Esgwasghing e Brasila insuficiência do modelo de governança corporativa comply or explain à luz do direito comparado

Resumo

The present work is dedicated to investigating whether the corporate governance model that has been adopted in Brazil, called comply or explain, is sufficient to combat ESGwashing. This marketing practice, undesirable in light of economic efficiency, has been practiced by companies in the quest to attract consumers and qualified capital from those who are willing to pay more for sustainable products and services. To this end, the research goes through ten points related to ESG, put in the form of questions, but with the objective of answering the central question of the research: the comply or explain disclosure model that is being adopted in Brazil by financial market regulators ( Central Bank and CVM) is enough to achieve the goals and parameters of socio-environmental governance (ESG) or should the regulator adopt the carrots and sticks model, as it has stricter and more interventionist rules? To answer this question, the first point we will investigate is whether ESG is a new topic on the world stage or if there was already concern with environmental and social issues previously at the UN. Afterwards, we will investigate whether the use of the “ESG” terminology is correct or if it contributes, in some way, to the practice of ESGwashing. With this base established, we will face the following points: (i) what are the reasons for companies to practice the socio-environmental governance lie (ESGwashing); and (ii) what are the models of lies practiced. From this, we will verify the existing market failures in these untruths and if they fit the reasons why the State should regulate corporate governance and the form of disclosure. Given this, for disclosure regulation to be effective, a model that proves to be sufficient in foreign law must be introduced. At this point, we will bring up the problem of the legislative model that has been adopted in Brazil, which is based on comply or explain corporate governance. As an alternative, we will bring the model created in the USA and England, the so-called carrots and sticks. In addition, to arrive at the sufficiency or not of the governance models, we will study the models of norms edited at the international level, with the distinction of the effects of the hard law and soft law norms and their respective vertical and binding power at the international level, bringing examples existing in Comparative Law that prove the insufficiency of the Brazilian model and the need to regulate the matter, which cannot remain solely under the exclusive control of individuals, due to the risk of not having the effective implementation of socio-environmental governance. We will also address the constitutional bias of the theme, a peculiarity that exists in Brazil, considering the commandment of art. 170 of the Constitution of the Republic, which practically does not exist in Comparative Law. Finally, we will analyze how international standards are being internalized by the two main regulators of the national financial market: the CVM and the Central Bank of Brazil.

Ficha do documento

Tipo

Dissertação

Ano

2022

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/33501

Temas

Governança

Palavras-chave

ESGESGwashingRegulaçãoAssimetria de InformaçãoCusto de AgênciaRegulationInformation AsymmetryAgency CostDireitoInvestimentos - Aspectos ambientaisDireito regulatórioInformação assimétricaGovernança