A cláusula shotgun (buy or sell) em acordo de sócios

Resumo

The present essay has the purpose of examining the legal structure (nature) of the shotgun clause, a contractual mechanism commonly used to solve corporate deadlocks, as well as the advantages and limits for its execution in connection with the provisions set forth by the Brazilian Law. In order to approach the theme, we proceeded with a literature review, with the intention of obtaining a legal dogmatic analysis of the shotgun clause. In this sense, we analyzed both the national and the international theoretical repertoire, especially considering the standards of the Brazilian Civil and Corporate Law, which proved to be very scarce. Additionally, we proceeded with a case law research in the repositories of the Superior Court of Justice (“STJ”) and States Courts of Justice of São Paulo (“TJ/SP”) and Rio de Janeiro (“TJ/RJ”), in order to verify the extent of the judicialization of the shotgun clause, as well as the position taken by these courts in cases which a determined partner have legally questioned its incidence or its feasibility. And finally, we also analyzed decisions of foreign courts, that appreciated the incidence and the feasibility of the shotgun clause, in order to bring subsidies to the understanding of the theme based on foreign experiences. In the first section of the essay, the practical context of application of the shotgun clause is analyzed, as well as, its use. We also brought to light a few preliminary concepts such as, shared corporate control and deadlocks, which are essential to the full comprehension of the theme. In the second section, the concept of the shotgun clause is examined, taken as a premise the classic wording for the clause, in addition to its main characteristics. We later on approach its advantages, disadvantages and eventual existing asymmetries. In the third section, we gathered and analyzed other clause pathologies that may affect its validity and legal efficiency. The fourth section of these essay is focused on the efficiency of the shotgun clause in the Brazilian Legal System, as well as, the possibility of its questioning with the Judicial or Arbitral Courts in Brazil. In addition, we recommend some previous procedures to be adopted by the involved parts in order to avoid potential asymmetries. Lastly, we present our conclusions demonstrating that the shotgun clause can be an efficient contractual mechanism for the resolution of corporate disputes, as long as the specific cautions are observed by the parties. Upon the examination of the theory and case law, it was possible to identify the legal basis of the shotgun clause and its practical challenges, whose elements allowed the elaboration of a draft model of the shotgun clause, in order to make its application more precise and with a lower extent of judicialization. Therefore, based on the analysis and study of the mechanism of the clause, the legal professional may decide in the course of the negotiation of a shareholders’ agreement whether the inclusion of a shotgun clause would be the best option to resolve a potential corporate deadlock in the future, as well as if, by choosing to use it, it would be able to be adapted to the concrete case.

Ficha do documento

Tipo

Dissertação

Ano

2020

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso restrito

Identificador

oai:repositorio.fgv.br:10438/28776

Palavras-chave

Shotgun ClauseBuy-sell clauseShareholders agreementsDeadlock provisionsCláusula shotgunAcordo de sóciosAcordo de acionistasImpasse societárioDireitoSociedades comerciais - LegislaçãoAcionistas - LegislaçãoContratos