Empresas de impacto social: possibilidades e desafios à luz do direito comparado

Abstract

This study examines the opportunities and challenges that exists for social impact companies in the Brazilian legal system. To that end, the author analyzes the legal characteristics of three models: the model of certification of B companies (self-regulation); the North American (US) model of laws that regulate benefit corporations and; the draft Brazilian legislation that is being considered with a view to possible introduction of benefit corporations into the Brazilian legal system. Social impact business entities are distinct from traditional business formats. They seek governance structures that conciliate on an equal footing, as core business objects, the quest for financial returns and the generation of positive social and environmental impact. The aim is to raise private capital the purpose of resolving social and public issues. However, to the extent that social impact business entities are molded by traditional legal structures, they are, according to their proponents, faced with certain challenges. These challenges relate, in particular, to the fiduciary duty of company officers towards the members (shareholders and quota holders) and stakeholders, and to the need for transparency together with effective mechanisms of bringing the segment to the attention of markets, investors and consumers. On that basis, adopting as a reference the three models mentioned above this study focusses on a conceptual analysis of the following legal aspects pertaining to social impact entities: (i) the identification of the dual purpose (double bottom line) in the company’s objects, so that the profit motive and social and environmental aims co-exist as core objects of the entity (ii) the adaptation and extension of the fiduciary duty of company directors and officers, also requiring them to take the interests of stakeholders into consideration in their decision making and actions, and to be held to account for any failure to do so; (iii) the maintenance of administrative bodies or consultative committees that are compatible with social impact business and the control (oversight) of the achievement of the social impacts; and (iv) the duty to establish mechanisms for monitoring and reporting on the social and environmental impacts that are achieved. The research problems, therefore, the comparative investigation of the opportunities and the challenges faced by self-regulated and legally regulated social impact business entities in order to ascertain, in a propaedeutic manner, their compatibility with the Brazilian system of corporate law.