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 followed the agreed international time frame with 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 because 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.
In 2019, Complementary Law No. 281 was presented to the National Congress with the purpose of reformulating the insolvency regimes applicable to financial institutions and other regulated entities. This project is still pending analysis; however, in summary, it replaces the intervention and extrajudicial liquidation regimes with the stabilisation regime and the compulsory liquidation regime, respectively.
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.
Another fundraising alternative to financial institutions are financial bills. Financial bills are a type of fixed income investment and can be issued, according to Resolution No. 4,733 of 27 June 2019, by authorised financial institutions that have as their final objective the raising of long-term funds.
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 significant regulations enacted in 2021 and early 2022 are summarised below.
i Central Bank autonomy
On 24 February 2021, the president sanctioned Complementary Law No. 19/2019 (PLP), which grants autonomy to the Central Bank of Brazil.
Following the presidential sanction, the Central Bank became an autocracy independent of the Ministry of Economy and was awarded technical, operational, administrative and financial independence. The regulatory body continued to be headed by nine members, one of which is the president of the Central Bank, all nominated by the president of Brazil and approved by the Federal Senate. The president and directors of the Central Bank now have four-year terms, with the possibility of reappointment for one additional term. The term of office of the president of the Central Bank now begins on the first day of the third year of the president of Brazil's term, so that the terms will not overlap. Regarding the other directors, the substitution will occur in a staggered manner: (1) two directors begin their terms of office on 1 March of the first year of the president of Brazil's term of office; (2) two directors begin their terms of office on 1 January of the second year of the president of Brazil's term of office; (3) two directors begin their terms of office on 1 January of the third year of the president of Brazil's term of office; and (4) two directors begin their terms of office on 1 January of the fourth year of the president of Brazil's term of office. Before the approval of the PLP, there was no defined term of office.
Furthermore, to reduce the influence of the federal government over the regulatory authority, the president and directors of the Central Bank cannot be dismissed freely. They may have their mandates interrupted in the following situations: (1) at the request of the president or director; (2) in the case of illness that incapacitates the incumbent for the exercise of the position; (3) when he or she suffers a conviction, in a final and unappealable decision or rendered by a collegiate body, for administrative improbity or in a crime whose penalty leads to the prohibition of access to public positions; or (4) in the case of 'proven and recurrent insufficient performance for the achievement of the objectives of the Central Bank'. In the latter situation, the CMN must submit to the president of Brazil the proposal for dismissal, which will be subject to prior approval by an absolute majority of the Senate.
With the approval of the PLP, Brazil has joined the group of jurisdictions that have autonomous or independent central banks, such as the United States and the European Union, bringing the country closer to the best global financial practices.
ii Crypto-assets market
On 8 December 2021, the House of Representatives approved Bill No. 2,303 of 2015 (PL 2,303), which is expected to be the fundamental backbone for the local crypto-assets market. PL 2,303 has suffered several amendments since its inception in 2015, and an additional three bills on the same matter are attached to it. The text is now pending Federal Senate approval and presidential sanction. Additionally, on 22 February 2022, the Senate Economic Affairs Committee approved Bill No. 3,825 of 2019 (PL 3,825), which regulates the cryptocurrency market in Brazil by defining concepts, guidelines, measures to combat money laundering and other illicit practices and penalties applied to fraudulent or reckless management of crypto-active exchanges. If there is no appeal for a vote in the Plenary, PL 3,825 will proceed directly to a vote in the House of Representatives.
PL 2,303 establishes principles and guidelines to be observed in the provision of virtual asset services, seeking to bring greater legal certainty to the crypto-assets market. These principles and guidelines include free competition, good governance practices, information security, personal data protection, economic policies protection and consumer protection, as well as the prevention of money laundering and terrorist financing.
Under this Bill, the federal government will designate the authority responsible for the regulation and supervision of providers of virtual asset services, which include the exchange, transfer, custody and management of these assets (among other services). Prior authorisation will be required for entities to participate in these activities.
PL 2,303 defines a virtual asset as the digital representation of value that can be traded or transferred by electronic means and used to make payments or for investment purposes, excluding Brazilian national currency (real), foreign currencies, electronic currency already regulated by the Central Bank, and points and rewards in loyalty programmes, among other instruments related to benefits from products or services, as well as representations of assets regulated by other laws or regulations (such as securities).
