O conflito de interesse como causa de impedimento de voto do acionista

Abstract

Based on the decisions from the administrative proceedings of the Securities and Exchange Commission of Brazil (CVM) regarding self-dealing, the present paper analyzes the criteria used by CVM in determining the ban on conflict-of-interest voting. Evidence subsequent to the Tractebel decision – when the CVM started adopting the ex ante control of self-dealing – does not comply with the precedent established by Tractabel for determining the ban on conflict-of-interest voting, since the concept of self-dealing has been broadly applied. Based on this finding, the present paper correlates the broadening of the empirical coverage of the selfdealing with the prevailing context at the time the CVM decisions had been rendered, in light of the greater public demand that state agencies fully exercise punitive and supervisory activities, due to the Lava Jato Operation. This study indicates that the expansion of the normative definition of a conflict of interests means that the decisions of the CVM lack on predictability and, consequently, regulated corporations lose the ability to foresee the legal consequences of their acts, especially in relation to the delimitation of what is an extra-social interest capable of banning a shareholder vote. Finally, it is concluded that for the adoption of the ex ante control of self-dealing, there must be a clear and precise definition of the concept of self-dealing, which is proposed at the end of the work.