundamental rights in the modern contract law in cases involving an imbalance in power between the contracting parties? This book embarks on a comparative analysis and combines theoretical and practical perspectives to provide answers to these questions. In the first place, this book discusses the relationship between fundamental rights and private law in general in Germany, the Netherlands and the UK, as well as in EU law and the law of the ECHR, against the background of the underlying rationale for the distinction between public and private law as it has developed on the continent. Secondly, the book examines whether and, if so, how the interests of the weaker party can be protected on the level of fundamental rights, on the one hand, and contract law, on the other, in the context of risky financial transactions, such as suretyship and investment contracts. The final part of this book builds upon the insights and conclusions drawn from the theoretical and practical perspectives to develop recommendations regarding the desirable extent of the constitutionalisation of contract law. It is argued that the subordination of contract law to fundamental rights with a view to protecting the weaker party is questionable not only from the dogmatic point of view of the distinction between public and private law, but also for the very practical reason that it does not lead to the enrichment of legal discourse for the benefit of the weaker party, but instead entails adverse consequences for finding a solution in the circumstances of a case and the development of law in general. In contrast to fundamental rights, contract law is much better equipped to be able to address the issue of the power imbalance in contractual relationships and to provide a basis for a much more open debate concerning the desirable extent of the protection of the weaker party. It is only the dialogue between fundamental rights and contract law which may lead to a major breakthrough in the understanding of contractual…

Subjects/Keywords: Rechtsgeleerdheid; fundamental rights; contract law; weaker party; constitutionalisation of contract law; risky financial transactions; suretyship; investment services; execution-only relationship; advisory relationship; EC freedoms; EU fundamental rights; private law

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APA · Chicago · MLA · Vancouver · CSE | Export to Zotero / EndNote / Reference Manager

APA (6th Edition):

Cherednychenko, O. O. (2007). Fundamental rights, contract law and the protection of the weaker party: a comparative analysis of the constitutionalisation of contract Law, with emphasis on risky financial transactions. (Doctoral Dissertation). Universiteit Utrecht. Retrieved from http://dspace.library.uu.nl:8080/handle/1874/20945

Chicago Manual of Style (16th Edition):

Cherednychenko, O O. “Fundamental rights, contract law and the protection of the weaker party: a comparative analysis of the constitutionalisation of contract Law, with emphasis on risky financial transactions.” 2007. Doctoral Dissertation, Universiteit Utrecht. Accessed January 23, 2020. http://dspace.library.uu.nl:8080/handle/1874/20945.

MLA Handbook (7th Edition):

Cherednychenko, O O. “Fundamental rights, contract law and the protection of the weaker party: a comparative analysis of the constitutionalisation of contract Law, with emphasis on risky financial transactions.” 2007. Web. 23 Jan 2020.

Vancouver:

Cherednychenko OO. Fundamental rights, contract law and the protection of the weaker party: a comparative analysis of the constitutionalisation of contract Law, with emphasis on risky financial transactions. [Internet] [Doctoral dissertation]. Universiteit Utrecht; 2007. [cited 2020 Jan 23]. Available from: http://dspace.library.uu.nl:8080/handle/1874/20945.

Council of Science Editors:

Cherednychenko OO. Fundamental rights, contract law and the protection of the weaker party: a comparative analysis of the constitutionalisation of contract Law, with emphasis on risky financial transactions. [Doctoral Dissertation]. Universiteit Utrecht; 2007. Available from: http://dspace.library.uu.nl:8080/handle/1874/20945

3. Cherednychenko, O.O. Fundamental rights, contract law and the protection of the weaker party: a comparative analysis of the constitutionalisation of contract Law, with emphasis on risky financial transactions.

