A due diligence e a proteção do adquirente no âmbito dos share deals

Abstract

The existence of a due diligence process conducted by the potential buyer in the negotiation phase preceding the acquisition of a company has become an increasingly common stage within the context of these types of transactions. However, and despite its eminently practical nature, this figure has generated interest and raised questions among legal scholars regarding, in particular, the legal framework applicable to it. The present thesis seeks to offer an answer to some of these questions, and, in particular, to determine, on the one hand, the extent to which the board of directors of a company intending to acquire another company is subject to the duty to carry out a due diligence investigation before concluding the transaction and, on the other hand, whether the performance of such an investigation could be classified as a legal burden that falls on the acquiring company itself. For those purposes, we have analysed the main functions and purposes typically pursued within the context of a legal due diligence, namely in what concerns the purchaser's self-information burden and the determination of the scope and extent of the seller's information duties. While our analysis showed that a due diligence investigation may play a crucial role in protecting the buyer's position within the acquisition of companies, we have concluded that, on the one hand, the assertion of the existence of a legal obligation of the board of directors of the acquiring company to carry out due diligence will necessarily depend on the circumstances of each case and that, on the other hand, contrary to what has been advocated by the majority of the legal scholars and case law, the performance of a due diligence should not be qualified as a true legal burden on the potential acquirers of a company.

Date of Award	27 Jun 2023
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Maria de Fátima Ribeiro (Supervisor)