Bruno Meyerhof Salama

Towards an Intellectual Property Bargaining Theory: The Post-WTO Era

This Article proposes a positive bargaining theory for intellectual property-based technologies in the post-World Trade Organization (“WTO”) era. It focuses on negotiations between patentsensitive industries and developing countries over legal endowments and access conditions in an archetypical patent-sensitive industry, namely the pharmaceutical industry. The ability of developing countries to issue, or threaten to issue, compulsory licenses over pharmaceutical products serves as a working example. This Article’s analysis of the bargaining power possessed by developing countries combines a conventional assessment of market size with a qualitative analysis that highlights the effects of these countries’ propensity to innovate. The ensuing bargaining

A economia da arbitragem: escolha racional e geração de valor

This article examines the institute of arbitration and its relationship with court activities from the perspective of transactions costs. Its objective is to show how arbitration can reduce the transactions costs in a certain normative environment and contribute to institutional improvement. The costs related to the use arbitration and court proceedings work like a price mechanism: the bigger the cost, the lower the demand (and vice-versa). The institute of arbitration can potentially engender a reduction of transactions costs because of (a) the relative quickness with which it is carried out, (b) the relative neutrality of arbiters, and (c) the specialization of arbiters. Moreover, the use of arbitration can create better incentives for the fulfillment of contractual promises. This is so because the use of an arbitration clause in a contract allows the parties to regulate the normative environment to which they will be bound in case of a dispute. The lack of clarity about the lawfulness of arbitration proceedings increases the transactions costs imposed by the normative framework. Higher levels of uncertainty create incentives for the individuals to change their negotiating patterns or simply to reduce their participation in economic activities, thereby reducing the potential for generating wealth for society.

The Art of Law & Macroeconomics

Effective macroeconomic intervention requires not only an understanding of the individuals, but of the structure of their interactions as well. In a constitutional democracy, this structure is largely established by the law. Accordingly, it is possible for legal scholars to contribute to macroeconomic policy based on their understanding of the internal rationality and structure of the legal system. They can do that most presciently by offering legal precepts – directions to policymakers – that are based on the premise that macroeconomic policies are part of a system of legal rules, principles and institutions. In so doing, legal scholarship will not be contributing to the science, but instead to the art economics. John Neville Keynes explained this point most clearly when he distinguished the art of economics from science or ethics.

Where Do We Come From? Innovation and Regulatory Response in the Banking Industry Before the Crisis

The architecture of the financial regulation after the crisis will be an evolution of what preceded it. The available alrernarives for reformation at a certain point are limited by the existing institutions. This means, primarily, that history matters, and that decisionmaking at a certain moment is also limited by decisions and events that took place beforehand. Because of that, the exercise of analyzing “where we are heading to” only makes sense insofar as we can minimally understand “where we are coming from”.

Spread Bancário e Enforcement Contratual: Hipótese de Causalidade Reversa e Evidência Empírica

O consenso da literatura e o de que o baixo nivel de enforcement dos contratos e garantias seja uma causa importante do alto spread bancario no Brasil. No entanto, por conta de uma dinâmica de causalidade reversa, pode haver uma endogeneidade na estimacao deste efeito causal. O presente trabalho formula esta hipotese, apresenta evidencia empirica preliminar e retira implicacoes normativas. Ao final, apresenta licoes uteis para a analise economica do direito e do Poder Judiciario.

Law and Economics in the Civil Law World: The Case of Brazilian Courts

Conventional wisdom holds that economic analysis of law is either embryonic or nonexistent outside of the United States generally and in civil law jurisdictions in particular. Existing explanations for the assumed lack of interest in the application of economic reasoning to legal problems range from the different structure of legal education and academia outside of the United States to the peculiar characteristics of civilian legal systems. This paper challenges this view by documenting and explaining the growing use of economic reasoning by Brazilian courts. We argue that, given the ever-greater role of courts in the formulation of public policies, the application of legal principles and rules increasingly calls for a theory of human behavior (such as that provided by economics) to help foresee the likely aggregate consequences of different interpretations of the law. Consistent with the traditional role of civilian legal scholarship in providing guidance for the application of law by courts, the further development of law and economics in Brazil is therefore likely to be mostly driven by judicial demand.

CONTROLES DE CAPITAL: 70 ANOS DE VAI E VEM

This article describes the evolution of International Monetary Law as it applies to capital controls from the enactment of the Bretton Woods Agreement until today. This undertaking is relevant for it fills an important gap in Brazilian legal scholarship, and also because several governments have recently resumed employing capital controls.

Citizens vs. Banks - Institutional Drivers of Financial Market Litigiousness in Brazil

This article analyzes the institutional drivers of Brazil’s alarmingly high levels of litigation between clients and financial institutions. Most of the policy oriented literature that explores that phenomenon discusses the impacts of a perceived debtor-friendly bias of Brazilian courts on generating feedback loops of litigation that further increases interest rates and creates adverse selection within the pool of potential debtors. This literature therefore addresses the way courts behave once disputes reach their doorstep; conversely, we take a step back to understand the underlying reasons for why such a large number of disputes end up in courts in the first place. We accordingly attribute endemic litigation in Brazilian financial markets to a framework of political, economic and legal institutions and circumstances, which this article aims to unbound and explain.

Menos do que o dono, mais do que o parceiro de truco: contra a desconsideração da PJ para responsabilização de procurador de sócio de empresa

SURPRISING AS IT SEEMS, THERE ARE CASES WHERE CURRENT AND FORMER ATTORNEYS-IN-FACT OF PARTNERS AND EX-PARTNERS ARE HAVING THEIR BANK ACCOUNTS FROZEN AND THE PROCEEDS HELD IN GUARANTEE FOR CORPORATIONS’ DEBTS. AND WHAT IS WORSE: WITHOUT ANY EVIDENCE OF SUCH ATTORNEY-IN-FACT HAVING COMMITTED ANY UNLAWFUL ACT. BRAZILIAN CASE LAW IS THEREFORE MOVING TOWARDS THE CREATION OF A STRICT LIABILITY REGIME OF THE ATTORNEY-INFACT OF PARTNERS. THIS ECCENTRIC AND MATCHLESS EXAMPLE IS HOWEVER NOT ALLOWED UNDER THE APPLICABLE LEGISLATION, VIOLATES TIME-HONORED LEGAL PRINCIPLES, AND, ABOVE ALL, CREATES SERIOUS DISTORTIONS IN THE LEGAL SYSTEM AND THE COUNTRY’S ECONOMIC ACTIVITIES