Banca de DEFESA: RAISSA MAMEDE LINS BRASILIENSE

Uma banca de DEFESA de MESTRADO foi cadastrada pelo programa.
STUDENT : RAISSA MAMEDE LINS BRASILIENSE
DATE: 07/10/2024
TIME: 11:00
LOCAL: https://teams.microsoft.com/l/meetup-join/19%3ameeting_MjRiY2UyNWItMjA2Ni00MTIwLTkxNTQtYzE5NTgyOTI3Z
TITLE:

"Interlocking directorates in Brazil: a study of the competition effects based on forms of its Corporate manifestation"

KEY WORDS:

interlocking directorate; coordinated effects; categories; cross-directorships;competition law.

PAGES: 172
BIG AREA: Ciências Sociais Aplicadas
AREA: Direito
SUMMARY:

Interlocking directorate occurs when two or more companies are interconnected due to the similarity of the members of their management bodies, the relationship that their directors have with a third company, or due to a family relationship. In Brazilian competition law, there is a legislative gap on the subject, which is also not historically addressed in depth in antitrust literature. The research question is: is the competitive treatment given to interlocking directorates in Brazil aligned with the economic and legal rationale surrounding their practice by companies? To answer this question, we searched for cases in which CADE (the Brazilian Administrative Council of Economic Defense) analyzed the issue, which made up the main database of the research, with a total of twenty-one cases. The empirical analysis of the database showed that interlocking directorates can generate three types of competitive effects in the market: (i) integration of the companies, providing support for the authority to consider them jointly, (ii) interconnection of the companies, which now have a greater risk of adopting coordinated conduct, and (iii) no relevant competitive effects. The analysis of the cases also shows that an interlocking directorate can manifest itself in various ways in the market, which has an impact on the effects it produces. Based on the results of the empirical analysis, this study proposes a way of categorizing the interlocking directorate, classifying it according to its forms of manifestation and describing its effects. The categories proposed are as follows: (i) in terms of the form of characterization, which can be direct, indirect, family or an intra-economic group; (ii) in terms of the focus of the competitive concern, which can be control of conduct or structures; (iii) in terms of the form of the relationship between the companies, which can be horizontal, vertical or conglomerate; and (iv) in terms of the existence of cross-shareholding, which can be with or without. Quantitatively, seventeen of the twenty-one cases (80.9%) involving interlocking directorates were analyzed after the publication of the OECD study on the subject in 2008. Eighteen cases (85.7%) involved public limited companies and three (14.3%) involved only limited companies. The cases are well distributed among thirteen rapporteurs and fifteen relevant markets. In eight cases (38.1%), CADE included a prohibition on interlocking in settlement agreements, and in ten cases (47.6%) it found that interlocking promoted the Exchange of sensitive information between companies. As for the effects of directorate interlocking, the conclusions of the empirical research show that (i) in five cases (23.8%), there was integration of business companies, (ii) in eight cases (38.1%), there was interlocking of business companies, (iii) in seven cases (33.3%), there were no relevant competitive effects. As for the proposed categories, CADE analyzed (i) thirteen cases (62%) involving direct interlocking, six (28.6%) involving indirect interlocking, four (19%) involving family interlocking and two (9.5%) involving intraeconomic group interlocking; (ii) seventeen cases (81%) on structural control, and four (19%) on conduct control; (iii) fourteen cases (66.7%) on horizontal interlocking, seven (33.3%) on vertical, and none on conglomerate; and (iv) eighteen cases (85.7%) on interlocking with cross-shareholding, and three (14.3%) without. In conclusion, because they influence the market, the proposed categories of interlockingdirectorate should be taken into account by CADE on a case-by-case analysis, to avoid inconsistencies in identifying the generated effects. The legal treatment of interlocking directorate in national competition law is the most appropriate, considering that the legislative gap requires each situation to be analyzed in light of the peculiarities of the specific case. The categories proposed, which allow for the classification of the competitive effects of interlocking directorates based on their various forms of corporate manifestation, are essential as a parameter capable of guiding the competition authority, without letting go of the analysis of the facts of the specific case. 

COMMITTEE MEMBERS:
Externo à Instituição - RICARDO VILLAS BÔAS CUEVA - STJ
Externa à Instituição - ANA PAULA MARTINEZ - USP
Presidente - 1828282 - AMANDA ATHAYDE LINHARES MARTINS RIVERA
Externo à Instituição - Angelo Gamba Prata de Carvalho - UNICEUB