The Banking Regulation Review: Brazil
Brazil has a very sophisticated and solid banking system. As an extremely important component in fostering economic growth, the Brazilian banking industry and, consequently, Brazilian banking regulation, are constantly developing, providing local market participants with the tools required to enable them to structure complex and innovative products.
Banking regulation has played a crucial part in setting the limits and procedures that allow local players to operate in one of the most important markets in the international economy,2 ensuring a secure environment for investors and for the public in general. Local regulators do not limit their activities to the issuance of rules and guidelines for the banking industry; they also closely supervise market participants to verify whether regulatory requirements are being duly complied with.
An example of this practice is the extensive amount of information that must be provided by banks and other entities to the regulators, sometimes several times in one day. As a result of this constant verification, in the past few years the Brazilian banking industry has not seen any unpredictable failing of local banks, as the Central Bank of Brazil (the Central Bank) has intervened prior to the severe deterioration of a local bank. Banco Azteca do Brasil SA in 2016, Banco BVA SA in 2014 and Banco Cruzeiro do Sul SA in 2012 are examples of intervention and subsequent extrajudicial liquidation of local banks, which, even though not completely eliminating them, did help to reduce the effects of insolvency on stakeholders and mitigate the systemic risk that could arise thereunder.
The Brazilian banking system also provides mechanisms for liquidity problems faced by financial institutions. For instance, the Credit Guarantor Fund, a private non-profit organisation authorised to be incorporated by the National Monetary Council (CMN) and composed of local banks, which was originally intended to protect investors of insolvent financial institutions, has provided assistance to financial institutions with liquidity problems on more than one occasion.
In addition to the precautionary and reactive measures adopted by local regulators to prevent insolvency scenarios, the applicable rules also enable Brazilian banks to issue several types of funding instruments in Brazil and abroad to finance their operations, thereby maintaining acceptable liquidity levels. This variety of instruments is a result of market demand and a positive response by regulators to the needs of market participants, which have recently resulted in new regulations permitting the issuance of new forms of funding instruments, as further addressed in Section V.
By doing business in such a regulated but rather secure financial environment, Brazilian banks have been able to succeed and, many times, foster results in the middle of the economic crises that Brazil has faced in the past.
The regulatory regime applicable to banks
i General aspects
An important aspect to consider when discussing banking regulation in Brazil is that there is no legal definition of 'bank' under Brazilian law. The Banking Law,3 which sets forth the basis of the National Financial System (SFN),4 defines in Article 17 the term 'financial institution' as those public or private companies whose principal or secondary activity is the collection, intermediation or investment or custody of their own or third-party funds. It is therefore left to local regulators to determine the types of financial institutions and the activities that may be performed thereunder.
Banks are thus defined in terms of their permissible functions. The main categories of banks are:
- commercial: financial institutions whose main activities, inter alia, are receipt of time deposits, offering checking facilities, providing short-term lending, collecting trade acceptance bills and other credit documents, and accepting and processing utility bill payments;
- development: intended to foster the economic growth of specific regions or industrial sectors. Financing tends to be long term and related to specific projects;
- multi-service: aggregate of more than one type of banking activity, of which one must be either commercial or investment. Thus, a multi-service bank may, for instance, apply for one or more of the following:
- commercial bank licence (if the entity was originally established as an investment bank);
- investment bank licence (if the entity was established as a commercial bank);
- real estate finance licence;
- consumer credit licence;
- leasing licence; and
- foreign exchange authorisation; and
- savings: federal and state-owned financial institutions very similar to commercial banks, which accept savings from individuals by means of deposits in checking accounts for a fixed term or in savings accounts, provide loans and perform various services in the public interest, such as the receipt of federal taxes and charges.
All these types of institutions are highly regulated. Different from individuals or corporations, which under Brazilian civil law are authorised to undertake any act that is not expressly forbidden, regulated entities may only perform activities that have been expressly authorised by law or regulation. As such, the role of regulators has become very important in relation to this type of activity.
The three entities primarily entrusted with the role of regulating and overseeing financial institutions in Brazil, including banks, are the CMN, the Central Bank and the Brazilian Securities Commission (CVM).5
The CMN was created by the Banking Law, and is the highest authority in the Brazilian financial system. Among the CMN's responsibilities are supervising the monetary and currency exchange policies for the purpose of the economic and social development of Brazil, as well as operating the Brazilian financial system.