PL 2,303 also brings some other changes to strengthen security in the crypto-assets market: (1) a new type of crime is specifically created to cover fraud using virtual assets; (2) virtual asset service providers are equated to financial institutions, particularly for the purposes of Law No. 7,492 of 1986, which provides for crimes against the SFN; and (3) virtual asset service providers are expressly added to the list of activities in Article 9 of Law No. 9,613 of 1998, which deals with money laundering and other financial crimes.
iii Currency exchange system
At the end of 2021, the president sanctioned Law No. 14,286 of 29 December 2021, which institutes a new legal framework for the Brazilian foreign exchange market to revamp, simplify and consolidate the existing legislation and the regulations applicable to both Brazilian capital investments abroad and foreign capital investments in Brazil.
The new Law consolidates several principles prevailing in the Brazilian foreign exchange market, but also innovates in some areas; for example:
- foreign exchange transactions may be held freely, without value limitation;
- foreign exchange transactions must be carried out through institutions authorised to operate in the market by the Central Bank;
- exchange rates are freely agreed upon; and
- Brazilian institutions and other entities authorised by the Central Bank will be authorised to allocate the funds they raise in Brazil to credit and financing transactions abroad; this is one of the most important changes in the legislation because, until the enactment of this Law, financial institutions had several restrictions on allocating funds abroad.
Under this new Law, the Central Bank has been vested with powers to establish different requirements for the creation and operation of authorised institutions or even to waive authorisation depending on certain aspects of the business model. The regulator also received powers to monitor the flow of Brazilian capital abroad and foreign capital in Brazil, including availability and remittance procedures, and to request the information necessary for the compilation of official macroeconomic statistics.
Additionally, the new Law provides, in practice, that transactions involving foreign exchange trading in the amount of up to US$500 carried out between individuals on an occasional and non-professional basis will not be subject to the provisions of the Law and may be carried out freely.
Another important feature of the Law was the adoption of measures to reinforce the convertibility of the Brazilian currency, including the following, which make it easier to use Brazilian currency abroad:
- a foreign bank may now open an account in Brazilian reais with a bank in Brazil and use it to make payments of interest to Brazilian citizens abroad;
- foreign central banks and non-resident institutions that provide clearance, settlement and custody services in the foreign market may open and maintain deposit or (custodial) accounts, or both, in Brazilian reais with the Central Bank; and
- accounts in Brazilian reais held by non-residents should now receive the same treatment as accounts in Brazilian reais held by Brazilian residents.
It is also worth mentioning that although the requirement regarding the obligation to perform foreign exchange transactions through an institution authorised to operate in the foreign exchange market is maintained, the limit of cash that international travellers can have when leaving or arriving in Brazil has been increased from 10,000 reais (approximately US$1,807) to 'US$10,000 or its equivalent in other currencies'.
The new Law will come into effect by the end of 2022, one year after its enactment. Until then, it is expected that the Central Bank will review and enact the regulatory rules to adjust the current rules to the new legal framework. Public consultations are expected between the Central Bank and the market in general to discuss the matter.
iv Flexibility for derivatives transactions
On 30 September 2021, the CMN issued a new regulation, Resolution No. 4,948, which became effective on 3 January 2022. Resolution 4,948/21 brings deep changes to the Brazilian foreign exchange regulatory framework, by revoking Resolution No. 3,312/05,10 among others, and permitting Brazilian companies and Brazilian financial institutions to carry out derivatives transactions abroad, in any form regularly practised in the international market. It is expected that new types of cross-border derivatives transactions will be implemented in Brazil, especially equity derivatives and credit derivatives, which have much more liquidity abroad.
Outlook and conclusions
The new regulations are expected to introduce significant changes to the Brazilian financial system in the short term, attracting new investment in Brazil by:
- reducing bureaucracy and simplifying the existing legislation and regulation, 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 2021 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 the modernisation of the Brazilian banking system and its adaptation aligned with the banking systems of countries with more developed structures will continue to be one of the main focuses of discussion in the coming years.
1 Tiago A D Themudo Lessa and Rafael José Lopes Gaspar are partners, Fábio Moretti de Góis is an associate and Vinicius Gonzaga is a legal assistant at Pinheiro Neto Advogados.
2 In 2020, Brazil had the 12th 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.
10 On 31 August 2005, the CMN issued Resolution No. 3,312, which permitted Brazilian private sector entities and Brazilian financial institutions to conclude – either with financial institutions or on exchanges abroad – derivative transactions for purposes of hedging exposure in interest rates, foreign currency parity and commodity prices. The fact that transactions had to be for hedging purposes and that the underlying assets list was quite restrictive limited the types of cross-border derivatives implemented in Brazil.