FGV DIREITO SP - Artigos Selecionados da Revista DIREITO GV

A Coleção Artigos selecionados da Revista DIREITO GV é uma seleção de artigos, resenhas e ensaios inéditos sobre a dogmática das diversas áreas do direito nacional, internacional e global, além de trabalhos de pesquisa aplicada e textos de teoria do direito, sociologia do direito, filosofia do direito e história do direito.

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    Nexo causal em matéria penal: análise da jurisprudência dos tribunais de justiça
    (Escola de Direito de São Paulo da Fundação Getúlio Vargas (DIREITO GV), 2011) Ferreira, Luisa Moraes Abreu
    This paper reports empirical research presented in 2009 as final dissertation for graduation as Bachelor of laws at DIREITO GV about the definition of causation to attribute criminal liability in the Brazilian state supreme courts. A total of 84 criminal appeals, ruled between 2007 and 2008, were analyzed and quantitative and qualitative results related to procedure data, results of the decision and reasoning were extracted. Analysis of these results led to five major findings: (1) discussion of causation occurs almost exclusively in cases of willful crimes, (2) often, though discussed by the parties, a causal relationship is not asserted in the decision, (3) causal relationship is often stated with little reasoning and, generally, with fewer arguments than the statement of negligence, (4) The causal theory most used by the courts is that cause is every necessary condition for the event, and (5) causal relationship is often asserted as a result of negligence.
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    Amarrando as próprias botas do desenvolvimento: a nova economia global e a relevância de um desenho jurídico-institucional nacionalmente adequado
    (Escola de Direito de São Paulo da Fundação Getúlio Vargas (DIREITO GV), 2011) Schapiro, Mario Gomes
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    A experiência do núcleo de estudos de meios de solução de conflitos (NEMESC)
    (Escola de Direito de São Paulo da Fundação Getúlio Vargas (DIREITO GV), 2010) Salles, Carlos Alberto de; Gabbay, Daniela Monteiro; Silva, Erica B.; Tartuce, Fernanda; Guerrero, Luis Fernando; Lorencini, Marco Antônio G. L.
    This paper presents the 5 years’ experience of the alternative dispute resolution group (NEMESC) established at the university of São Paulo law school. The NEMESC begun as a studying and reading group interested to debate and to research about alternative dispute resolution issues, and now a course emerged from this studying group at the law school. This paper considers the activities and practices developed by the group, the methodological choices and students’ involvement during the 5 years of the NEMESC experience to show some positive results. The paper goal is contributing to the debates about alternative dispute resolution and to the exchange of views and experiences about ADR at the law school environment.
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    Repensando a relação entre estado, direito e desenvolvimento: os limites do paradigma rule of law e a relevância das alternativas institucionais
    (Escola de Direito de São Paulo da Fundação Getúlio Vargas (DIREITO GV), 2010) Schapiro, Mario Gomes
    Taken the prevalence of institutionalist and rule of law approach in the contemporary debate on economic development, this paper intends to discuss some theoretical limits of this literature, either positive or normative, mainly in its application to discussions related to the financial sector. This article claims that the spurring of development based on rule of law programs usually assumes a very limited view of the roles played by the law. According to the prevailing view, the role played by institutions in economic development is restricted to providing legal protection for private investors, who are assumed to be the central actors of the financial system. This paper, however, takes a different path and tries to argue that there are different institutional alternatives of economic organization, which goes beyond an arrangement based on capital market and atomized shareholders. An example of that is the Brazilian financial system: in spite of recent rule of law type of reforms, it is still dependent of a developmental bank – BNDES. As a conclusion, the article sustains that indeed law and institutions matter for development, but there are a variety of possible institutional arrangements and also several roles and functions to be played by legal tools, a lot broader than it is supposed by rule of law development programs. A successful institutional organization based on a development bank is an example of that.
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    De onde viemos? Inovação e resposta regulatória na indústria bancária no pré-crise
    (Escola de Direito de São Paulo da Fundação Getúlio Vargas (DIREITO GV), 2009) Salama, Bruno Meyerhof
    The architecture of the financial regulation after the crisis will be an evolution of what preceded it. The available alternatives for reformation at a certain point are limited by the existing institutions. This means, primarily, that history matters, and that decision making at a certain moment is also limited by decisions and events that took place beforehand. Because of that, the exercise of analyzing 'where we are heading to' only makes sense insofar as we can minimally understand 'where we are coming from'.