Among its duties, the Central Bank has the obligation to assure the stability of the purchasing of the national currency and the solidity of the national financial system. The Banking Law granted powers to the Central Bank to implement monetary and credit policies issued by the CMN, and to regulate public and private financial institutions and payment arrangements, arrangers and institutions.
The Central Bank is responsible, inter alia, for exercising control over credit and foreign capital, receiving mandatory payments and voluntary demand deposits made by financial institutions, engaging rediscount transactions and providing funding to financial institutions, as well as exercising its function as the depository of national gold and foreign currency reserves. It is also responsible for controlling and approving the incorporation, functioning, transfer of control and corporate reorganisation of financial institutions and payment institutions.
The third regulator, the CVM, which was created by the Capital Markets Law,6 regulates the securities markets in Brazil. As securities activities are strictly connected with banking activities, especially investment banking, the CVM also has an important role as regulator of the banking industry.
Pursuant to the Capital Markets Law, the CVM shall implement policies pertaining to the organisation and operation of the securities industry. Accordingly, the CVM's responsibilities encompass the regulation and supervision of all securities activities, including issuance, distribution and trading of securities; the organisation and functioning of the stock exchanges; and practices in the management and custody of securities portfolios.
i Relationship with the prudential regulator
The Central Bank is the main regulator of banking activities, as it is responsible for supervising the banking activities of local banks and financial institutions. That supervision relies on the following principles: supervision focused on risk, continuous supervision and transparency.
Inspection is an essential element of the supervision process to assess the economic and financial situation of supervised entities, and their management and compliance with the applicable laws and regulations. It aims to identify the relevant risks of financial institutions and evaluate their respective controls.
As per the information made available by the Central Bank for the improvement of the processes of supervision of financial institutions and conglomerates whose businesses encompass subsidiary entities in other countries, various procedures are adopted, such as:
- elaboration of supervision agreements with foreign authorities;
- monitoring of activities of international organisations in matters related to supervision;
- exchange of information with foreign supervisory authorities;
- coordination, support and follow-up of missions by foreign supervisors in the country; and
- dissemination of the Brazilian supervision to the international context.
In addition to physical supervision, financial institutions are subject to regular reporting requirements to the Central Bank. Several types of detailed reports and financial information are submitted by local institutions to the Central Bank, enabling the authority to keep a very close eye daily on the financial situation of the market players.
In addition to the reporting and inspection requirements, the applicable rules are very restrictive on the management of banks. Prior to a final appointment as administrator of a financial institution, individuals must submit an exhaustive list of documents, information and declarations to the Central Bank, which may even prevent a person from being nominated if that person does not have a good reputation.
ii Management of banks
Pursuant to the organisation of a financial institution, it is important to highlight that, with few exceptions, a financial institution, such as a bank, must be incorporated as a sociedade anônima, which is the corporate form that most closely resembles a joint-stock company or corporation. The legal requirements pertaining to joint-stock companies are governed by the Corporations Law.7
Joint-stock companies are managed by an executive committee and, if applicable, a board of directors. In addition, a board of auditors may be set up, either provisionally or permanently, to inspect the activities of the other management bodies. The executive committee and the board of auditors must be composed of individuals residing in Brazil and meeting the requirements prescribed by law. Members of the board of directors do not need to reside in Brazil.
Members of administrative bodies of financial institutions are subject to civil liability, similar to the potential liabilities to which administrators of any company are subject, in addition to further criminal and administrative liabilities applicable to managers of financial institutions.
Civil liability and exceptional rules
In the ordinary course of the transactions of financial institutions, the civil liability of administrators (including directors and officers) is regulated by the Corporations Law. Article 158 of the Law provides that an administrator will not be deemed personally responsible for the obligations incurred on behalf of the company and on account of a regular act of his or her administration. However, an administrator will be responsible under civil law for losses caused by acts carried out with guilt or malice, and in violation of the law.