Degree: 2007, University Utrecht

Originally, contract law was considered to be immune from the effect of fundamental rights, the function of which was limited to being individual defences against the vigilant eye of the State. This traditional view, however, has recently been put under pressure as a result of fundamental rights increasingly becoming relevant for contract law. The relationships between private parties under contract law have started losing their immunity from the effect of fundamental rights, which has led many authors to speak about the constitutionalisation of contract law. The idea behind resorting to fundamental rights in contract law is the protection of the weaker parties such as family sureties against stronger parties such as banks. At the same time, within the system of contract law itself one can trace the tendency towards a more society-oriented contract law which manifests itself in the growing concern for the interests of the weaker party. How should fundamental rights and the modern contract law relate to each other? What role can be played by fundamental rights in the modern contract law in cases involving an imbalance in power between the contracting parties? This book embarks on a comparative analysis and combines theoretical and practical perspectives to provide answers to these questions. In the first place, this book discusses the relationship between fundamental rights and private law in general in Germany, the Netherlands and the UK, as well as in EU law and the law of the ECHR, against the background of the underlying rationale for the distinction between public and private law as it has developed on the continent. Secondly, the book examines whether and, if so, how the interests of the weaker party can be protected on the level of fundamental rights, on the one hand, and contract law, on the other, in the context of risky financial transactions, such as suretyship and investment contracts. The final part of this book builds upon the insights and conclusions drawn from the theoretical and practical perspectives to develop recommendations regarding the desirable extent of the constitutionalisation of contract law. It is argued that the subordination of contract law to fundamental rights with a view to protecting the weaker party is questionable not only from the dogmatic point of view of the distinction between public and private law, but also for the very practical reason that it does not lead to the enrichment of legal discourse for the benefit of the weaker party, but instead entails adverse consequences for finding a solution in the circumstances of a case and the development of law in general. In contrast to fundamental rights, contract law is much better equipped to be able to address the issue of the power imbalance in contractual relationships and to provide a basis for a much more open debate concerning the desirable extent of the protection of the weaker party. It is only the dialogue between fundamental rights and contract law which may lead to a major breakthrough in the understanding of contractual…

Subjects/Keywords: fundamental rights; contract law; weaker party; constitutionalisation of contract law; risky financial transactions; suretyship; investment services; execution-only relationship; advisory relationship; EC freedoms; EU fundamental rights; private law

Record DetailsSimilar RecordsGoogle PlusoneFacebookTwitterCiteULikeMendeleyreddit

APA · Chicago · MLA · Vancouver · CSE | Export to Zotero / EndNote / Reference Manager

APA (6th Edition):

Cherednychenko, O. O. (2007). Fundamental rights, contract law and the protection of the weaker party: a comparative analysis of the constitutionalisation of contract Law, with emphasis on risky financial transactions. (Doctoral Dissertation). University Utrecht. Retrieved from http://dspace.library.uu.nl/handle/1874/20945 ; URN:NBN:NL:UI:10-1874-20945 ; URN:NBN:NL:UI:10-1874-20945 ; http://dspace.library.uu.nl/handle/1874/20945

Chicago Manual of Style (16th Edition):

Cherednychenko, O O. “Fundamental rights, contract law and the protection of the weaker party: a comparative analysis of the constitutionalisation of contract Law, with emphasis on risky financial transactions.” 2007. Doctoral Dissertation, University Utrecht. Accessed January 23, 2020. http://dspace.library.uu.nl/handle/1874/20945 ; URN:NBN:NL:UI:10-1874-20945 ; URN:NBN:NL:UI:10-1874-20945 ; http://dspace.library.uu.nl/handle/1874/20945.

MLA Handbook (7th Edition):

Cherednychenko, O O. “Fundamental rights, contract law and the protection of the weaker party: a comparative analysis of the constitutionalisation of contract Law, with emphasis on risky financial transactions.” 2007. Web. 23 Jan 2020.

Vancouver:

Cherednychenko OO. Fundamental rights, contract law and the protection of the weaker party: a comparative analysis of the constitutionalisation of contract Law, with emphasis on risky financial transactions. [Internet] [Doctoral dissertation]. University Utrecht; 2007. [cited 2020 Jan 23]. Available from: http://dspace.library.uu.nl/handle/1874/20945 ; URN:NBN:NL:UI:10-1874-20945 ; URN:NBN:NL:UI:10-1874-20945 ; http://dspace.library.uu.nl/handle/1874/20945.

Council of Science Editors:

Cherednychenko OO. Fundamental rights, contract law and the protection of the weaker party: a comparative analysis of the constitutionalisation of contract Law, with emphasis on risky financial transactions. [Doctoral Dissertation]. University Utrecht; 2007. Available from: http://dspace.library.uu.nl/handle/1874/20945 ; URN:NBN:NL:UI:10-1874-20945 ; URN:NBN:NL:UI:10-1874-20945 ; http://dspace.library.uu.nl/handle/1874/20945

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