Atos de concentração monopolizadores em processos de recuperação judicial: uma análise da (in)aplicabilidade da Failing Company defense com base na Constituição Federal de 1988

Abstract

The purpose of this paper is to analyze the theory of Failing Company Defense and the possibility of its use in Brazil, in judicial recovery. The analysis of free initiative, free competition, the social function of the company and other values set forth in the Federal Constitution of 1988 supports the discussion, with the intention of making compatible the rules laid down in the Law on Recovery and Bankruptcy and in the Antitrust Law. Initially, there is a description about the social function of the company and also its, individual function. Next, the paper describes how the Business Recovery Act presents the possibility of negotiation between the entrepreneurs and their creditors. In the sequence, the outlines of the Brazilian Law are exposed in relation to the State's stance when analyzing concentration acts. Next, we describe the emergence and the use of the American roots institute, pointing out the contours for its application in the United States. Thus, the parameters established for Failing Company Defense's use in Brazil, its adaptation to the national legal system and the competent authority when the discussion about the theory is put in the context of judicial recovery, causing the market concentration in a given segment.