An administrator will not be responsible for unlawful acts practised by other administrators except when, for connivance therewith, he or she fails to reveal them, or when, upon being aware thereof, he or she refrains from acting for the purpose of barring the practice thereof. There is joint liability of the administrators when the decisions are taken by collegiate bodies, such as the decisions taken by a board of directors. In this regard, any act or omission committed by a board is the personal responsibility of each of the members who form it, and to be exempt from any future responsibility, a dissident administrator should express his or her disagreement with the resolutions taken through a clear and express record in the minutes of the meeting of the relevant administrative body.
An administrator who agrees with the practice of acts in violation of the law or a company's by-laws will be deemed jointly liable for the losses resulting therefrom and be compelled to provide indemnification for the losses caused.
The Corporations Law imposes the duty of diligence on administrators of institutions during the performance of their duties, providing that they shall be guided by the care and diligence that every active and honest person uses in the administration of his or her own business. Administrators are otherwise subject to the duty of loyalty to their company and must maintain reserve and diligence when dealing with the company's affairs.
There are also some exceptional rules. Pursuant to the terms of Article 40 of the Bank Bankruptcy Law,8 administrators of financial institutions under a special administration regime, intervention or extrajudicial liquidation are jointly responsible for the obligations undertaken by the institution during their terms of office until those obligations are actually satisfied (that is, liquidated). Pursuant to the terms of the sole paragraph of the aforementioned provision, the administrators' joint responsibility referred to therein shall be limited to the amount of the losses caused during their term of office.
Administrative responsibility is subject to the same principles as criminal responsibility (i.e., it does not admit an agent's strict responsibility). This means that a penalty shall only be imposed on a person in the event that the act – commission or omission – is described in the law or the normative rule issued by the applicable authority, in particular the Central Bank of Brazil, as being an administrative infringement.
In fact, in the opinion of jurists and case law, it is incontestable that administrative responsibility is always individual and subjective. Only those (the financial institution, administrators or controllers) who practice the punishable act (which may be an act or an omission) may be punished.
iii Regulatory capital and liquidity
In March and October 2013, the Central Bank published a set of resolutions and official letters relating to the adoption of the Basel III global standards of capital requirements. The new rules aim at increasing the capacity of financial institutions to absorb shocks, increasing the strength of the financial system and promoting sustainable economic growth.
By this set of rules, financial institutions may determine presumed credit based on the provisions made for doubtful receivables in each calendar year, whenever credits arise from temporary differences resulting from provisions for doubtful receivables existing in the preceding calendar year, and from the balance of the accrued fiscal losses of the preceding calendar year. New rules were also issued concerning financial bonds pursuant to which companies shall compose the prudential consolidated balance to be used in assessing the capital and requirements as well as the possibility for the Central Bank to limit payment of dividends by financial institutions in the event that the latter should disregard the prudential requirements defined by the CMN.
The implementation of the new capital structures in Brazil began on 1 October 2013 and shall follow the agreed international time frame until the conclusion of the process on 1 January 2022. Changes regarding the capital ascertainment for credit risk that do not result in additional capital and that can easily be implemented by the institutions became effective as of the issuance of the new rules.
iv Recovery and resolution
The Bank Bankruptcy Law specifically governs the insolvency regimes of financial institutions. It essentially provides for two different regimes, both administratively conducted by the Central Bank: the intervention regime and the extrajudicial liquidation regime.
If a financial institution is unable to stabilise and resume operations while overcoming a financial crisis, or carry out an orderly liquidation, the intervention may be converted into an extrajudicial liquidation or bankruptcy liquidation, as applicable.
The Bank Bankruptcy Law stipulates that intervention may be decreed ex officio by the Central Bank for a period of six months (which may be postponed for an additional six months) when a financial institution suffers a loss due to mismanagement that generates risk for its creditors, or repeated breaches of banking laws are verified and not rectified after orders from the Central Bank. The intervention process is conducted by an individual appointed by the Central Bank.
After the intervention period, the Central Bank may decide to cease the intervention and allow the bank to return to its normal activities; to decree the extrajudicial liquidation of the bank; or to authorise the intervener to file for voluntary bankruptcy liquidation of the bank.
Intervention has the following effects on the obligations of a financial institution:
- suspension of enforceability of matured obligations for the duration of the intervention;
- suspension of the flow or count of the term of maturity of the previously existing obligations;
- enforceability of all pre-intervention obligations is stayed for the duration of the intervention period; and
- creditors are generally prohibited from enforcing and collecting their respective claims against the financial institution undergoing an intervention irrespective of the cause of the event of default and the nature of the claim.