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    Supremocracia
    (Escola de Direito de São Paulo da Fundação Getúlio Vargas (DIREITO GV), 2008) Vieira, Oscar Vilhena
    The text shows how the FSC is located at the heart of our political system and warns of the dangers to democracy inherent in this stance. Such a danger lies in the fact that the aforementioned court is fulfilling, albeit in a subsidiary manner, the role of rule-maker, accumulating the authority of constitutional interpreter while retaining exercise of legislative power, which traditionally belonged to the representative powers. The text attempts to prove that the Supreme Court has carried out such functions within an analysis of some of its recently tried cases. It also suggests mechanisms capable of dealing with the tensions generated by supremocracy, without characterizing them as something good or bad for our political system.
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    Obrigações empresariais no novo Código Civil
    (Escola de Direito de São Paulo da Fundação Getúlio Vargas (DIREITO GV), 2008) Sica, Ligia Paula Pinto
    In regard of the enactment of the new Brazilian civil code, that unifies the issues treated in the old civil code from 1916 and on the majority of the chapters of the commercial code from 1850, it’s important to insist that the differences between the civil and commercial law remains, according to their peculiar logics. As it is, and as the new code brought several rules of general character, this paper intends to discuss the role of the judge and jurisprudence in the civil law system, by interpretating those rules in a casuistic manner, giving them different treatments, according to the presented facts during litigation, in a way to maintain the autonomy of the law areas mentioned above and guarantee to the economic agents the level of certainty and previsibility, needed to exercise their activities in the market.
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    A economia da arbitragem: escolha racional e geração de valor
    (Escola de Direito de São Paulo da Fundação Getúlio Vargas (DIREITO GV), 2008) Pugliese, Antonio Celso Fonseca; Salama, Bruno Meyerhof
    This article examines the institute of arbitration and its relationship with court activities from the perspective of transactions costs. its objective is to show how arbitration can reduce the transactions costs in a certain normative environment and contribute to institutional improvement. the costs related to the use arbitration and court proceedings work like a price mechanism: the bigger the cost, the lower the demand (and vice-versa). the institute of arbitration can potentially engender a reduction of transactions costs because of (a) the relative quickness with which it is carried out, (b) the relative neutrality of arbiters, and (c) the specialization of arbiters. moreover, the use of arbitration can create better incentives for the fulfillment of contractual promises. this is so because the use of an arbitration clause in a contract allows the parties to regulate the normative environment to which they will be bound in case of a dispute. the lack of clarity about the lawfulness of arbitration proceedings increases the transactions costs imposed by the normative framework. higher levels of uncertainty create incentives for the individuals to change their negotiating patterns or simply to reduce their participation in economic activities, thereby reducing the potential for generating wealth for society.
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    Uma teoria do raciocínio para a teoria do direito
    (Escola de Direito de São Paulo da Fundação Getúlio Vargas (DIREITO GV), 2007) Queiroz, Rafael Mafei Rabelo
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    Sociedades de advogados e tendências profissionais
    (Escola de Direito de São Paulo da Fundação Getúlio Vargas (DIREITO GV), 2007) Cunha, Luciana Gross; Bonelli, Maria da Gloria; Oliveira, Fabiana Luci de; Silveira, Maria Natália B. da
    This article presents the results of the research project entitled 'law firms and their employment and market tendencies' developed in 2005/2006 by GV law in partnership with Direito GV. The goal of this research was to identify the general characteristics of lawyers currently working in São Paulo law firms, as well as their career paths and the emerging tendencies within their legal practices. To gather this data a survey was made of 239 São Paulo lawyers. The respondents were chosen by a statistical sampling which considered the size of their law firms, their gender, and their carrier level. Among the variety of findings discovered through this survey were: (i) an increase in the number of medium size law firms in a market that was previously dominated by small firms; (ii) legal carriers within most law firms are now clearly defined by three distinct levels: junior, senior and partner.
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    Mudanças nos paradigmas de participação direta de atores não-estatais na OMC e sua influência na formulação da política comercial pelo estado e pela sociedade brasileiros
    (Escola de Direito de São Paulo da Fundação Getúlio Vargas (DIREITO GV), 2007) Badin, Michelle Ratton Sanchez
    The direct participation of non-state actors in the decision-making process of the world trade organization (WTO) has changed during recent years, by the pressure of mainly those actors. Such changes brought other rationalities and forms of action to the WTO, promoting changes in its regulatory system. This article analyses how the Brazilian government and its civil society has participated and/or reacted to those changes and the influences of the changes on the formulation of the foreign trade policy of the country as well as in the international trade policy.
