A inclusão de cláusula compensatória estatutária como um novo patamar de governança corporativa nas sociedades de economia mista listadas nos segmentos especiais da B3

Abstract

The purpose of this paper is to analyze the inclusion of a compensatory clause in the bylaws of a mixed capital company that explores the capital markets in the special listing segments of B3 Novo Mercado and Nível 2, as a new level of corporate governance. The main objective of the research is to examine, using as paradigm the statutory change that occurred in 2018 at Petrobras, the possibility of the emergence of a new standard of corporate governance, embodied in the inclusion of clause in the bylaws of a mixed economy company, which imposes a the need for the state entity, as a controlling shareholder, to compensate the company for any losses that may arise from the execution of public policies that are not in accordance with the relevant collective interest that justified its creation. The approach is carried out through the dialectical method of research, seeking to analyze the movement between the interest of the state entity - as controlling shareholder of a mixed economy company - and the interest of other shareholders, in order to conclude, in the end, The inclusion of a compensatory clause allows the balance of these interests and if it can be understood as a new level of corporate governance. In an auxiliary way, the case study method is used, verifying the statutory change that occurred at Petrobras. Legal interpretation takes place systematically, due to examining the duality of interests from the Brazilian legal system in a hierarchical manner, considering constitutional and infraconstitutional norms. Finally, the research is based on national and foreign doctrine, especially the US, as well as relevant legislation and documentation of the case under analysis. It is concluded that the inclusion of a statutory compensatory clause can be understood as a new level of corporate governance, and should be incorporated along with the other requirements for a mixed capital company to appear in the special listing segments Novo Mercado and Nível 2, as well as to display the certificate of compliance with the Programa Destaque em Governança de Estatais, as it provides alignment of interests between shareholders and managers and mitigation of conflicts that could stem from the difficulties of monitoring and controlling corporate management