Extrajudicial liquidation of financial institutions may be decreed by the Central Bank ex officio or at the request of the intervener, in the event that the relevant financial institution, inter alia:
- has its economic or financial conditions affected by relevant events, especially if it fails to punctually satisfy its commitments or could be declared bankrupt;
- seriously violates the legal rules and regulations; or
- suffers a loss that subjects its non-privileged creditors to an abnormal risk.
Extrajudicial liquidation is carried out by a liquidator appointed by the Central Bank and may be defined as an administrative bankruptcy or liquidation proceeding.
The decree of extrajudicial liquidation will result in:
- the suspension of any action (for collection) or enforcement proceedings pending against a financial institution concerning its rights or interests (i.e., creditors will not be able to foreclose on respective collateral since the assets of the financial institution will remain frozen until the end of the extrajudicial liquidation);
- automatic acceleration of the maturity of the obligations of the financial institution; and
- interruption of the satisfaction of any obligations assumed by the financial institution.
In addition, interest ceases to accrue on the obligations assumed by the financial institution.
The extrajudicial liquidation will cease:
- when the Central Bank accepts that the necessary guarantees are in place to allow the institution to take back control;
- with the approval of the final accounts of the liquidator and registration of those accounts in the appropriate registry to evidence the termination of the legal entity; or
- with the decree of the entity's bankruptcy when the assets of the entity are not sufficient to cover at least half of the non-preferred credits, or if there is evidence of bankruptcy crimes.
Conduct of business
Banking activities are highly regulated, and require local financial institutions to comply with the extensive regulations issued by the CMN, the Central Bank and the CVM. An important aspect that local banks must observe is banking secrecy.
Banking secrecy and confidentiality have always been of major importance and are protected by the Brazilian Federal Constitution, which determines that intimacy and private life may not be violated. Exceptions to this constitutional right can be resorted to only in extreme cases, and as a rule require a judicial order.
Banking secrecy was regulated in 2001 by the Bank Secrecy Law,9 determining that financial institutions should maintain secrecy in all their passive and active transactions, as well as in any services rendered.
The Bank Secrecy Law, however, granted tax authorities a special authorisation to obtain banking information in the event that an administrative proceeding had been initiated. This exception was highly debated and discussed in a series of lawsuits contesting the constitutionality of referred permission, as it would, according to the arguments presented, result in a breach of the constitutional intimacy and privacy rights of individuals, among other things.
In February 2016, however, the Brazilian Supreme Court declared, under a majority of nine votes in favour and two votes against, the constitutionality of the authorisation for the Federal Revenue to access taxpayers' financial information under the Bank Secrecy Law. The Brazilian Supreme Court interpreted that the referred-to laws determined the sharing of information by the Central Bank and the Federal Revenue, but maintained secrecy obligations by both parties, which should not be considered a breach of individuals' rights.
Even in situations in which a financial institution is authorised to breach confidentiality, all measures required for the defence of the interests of individuals must be complied with. Thus, institutions must show sufficient duty of care in selecting the information to be disclosed and verifying whether the legal requirements for the disclosure have been met.
Funding of Brazilian banks is traditionally composed of cash deposits and time deposits. Other alternatives, such as the issuance of bonds in the international markets or other forms of cross-border funding, have also been broadly adopted, as interest rates in foreign markets have been historically lower than local interest rates.
Nevertheless, to foster the funding of local banks, and especially in an effort to reduce banking interest rates in Brazil (which are among the highest in the world), local lawmakers and regulators have created new instruments to provide new funding alternatives to local banks.
In January 2015, Federal Law No. 13,097 was enacted, providing for the issuance of covered bonds (LIGs) in Brazil. The Law is a conversion of Provisional Measure 656, issued by the federal government in October 2014. Widely used in sophisticated markets (such as in Europe and the United States), LIGs have finally been regulated, having been eagerly anticipated by the local market for a number of years, and are expected to reduce funding costs for institutions acting in the real estate market and, by extension, expand the availability of real estate credit at a lower cost to consumers.
