ESG, interesse social e responsabilidade dos administradores de companhia

Abstract

The general objective of this thesis is to examine the impacts of voluntary adhesion to the environmental, social and governance (ESG) tenets on the social interest and the liability regime of the managers of Brazilian companies. In this line, the starting point is to study the concept of social interest and present a summary of the state of the art in Brazilian law. Then the analysis shifts to the theoretical and practical aspects of the “ESG phenomenon”, seeking to systematize it and present the various definitions of ESG, along with the market practices involving the theme. In this context, an empirical survey is reported with the goal of understanding how companies with shares listed on the Novo Mercado trading segment of the B3 Exchange have responded to the ESG theme in practice. Then the thesis examines the modification of the social interest in companies that have voluntarily adopted ESG practices, focusing on the allocation of resources in the global scenario and the pressure on organizations to adopt ESG criteria with the objective of generating value for shareholders and controlling risk. Starting from the premise that ESG practices are part of the greater concept of corporate social responsibility (denoting acts that go beyond mere compliance with legal obligations), it is analyzed if the adoption of those voluntary practices by companies can serve to resignify their social interest. Then, the possible effects of that resignification on the potential liability of companies’ managers are discussed, along with new guidelines for application of the business judgment rule and the situations for its invocation in relation to ESG questions. With respect to this aspect, it is proposed to recognize the effectiveness of the existing system of liability specified in the Law of Corporations (Law 6,404/1976), as well as the expansion of the hypotheses for incidence of accountability in light of the “ESG phenomenon”.