Invalidação das deliberações do conselho de administração das companhias

Abstract

The resolutions of the board of directors have not yet been satisfactorily regulated by Brazilian law or properly explained by the jurists. Therefore, the company, its shareholders and the market are exposed to several legal uncertainties, particularly regarding the invalidation of such acts. This study examined the legal regime of the resolutions of the board of directors through the assessment of the pertaining regulation, the opinion of jurists, from Brazil and abroad, as well as the precedents on the matter. The inductive and deductive methods, merging factual data and general principles of private law and corporate law, were used. Despite the dominant opinion of the jurists, to whom a corporate law doctrine of nullity seems essential, it was found that it shows no significant differences in comparison to the current private law doctrine of nullity. Both converge on avoiding the sanctions of invalidity and preserving the effects of invalid acts, thus maximizing stability and legal certainty, in behalf of third parties in good faith. Based on these conclusions, it was explored the possible defects in the decision-making process of the board of directors, involving defects of its meetings, resolutions and votes of its members. It was also considered the role of the Brazilian Securities Comission (Comissão de Valores Mobiliários) and the judicial procedures to remedy such defects.