A cláusula sandbagging no ordenamento jurídico brasileiro: análise do caso CBS V. ZIFF-DAVIS PUBL. CO

Abstract

This paper studies the possibility of applying sandbagging clauses, a north american contractual device, in the Brazilian legal system. The objective of this paper is study wheter the clause is compatible with Brazilian rules, especially considering the legal institutes of good faith and fraud. The intent of this paper is to help lawyers and other economic agents involved in M&A transactions to measure the risks and consequences of sandbagging. This project used a qualitative methodology based on a bibliographic review of national and international doctrine about the subject, an examination of Brazilian legislation, and a case study, through the investigation of the American precedent CBS v. Ziff-Davis Publ. Co. At the end of this paper, it was possible to conclude that the discussion about the applicability of sandbagging depends on a concrete, rather than abstract, analysis of the clause, which is why the negotiating context and the conduct adopted by the parties during the negotiation will be determinant to verify the validity and effectiveness of sandbagging in Brazil.