Deberes Fiduciarios frente a Procesos de Recuperación Empresarial en Colombia y Brasil

Abstract

The purpose of this article is to establish how non-compliance with the administrator's fiduciary duties affects the interest of the company's creditors and partners, given the entry into the business insolvency regime established by Colombian law number 1,116 of 2006 and the judicial reorganization process established by law 11,101 of 2005 in Brazil. To achieve the proposed objective, in the first part, a reference is made to the managers of economic entities, determining which of them bear such quality. Second, we analyze the concept of the fiduciary relationship and focus on the fiduciary duties of the administrator based on Colombian and Brazilian legislation, based on doctrine and jurisprudence. Based on this, reference is made to the generalities of the business insolvency process in Colombia and the judicial reorganization process in Brazil, determining the obligations and powers of the administrators. Finally, an interpretative approach to the way in which the administrator should act, based on fiduciary duties, is proposed to safeguard the interests of the company, associates and creditors, presenting some conclusions.