The main feature related to the LIG is the fact that the pool of assets (mainly real estate financing credits) backing the issuance of the LIG will be treated as a segregated pool of assets, by which the underlying credit rights as well as the other assets and rights relating to them will be kept separately from the issuer's own assets. Hence, in cases of default, intervention, extrajudicial reorganisation or bankruptcy of the issuer, the non-commingling pool of assets will not be affected and will thus be earmarked solely for settlement of the debts owed under the corresponding LIG. If the pool of assets is not sufficient to settle all debts owed to the relevant investors, these will be entitled to enrol their outstanding credits in the bankruptcy estate ranking pari passu with the other unsecured creditors of the issuer.
Another funding alternative is the structured operations certificate (COE), which is similar to structured bonds negotiated in international markets. COEs are, pursuant to the applicable rules, certificates issued against an initial investment, and represent an indivisible group of rights and obligations with an income structure similar to derivative instruments.
In addition to the application of local indexes, COEs may have foreign indexes applied as references to their remuneration. Thus, financial institutions may issue COEs based on, inter alia, variations in foreign currencies, stock or commodities prices.
Although COEs were originally regulated in 2013, the rules relating to the public offerings of COEs were not enacted in their final form by the CVM until October 2015. As a result, we have seen an increase in different types of COE in the local market since then.
Control of banks and transfers of banking business
As a prerequisite to operating in Brazil, a financial institution must apply to the Central Bank for a prior authorisation. The documents that must be presented to the Central Bank include:
- a formal letter of application for authorisation of the intended transaction;
- a statement declaring the intent of the applicant to incorporate a financial institution;
- a statement of the non-existence of restrictions;
- a study of the financial and economic feasibility of the project, including a business plan;
- a definition of the corporate governance patterns;
- details of the controllers of the institution; and
- evidence of financial and economic capability.
The acquisition of a controlling or significant interest in an existing bank also requires prior approval from the Central Bank and entails, basically, the same procedures.
In addition to the ordinary documentation indicated above, the incorporation or acquisition of financial institutions by foreign entities or individuals must be submitted to the Presidency of the Republic for the issuance of an executive decree acknowledging the national interest underlying the proposed transaction. As a result, whenever a foreign entity intends to set up a financial institution in Brazil, or to acquire an equity interest in a domestic financial institution, the transaction may only be closed after the granting of a presidential decree.
The year in review
Local regulators have continued to push for modernisation of the applicable rules, especially to increase competition. Some of the most relevant regulations enacted in 2020 and early 2021 are summarised below.
i Instant payments
On 18 February 2020, the Brazilian Central Bank published Circular 3,985/20, which launched the instant payment system, 'Pix', by establishing the main concepts and guidelines for participation in this system.
Instant payment arrangement admits participation of payment service providers holding transactional accounts, as well as of government entities with the sole purpose of making or receiving payments.
In this sense, financial and payment institutions with more than 500,000 active client accounts that are authorised to operate by the Central Bank are mandatorily required to participate in the instant payment arrangement. These client accounts include demand and savings deposit accounts as well as prepaid payment accounts.
The publication of Circular 3,985/20 was the initial step in the implementation of the instant payments system. On 29 October 2020, the Central Bank issued Resolution BCB 30/20, through which new features were approved to expand Pix's usage: 'Pix Cobrança' and 'API Pix'. On the same day, the Central Bank edited Resolution BCB 31/20, which approved the Pix Penalties Manual, and on 30 October 2020, the Central Bank released the first version of the Pix Dispute Resolution Manual.
The new features were introduced soon after Pix became operational on 16 November 2020.
With Pix Cobrança, sellers can issue QR codes for immediate payments (i.e., when payment must be made at the time of purchase), at points of sale or e-commerce, for example, or for payments due on future dates (with the possibility of handling interest, fines, other accruals, discounts and other rebates). Once the Pix Cobrança payment is initiated, it is processed as a standard Pix transaction. Pix participants may opt in or out of using Pix Cobrança.
The second new feature, also introduced by Central Bank Resolution BCB 30/20, is API Pix. Financial and payment institutions that wish to provide the integration service to payees must do so through API Pix. The goal of standardisation is to create more ease for businesses and more efficiency for software houses to promote the integration of Pix into their systems. API Pix includes features for creating and managing collections, settlement verification, reconciliation and return process support.
