A sustentabilidade ambiental e social como fundamento da atuação fiduciária de administradores de sociedades anônimas

Abstract

This work examines the use of corporate social responsibility assumptions and other non-economic factors as the basis for the fiduciary duties of business corporation directors. To this end, the research addresses the transformation of contemporary capitalism through the lens of corporate social responsibility, tracing its historical evolution from the late 19th century to the present day. Subsequently, it analyzes the shareholder value theory and the stakeholder theory, which discuss the necessary balancing of interests surrounding the corporation as the main contemporary theories of normative business ethics. The next section, after an introduction about the agency theory, discusses the fiduciary duties imposed on corporate directors. With these considerations in mind, the social function of the company is examined as the materialization of the social function of property in corporate law. Finally, the study investigates to what extent directors may or should exercise their prerogatives to prioritize non-financial aspects of the company, even if this entails additional costs. The analysis is guided by the business judgment rule, derived from U.S. legal experience, and its correspondence in Brazilian corporate law. The conclusion is that using environmentally and socially responsible imperatives as a guideline for the fiduciary duties of corporate directors does not, in itself, constitute a breach of fiduciary duties, even if it imposes non-recoverable costs or causes financial losses to the company.