Research

Contractual Autonomy Under Scrutiny – Analysing the Boundaries of Shareholders' Freedom in Shareholders' Agreements

2024/2025 (New Perspectives of Corporate Governance)
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Even though private autonomy is a recognised historical and axiological foundation of Portuguese law (in particular, Portuguese Civil law), both its content and limits are not easily determined. Particularly in the corporate universe, marked by the sharp and rapid transformation of organisations, the discussion around contractual freedom is constantly changing as it is successively tested due to the creation or importation of legal institutes and the different needs of the agents in those organisations.

 

The widespread existence of doubts regarding the limits of such contractual freedom has fuelled disputes among scholars about the matters to be regulated in both the articles of association and the shareholders' agreements. The debate has effectively shaped the progress in this field: it has made it possible to overcome doubts about the admissibility of the shareholders’ agreement or even to provide stability to the debate of who could be a party to those agreements. The discussion, however, does not end in the contractual design of shareholders' agreements. It is necessary to position the discussion on the compatibility of the various clauses imported from international practice with Portuguese law (which creates serious obstacles to the contracting with both national and international investors) and the ethical challenges raised either by the parallel organisation that results from shareholders’ agreements or its definition of business plans and objectives "in the shadows".

 

These reflections, while necessary, need to be brought closer to the market and the practitioners as a way to provide stability to these issues in a concrete contractual body that will allow us to guide the discussion on the limits of parasociality with agents. This is our main goal with this project: to influence the practice of shareholders’ agreements in terms of efficiency and business ethics, taking advantage of the legal system potential.

 

To this end, we seek an innovative analysis based not only on the close dialogue with practitioners, but also on the most needed synergy with other scientific areas that influence legal solutions, such as business and, in particular, business management. As such, as we are driven by the need to broaden the discussion not only to economic agents, but also to academics in these areas, we have established formal/informal collaborations.

 

This research project falls within the scope of the CIDP's research line on New Perspectives on Corporate Governance and represents one of the main transformations in Corporate Law. The scope of the research is further connected to the other research lines approved for the 2024/2029 period and, in general, with the objectives pursued by the CIDP. The discussion on the content and limits of contractual freedom, even though it is focused on shareholders' agreements, is of transversal importance to legal science and, in particular, to private law. It is therefore a central area for common and commercial private law and constitutes one of its historical, dogmatic and axiological foundations, in line with the study of the Foundations of Private Law. The methodology adopted and the results of the research also aim to reflect the diversity of private law, in line with the approach to comparative law underlying the research line Diversity, Harmonisation and Unification of Private Law.

Principal Investigator

Prof.ª Doutora Ana Perestrelo de Oliveira

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Dr.ª Marta Boura

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Researchers

Prof. Doutor Francisco Mendes Correia

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Dr.ª Catarina Almeida Coelho

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Dr. Chen Chen

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Dr.ª Filipa Santos Rocha

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Dr. Henrique Marques Candeias

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Prof. Doutor Tomás Pinto Castelo

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Consultants

Prof. Doutor David Oliveira Festas

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Prof.ª Doutora Maria da Graça Trigo

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Prof. Doutor Carlos Osório de Castro

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Prof.ª Doutora Rita Xavier de Brito

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Prof.ª Doutora Raquel Santos Pereira

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Prof. Doutor Diogo Barros Pereira

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Prof. Doutor Tomás Almeida Ribeiro

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Prof.ª Doutora Joana Silva Leal

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Prof. Doutor Theodor Baums

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Prof. Doutor Massimo Confortini

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Prof.ª Doutora Sofie Cools

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Prof. Doutor Klaus Ulrich Schmolke

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  • Portuguese Bar Association
  • ASAP – Associação das Sociedades de Advogados de Portugal
  • IPCG – Instituto Português de Corporate Governance
  • Associação Empresarial de Portugal
  • BRU-ISCTE
  • M&A Worldwide

The project will be implemented in three phases, as follows:

Phase 1: to collect information and market research

  • Shareholders’ Agreements Toolbox: to collect information on the practice of shareholders’ agreements, both in case law and in business contracting, with the aim of building a database of cases and clauses that will identify the main critical areas to discuss;
  • This data will be used to prepare a survey aimed at those who, in the practice of their profession, are in contact with these matters (essentially lawyers and law firms), with a view to assess the main difficulties in accommodating the practice into the legal system, both from the perspective of international and national partners;
  • Based on the survey’s results, a report will be drawn up and published, which will support the preparation of a master agreement.

Phase 2: comparative law perspectives

  • International experts will be invited to participate and share their views. The purpose is to facilitate comparative law analyses on the limits of contractual freedom and the constraints faced by the various typical clauses in the different legal systems;
  • The ethical dimension will give rise to discussions on sensitive issues with a social impact;
  • These results will be published, bringing together the dogmatic and practical aspects of shareholders' agreements.

Phase 3: the master agreement as a result of the research

  • As a result of the project's initiatives and the research carried out, the researchers will prepare scientific papers in English to be included in a collective work to be published by an international publisher;
  • A standardised model of typical clauses will be prepared and published for use in contracts where Portuguese law is applicable (the so-called master agreement).

The project's research team was designed in light of the objectives identified herein. If, on one hand, the variety and seniority of the researchers will allow to conduct a detailed research on this field, exposing them to the research technique, on the other hand, it also has the advantage of providing new discussions and inputs on both the scope of contractual freedom and the related ethical implications. The preparation of the master agreement would, however, lack a more experienced view on how the negotiation of the clauses is conducted. The consultants of the project will be able to monitor the results of the research in light of the (national and international) commercial practice and to test the technical and practical feasibility of the contractual balance that will be reflected therein.


Research Lines

CIDP has decided to structure its activities for the period 2023-2028 according to five research lines, which will act as the basis for research projects to be developed, involving teams of rese...
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Projects

A total of 21 Research Projects have been approved by the Board of Directors to be developed within the scope of CIDP’s different thematic lines in the period 2024-2029.
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