Delimitação da indenização em operações de fusões e aquisições no Brasil

Content Provider	Semantic Scholar
Author	Gorescu, Carla Pavesi
Copyright Year	2019
Abstract	The purpose of this master’s dissertation is to critically analyze the structure of indemnification clauses in mergers and acquisitions transactions in Brazil, from the standpoint of contractually designing the indemnification that may be due by the seller by excluding or including certain types of losses, as well as setting forth legal and contractual criteria to calculate the indemnity amount. To achieve this purpose, this dissertation clarified certain key concepts, presented practical examples of contractual arrangements, mapped potential interpretations of the most commonly used notions and terms in the market practice and proposed recommendations from a contractual drafting perspective. The dissertation is divided into three chapters. The first chapter presents some preliminary considerations involving the indemnity clause in mergers and acquisitions transactions in Brazil, including the main related concepts, their role and their use in the Brazilian market practice. In addition, the chapter also analyzes the indemnity mechanism in M&A transactions in light of certain concepts and theories of the economic analysis of law. The second chapter examines the main aspects involving the concepts of loss of profits, loss of opportunity, non-pecuniary damages (which includes moral damages) and indirect damages, as well as the validity requirements applicable to limitation of liability clauses, so that such damages can be excluded from the indemnification. The chapter also analyzes the concepts of consequential damages, direct damages, lost profits, incidental damages, diminution in value damages, damages based on multiple of earnings and punitive damages that are often subject to exclusion clauses in M&A transactions of common law systems. Subsequently, some considerations are made on differences and similarities between common law and civil law systems, regarding the contractual models of indemnification clauses in M&A transactions. The second chapter is finalized with the presentation of preliminary conclusions regarding (i) the definition of liability in M&A transactions not only by excluding types of damages, but also by eventually including damages that are not expressly provided for in our legal system, as well as (ii) the recommendations that may be given for contractual drafting purposes, by identifying certain legal and contractual criteria for fixing damages. The third chapter is divided into two main parts. The first part analyzes the Abengoa v. Ometto Agrícola case law, identifying the main facts involved, the arguments raised by the parties and the decisions rendered by the arbitral tribunal and the Superior Court of Justice (STJ). Finally, the chapter analyzes how and the extent to which the interpretation given by the STJ in such case affects the drafting of indemnification clauses in M&A contracts, with respect to the criteria for calculating the amount to be indemnified by the seller in certain cases.
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Alternate Webpage(s)	http://bibliotecadigital.fgv.br/dspace/bitstream/handle/10438/28143/MPD_TCC%20Carla%20Gorescu_Set%2019_Versa%CC%83o%20para%20protocolo%20final%20v2.pdf?isAllowed=y&sequence=1
Language	English
Access Restriction	Open
Content Type	Text
Resource Type	Article