On 26 March 2020, the CMN issued Resolution 4,792/20, which amends CMN Resolution 4,656/18 provisions that provide for direct credit companies (SCDs) and inter-personal lending companies (SEPs), which are the types of fintech companies authorised to operate by the Central Bank. The amendments are mainly aimed at fostering the role of fintech companies in the face of the current crisis arising from covid-19.
Among the main modifications introduced by Resolution 4,656/18, the following are notable: (1) the authorisation for SCDs to issue credit cards; (2) the possibility of financing the operations of SCDs with resources originating from onlending from the Brazilian Development Bank; (3) the assignment of portfolios to other types of investment funds (as alternatives to credit rights investment funds); and (4) the authorisation for the control of SCDs and SEPs to be exercised in an isolated manner by investment funds (among them, private equity funds, which were specifically mentioned by the Central Bank).
The change introduced by Resolution 4,792/20 is an important measure to encourage new entrants to the SFN, since it allows investment vehicles such as private equity and venture capital funds to control these institutions (something unprecedented for financial institutions), and may bring with it best practices from successful international experiences of other investments in the fintech sector.
iii Open Banking Regulation
At a press conference held on 4 May 2020, governors and representatives of the Central Bank released the final Open Banking Regulation, published in a joint resolution with the CMN.
Two features on user consent for data sharing are worth noting: (1) user consent must have been obtained after the joint resolution came into force (i.e., the participating institutions will not be allowed to use consent previously obtained from customers for other purposes (which is in keeping with the fact that specific consent is at the heart of open banking)); and (2) participating institutions (data senders or account providers) may propose to customers the withdrawal of a consent upon reasonable suspicion of fraud.
Further, a legal provision that was added to the final text compels participating institutions to provide technical support service channels in terms of data request matters. These service channels, provided by the participating institutions, must also be listed on the open banking directory, which will be available to users.
Another aspect worthy of note relates to reimbursement of expenses among participants. Under the wording of the joint resolution, reimbursement may also occur in relation to data on access channels or product/service channels (which had initially been prohibited under the Public Notice). The number of monthly requests that particpating institutions may make prior to incurring expenses has also been updated. Participating institutions may make the following requests free of charge: (1) two requests per month, for customer reference data; and (2) 120 requests per month, for customer transactional data. Any additional requests may be required to be reimbursed to the data holder by the data recipient.
Later in 2020, the Central Bank released important measures as part of the process of implementing and regulating the open banking system. The first of these related to the launch of Public Inquiry Notice 77/2020 on 9 July 2020 (ECP 77/2020), through which the Central Bank released a draft normative act proposing several changes in the rules applicable to payment institutions, currently set forth in Circular 3,885/18, with emphasis on the regulation of payment transaction initiators.
The proposal presented in ECP 77/2020 is to create a new type of payment institution, to be called a 'payment transaction initiator', which may offer services only after being authorised to operate by the Central Bank. Commercial banks, savings banks, finance companies and cooperatives would be exempt from the need to obtain the prior authorisation from the regulator, in line with similar rules applicable to other types of payment institutions.
On 19 October 2020, the Central Bank published Resolution BCB No. 32, which establishes the technical requirements and operational procedures for the implementation of open banking in Brazil, including the participation, form and term requirements for registration of institutions. The Resolution took effect on the date of its publication and must be complied with by institutions participating in open banking, in both mandatory and voluntary modes.
iv Regulatory sandbox
The CVM published Normative Instruction 626 on 15 May 2020 (ICVM 626/2020), which regulates the establishment and operation of a regulatory sandbox in the capital markets. This rule is the result of SDM Public Hearing No. 05/2019, which was open for public comment between 28 August and 12 October 2019, as well as the joint announcement by the CVM, the Superintendency of Private Insurance and the Central Bank released in June 2019, in which these three authorities announced their intention to implement a regulatory sandbox regime in the financial, insurance and capital markets.
Regulatory sandbox programmes allow for the granting of temporary authorisations to test innovative business models that would not, in principle, be viable in the traditional regulatory environment. This testing model stimulates entrepreneurship, enabling innovation in regulated markets, but without neglecting the protection of the market, and especially of investors and public savings. Companies interested in participating in the CVM's regulatory sandbox programme must go through a selection process, which will be conducted by the CVM, according to the provisions of ICVM 626/2020. This model adopted by the CVM is similar to models already in use in other countries, including the UK and Singapore.