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    A função punitiva da responsabilidade civil no direito brasileiro: uma proposta de investigação empírica
    (Escola de Direito de São Paulo da Fundação Getúlio Vargas (DIREITO GV), 2007) Püschel, Flavia Portella
    Taking the existence of civil responsibility with punitive purposes in Brazilian law into account, this article explains how it was introduced by jurisdictional activity in cases involving moral damages and points out the main problems this situation poses to Brazilian law from the standpoint of our juridical dogmatics and public policies. Its main goal is to propose the execution of an empirical research in order to obtain data about the dimension, goals and justification of court decisions recognizing the punitive character of civil responsibility for moral damages. Furthermore, it establishes criteria for use in this research, based on theories of punishment.
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    Responsabilidade pessoal dos administradores e sócios por atos praticados em nome da sociedade e desconsideração da personalidade jurídica
    (Escola de Direito de São Paulo da Fundação Getúlio Vargas (DIREITO GV), 2007) Prado, Roberta Nioac; Donaggio, Angela Rita Franco
    The following article presents an alerts on the problem of the recurring 'disregard doctrine' in Brazil. It faces the bases of this theory with the Brazilian courts’ practices and clarifies the difference between disregard doctrine and personal responsibility of managers and shareholders. It seems to be a subversion of the mechanism of protection of the company for the attendance of other interests. This attitude can harm the legal security, generate obstacles to develop enterprises in a free market, discourage productive investments, hinder the growth, and, in last instance, harm Brazil’s growth.
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    Três reações a um panfleto de Duncan Kennedy
    (Escola de Direito de São Paulo da Fundação Getúlio Vargas (DIREITO GV), 2006) Machado, Ana Mara França; Püschel, Flavia Portella; Luz, Yuri Corrêa da
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    Fundamentos jurídicos e econômicos da OPA a posteriori (tag along) e a questão sob a ótica de empresas que praticam boas práticas de governança corporativa
    (Escola de Direito de São Paulo da Fundação Getúlio Vargas (DIREITO GV), 2006) Prado, Roberta Nioac
    This article analyses article 254-A from Brazilian corporate law (n. 6.404/76), regulated by normative instruction n. 361 edited by CVM (securities exchange comission) that regulates tender offer of listed companies acquisition of controlling. Its focus is the following problem: 'the over price paid for the control power is due to whom'? The text exposes the several legal opinions about this problem and tries to articulate them with economic empirical studies. It demonstrates that economic arguments tend to preponderate when the question is seen by the corporation point of view.
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    The traditional dialogue between law & economics
    (Escola de Direito de São Paulo da Fundação Getúlio Vargas (DIREITO GV), 2005) Lopes, José Reinaldo de Lima
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    O direito na arte de Chaplin e Kafka: ensaio de comparação de tempos modernos com na colônia penal
    (Escola de Direito de São Paulo da Fundação Getúlio Vargas (DIREITO GV), 2005) Sundfeld, Roberta; Sundfeld, Carlos Ari
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    Reflexão: por um direito comum...
    (Escola de Direito de São Paulo da Fundação Getúlio Vargas (DIREITO GV), 2005) Badin, Michelle Ratton Sanchez
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    Jus Cogens: ainda esse desconhecido
    (Escola de Direito de São Paulo da Fundação Getúlio Vargas (DIREITO GV), 2005) Nasser, Salem Hikmat
    The existence of jus cogens, peremptory norms of international law, is widely accepted today even though it is still a category surrounded by uncertainties. Although it has received a definition and a legal regime in the Vienna, convention on the law of treaties its concept, its content and its legal effects remain uncertain. The study of jus cogens and its understanding show the need for an analysis of it relationship to the idea of normative hierarchy in international law, and to the elements of proximity and differentiation with other categories: general international law, erga omnes obligations, international crimes. The doubts that arise from this study must underlie all reflection on the concept and its contribution to international law.
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    Grupos societários: análise do modelo da lei 6.404/1976
    (Escola de Direito de São Paulo da Fundação Getúlio Vargas (DIREITO GV), 2005) Prado, Viviane Muller
    Twenty-nine years after the enactment of law 6.404/1976 it is appropriate to attempt a critique of the provisory model for corporate groups in Brazil. Such a critique is all the more urgent once the largest corporations acting in Brazil have organized themselves as economic groups. This paper aims at reexamining the assumptions underlying Brazilian corporate law, comparing it with the corporate structures currently in place in Brazil and offering, in the process, some preliminary considerations on ways to rethink Brazil’s corporate law vis-a-vis the everyday practice of such economic groups.