scholarly journals DUE DILIGENCE: O CRITÉRIO ÉTICO DA MAXIMIZAÇÃO DE RIQUEZAS DE RICHARD POSNER COLOCADO EM APLICAÇÃO EM OPERAÇÕES DE FUSÕES E AQUISIÇÕES

Percurso ◽  
2019 ◽  
Vol 1 (28) ◽  
pp. 116
Author(s):  
Sandro Mansur GIBRAN ◽  
Gabriel Jacobs de OLIVEIRA
Keyword(s):  
Mergers And Acquisitions ◽  
Present Article ◽  
Law And Economics ◽  
Economic Value ◽  
Ethical Standard ◽  
Due Diligence ◽  
Moral Standard ◽  
Wealth Maximization ◽  
Deductive Method ◽  
Final Agreement

RESUMO Este estudo procura estabelecer uma relação entre o critério moral da maximização de riquezas, de Richard Posner, com a realização de Pré-contratos de compra e venda de empresas que antecedem a consolidação de uma operação de fusão e aquisição de sociedade empresárias, em especial ao que se refere à realização de due diligences entre a a celebração de ditas avenças com a finalização do negócio jurídico. Com isto, a presente pesquisa está pautada na resposta para o seguinte questionamento: “De que forma é possível reconhecer a aplicação do critério da maximização de riquezas em operações de fusão e aquisição de sociedade empresárias?”, de modo a justificar juseconomicamente a celebração de avenças prévias à consolidação desta modalidade de contratação no âmbito do direito empresarial. O presente estudo é pautado no fundamento epistêmico do racionalismo, que ganha forma a partir do emprego do método dedutivo de análise, atingido através da leitura de livros, artigos científicos e da pesquisa documental, cumprindo esta última forma de pesquisa com a finalidade de aproximar o estudo com a realidade, muitas vezes abandonada em prol da pesquisa meramente teórica. O presente artigo foi construído a partir da seguinte estrutura: 1) Introdução; 2) A maximização de riquezas como critério ético; 3) Acordos preliminares em operações de fusões e aquisições de sociedade empresárias; 4) A prática da due diligence; 5) A aplicação do critério ético da maximização de riquezas à prática da du diligence; 6) Considerações finais. Ao final da investigação foi possível estabelecer que a critério ético da maximização de riquezas pode ser verificado a partir da análise das características e finalidades da prática da due diligence, na medida em que esta prática viabiliza tomar conhecimento sobre o real valor econômico de determinado negócio, de modo a impedir a realização de uma operação financeira em que uma das partes envolvidas acabe recebendo ou pagando valores que não lhe maximize a utilidade da fusão ou aquisição, evitando-se, assim, uma situação de ineficiência econômica, segundo o critério da maximização de riquezas de Posner. PALAVRAS-CHAVE: Maximização de Riquezas; Eficiência; Posner; Análise Econômica do Direito. ABSTRACTThis study seeks to establish a relationship between the moral standard of wealth maximizing, by Richard Posner and the execution of preliminar agreements on mergers and aquistion transactions as well as the performance of due diligences that takes place between tthe pre-contract and the final agreement. Thus, the present research aims to answer the following question: "In what way is it possible to recognize the application of the wealth maximization ethical standard in operations of merger and acquisition of companies?”, justifying legally and economically the celebration of agreements prior to the final agreements on this kind of contracts. The present study is based on the epistemic foundation of rationalism, based on deductive method of analysis, achieved through books, scientific articles and documental research. The present article was constructed with the following structure: 1) Introduction; 2) The wealth maximization as an ethical standard; 3) Preliminary agreements on mergers and acquisitions transactions; 4) The due diligence process; 5) The link between wealth maximization ethical standard and due diligence; 6) Final considerations. At the end of the investigation it was possible to establish that the ethical standard of wealth maximization can be verified from the analysis of the characteristics and purposes of the due diligence practice, insofar as this practice makes it possible to know about the real economic value of a given business, in order to prevent the execution of a financial transaction in which one of the parties involved ends up receiving or paying values that do not maximize the utility of the operation, avoiding a situation of economic inefficiency, according to the ethical standard of maximization proposed by Posner. KEYWORDS: Wealth Maximzation; Efficiency; Posner; Law and Economics.