As for the eligibility criteria, the main criterion is that it involves an innovative business model. This innovation can be demonstrated by the use of an innovative technology, the innovative use of an existing technology or even by being a product or service that is not offered in the securities market. ICVM 626/2020 also determines that the innovative business model has the potential to promote efficiency gains, cost reduction or increase the general public's access to products and services in the securities market.
Following the publication of ICVM 626/1020, on 3 November 2020 the CVM issued a notice through which it published the timetable for the selective process for the admission of participants. Therefore, the sandbox programme has been commenced by the CVM.
On 15 December 2020, the Central Bank approved the rules for the first cycle of the sandbox, through BCB Resolution 50/20 of 16 December 2020. This is scheduled to begin in May 2021.
v Currency exchange system
On 10 February 2021, the House of Representatives approved Legislative Bill No. 5,387 of 2019, which regulates the Brazilian exchange market, Brazilian capital abroad, foreign capital in Brazil, and disclosure and reporting requirements to the Central Bank. This legislative bill, which aims to institute a new legal framework for the Brazilian exchange market, was first presented on 7 October 2019 by the Executive Branch and was discussed at the House of Representatives under an urgent process on 8 December 2020. After voting on the Extraordinary Deliberative Plenary Session of the House of Representatives, the legislative bill will now be reviewed and voted on by the Brazilian Federal Senate.
The currency exchange system reform bill is part of the Central Bank's 'Agenda BC#' and aims to create a more efficient and dynamic environment by modernising, simplifying and reducing the legal uncertainties that are associated with current exchange legislation, which relies on an old and bureaucratic body of laws.
It is worth highlighting the following in this new proposed legislation:
- the delegation of authority for the Central Bank to define which categories of persons will be authorised to hold accounts in foreign currency in Brazil, which has been long awaited by many industry players;
- the authorisation for Brazilian banking institutions to send payment orders in Brazilian currency (reais) from or to offshore locations;
- the authorisation for Brazilian banking institutions to make investments abroad using funds raised in Brazil; and
- the possibility of receiving payment orders from third parties abroad by transacting with accounts held by foreign banks in Brazil.
The currency exchange system reform bill aims to strengthen and modernise the national financial system by allowing the use of new tools and reducing red tape, which will undoubtedly foster economic activity and the national financial market. The Federal Senate is now to review this matter and, if approved, the legislative bill will be sent over to the President for sanctioning or vetoing.
Outlook and conclusions
The new regulations are expected to bring relevant changes in the Brazilian financial system in the short term, attracting new investment in Brazil by:
- reducing bureaucracy, therefore making the banking industry more efficient and competitive;
- changing the way financial products are offered in the country;
- fostering technological developments and modernisation; and
- bringing the Brazilian banking system in line with the most developed banking systems in the world.
Bearing in mind all of the updates implemented in 2020 and the general economic scenario, it is likely that local authorities will remain active, and further improvements and innovations may be expected. It is clear that new technology and its adoption by the local market will continue to be one of the main focuses of discussion in the coming years.
1 Tiago A D Themudo Lessa is a partner, Rafael José Lopes Gaspar and Gustavo Ferrari Chauffaille are associates and Vinicius Gonzaga is a legal assistant at Pinheiro Neto Advogados.
2 In 2019, Brazil had the ninth-largest economy in the world by gross domestic product according to data provided by the World Bank on its website (https://data.worldbank.org/data-catalog/GDP-ranking-table).
3 Federal Law No. 4,595 of 31 December 1964.
4 Government-owned and private financial institutions form the National Financial System. Private financial institutions include commercial banks, investment banks, universal banks, exchange banks, credit, financing and investment companies, securities dealerships, brokerage firms, credit unions and leasing companies.
5 If a bank opts to also have an investment banking department, it will be subject to CVM regulatory authority with respect to its investment banking activities.
6 Law No. 6,385 of 7 December 1976.
7 Law No. 6,404 of 15 December 1976.
8 Law No. 6,024 of 13 March 1974.
9 Complementary Law No. 105.