scholarly journals The Erroneous Foundations of Law and Economics

2021 ◽  
pp. 1-114
Author(s):  
Mark Glick ◽  
Gabriel A. Lozada
Keyword(s):  
Law And Economics ◽  
Consumer Surplus ◽  
Political Influence ◽  
Consumer Welfare ◽  
Pareto Efficiency ◽  
Wealth Maximization ◽  
The Status ◽  
Definition Of ◽  
Ethical Failures ◽  
The 19Th Century

The fundamental originating principle of law and economics (L&E) is that legal decisions should be (and are) based on maximizing efficiency. But L&E proponents do not define “efficiency” in the way agreed to by most economists, as Pareto Efficiency. A Pareto optimal condition is obtained when no one can be made better off without making someone worse off. Pareto Improvements are win-win changes where no losers exist. In the judicial system, however, there are always winners and losers, because under Article III § 2 of the Constitution a legal case does not exist unless there is a justiciable “case or controversy” in need of resolution. Unable to use Pareto Efficiency, L&E scholars have been forced to adopt alternative definitions of efficiency. Most L&E scholars claim to define “efficiency” based on the work of Kaldor and Hicks, but (perhaps unwittingly) instead use a definition of “efficiency” derived from the 19th century idea of consumer surplus, which encompasses L&E notions such as “wealth maximization,” and “consumer welfare” in antitrust. Neither of these alternative definitions is viable, however. Outside of L&E, the Kaldor-Hicks approach has long been recognized to be riddled with logical inconsistencies and ethical failures, and the surplus approach is even more deficient. Remarkably, virtually none of the numerous L&E textbooks even hint at such problems. Critically, all definitions of efficiency improvements in economics are biased in favor of wealthy individuals or firms, either because they are dependent on the status quo ante distribution of assets, or because they bestow large advantages on parties with political influence or who can afford to bring lawsuits quickly. Many L&E practitioners treat efficiency improvements instead as being objectively good, an error revealing that L&E is primarily motivated by its neoliberal policy agenda.

Negotiating an International Legal Instrument on Biodiversity Beyond National Jurisdiction: A Look Ahead

2021 ◽  
pp. 1-17
Author(s):  
Marta Abegón Novella
Keyword(s):  
Legal Status ◽  
Biological Diversity ◽  
Sustainable Use ◽  
Marine Biodiversity ◽  
General Interest ◽  
Due Diligence ◽  
Look Ahead ◽  
National Jurisdiction ◽  
Final Agreement ◽  
Core Issues

The negotiation of the future Agreement governing the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction is in its final stage. Essentially a treaty for the protection of general interests, the Agreement can generate several benefits for the governance of the oceans. However, in the first three sessions of the intergovernmental conference, deep discrepancies have emerged with respect to the core issues of the package agreed in 2011. This article identifies various formulas and strategies that have been considered in the negotiations and incorporated in the Revised draft text as possible regulatory options with the potential to bring positions closer and facilitate the agreement: avoiding explicit reference to the legal status of marine genetic resources; the incorporation of differential and contextual norms; the introduction of due diligence obligations; the incorporation of internal soft law; and the reduction of the scope of the treaty. These options may help to provide flexibility and differentiation in the regulation but, as essentially pragmatic measures, they tend to sacrifice the ambition of the final Agreement. On the other hand, if States assume their real role and responsibility in the process –that of interpreters of general interest and custodians of marine biodiversity –they would be in a better position to find novel and more ambitious solutions for bringing this crucial Agreement to fruition. This article advocates a return to basics and the placing of the marine environment at the centre of the regulations.

scholarly journals Due Diligence Driving the Success of Mergers and Acquisitions in Macedonia

2016 ◽  
Vol 6 (2) ◽  
pp. 1
Author(s):  
Dushica Stevchevska Srbinoska
Keyword(s):  
European Union ◽  
Mergers And Acquisitions ◽  
Due Diligence ◽  
The European Union ◽  
Public And Private ◽  
Republic Of Macedonia ◽  
Communications Industry ◽  
Potential Risks ◽  
The Republic ◽  
Set Up

The act of due diligence is of vital importance when considering the possibility to enter the Macedonian market through merger and/or acquisition transactions. In this paper, I discuss that due diligence helps reduce potential risks or even results with curtailing the transaction as most of the Letters of intent never come to life. Many Macedonian entities, both public and private, operate in an environment considerably different to the European Union economies, a fact that inspires many questions with potential investors, especially in those who come from the European Union. If proper preparation takes place, and the expectations and processes are duly taken into account, successful merger and/or acquisition can be conducted in the Republic of Macedonia in spite of facing numerous difficulties.  Finally, I discuss that several suggestions/factors can maximize the chances of success, demonstrated with the example of due diligence process set-up prior to the one.Vip merger that marked the Macedonian communications industry in 2015.

scholarly journals On the (Methodological) Future of Law and Economics. The Uneasy Burden of Value Judgments and Normativity

Global Jurist ◽  
2019 ◽  
Vol 19 (3) ◽  
Author(s):  
Paolo Silvestri
Keyword(s):  
Economic Analysis ◽  
Present Article ◽  
Law And Economics ◽  
Self Awareness ◽  
Economic Analysis Of Law ◽  
Value Judgments ◽  
Positive Approach ◽  
Problematic Relationship ◽  
Starting Point ◽  
The Future

Abstract Taking as its starting-point Guido Calabresi’s latest book – The Future of Law and Economics – the present article aims to explore the often neglected issue of value judgments and normativity in Law and Economics. I will show the importance of enquiring Calabresi’s methodological distinction between Law and Economics and Economic Analysis of Law and the related bilateralism thesis in order to understand the problematic relationship between methodological value judgments and ethical value judgments, the ‘distance’ between Calabresi and Posner and the problematic notion of reformism. Then I will try to introduce a different notion of normativity. I will also show the existence of an unresolved tension in Calabresi’s methodological discourse between a positive approach, which seems to be privileged in this book, and his insistence on the inevitability of value judgments in economic analysis. Finally, I clarify the reasons for the ‘ignorance’ of values by the economist by distinguishing between economists’ “lack of self-awareness”, economists’ idolatry and the economists’ lenses.

What is Missing in Corporate Bankruptcy Theories? Revisiting the Efficiency Rationale

2006 ◽  
Vol 39 (3) ◽  
pp. 180-228
Author(s):  
Yaad Rotem
Keyword(s):  
Decision Making ◽  
Law And Economics ◽  
Point Of View ◽  
Corporate Bankruptcy ◽  
Third Order ◽  
Wealth Maximization ◽  
First Order ◽  
Ex Post ◽  
The Many ◽  
Social Wealth

What is corporate bankruptcy law's unique function in the economy? Law and economics scholars reject using it to achieve purely redistributive purposes but this is where their agreement ends. Thus, two questions serve as focal points for debate: First, should the decision on how to redeploy in the economy the assets of the financially distressed firm be mandatory or enabling? Second, which decision-making mechanism should be employed by lawmakers? “First order” theories (arguing for and against a mandatory bankruptcy regime), or “second order” theories (arguing for and against different methods of mandatory decision-making) ensued as a result. Unfortunately, “third order” attempts to supply a convincing answer to the economic question—combining as part of the answer the many redistributive impulses displayed in any corporate bankruptcy setting—were few and scarce. Moreover, scholars have been arguing with each other without fully exhausting the discussion of the gap dividing them. An ex-ante point of view, highlighting the perspective of the debtor-firm's relations with its consensual investors, was offered to lawmakers contemplating social wealth maximization, as a replacement to the conventional ex-post point of view, which emphasizes a more general societal perspective. The distinction between the two paradigms did not go unnoticed by scholars, but unexplainably, it failed to become the center of debate.

scholarly journals Brazilian Administrative Law: influences, Characteristics and recent changes

2018 ◽  
Vol 5 (2) ◽  
pp. 1-20
Author(s):  
Irene Patrícia Nohara
Keyword(s):  
Public Administration ◽  
Present Article ◽  
Administrative Law ◽  
Public Law ◽  
Law System ◽  
The Public ◽  
Deductive Method

The present article aims to expose, using the hypothetical-deductive method, the origins and influences of Brazilian Administrative Law. It is a descriptive article that focuses on the main characteristics of the discipline, belonging to the branch of public law. It also seeks to address recent changes to provide an up-to-date overview of the Brazilian Administrative Law system. It tries to explain how the new institutes and the reforms in the matter contribute to the functioning of the Public Administration.

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