Investment Funds and Structured Operations Newsletter – February 2024

The Investment Funds and Structured Operations Newsletter provides information on the main administrative acts, rules, and legal texts on the regulation of investment funds, asset management, and structured operations.

This material is for informative purposes only, and should not be used for decision-making.

Specific legal advice can be provided by our legal team.

The English version of the Investment Funds and Structured Operations Newsletter presents a summary of the Portuguese version, in which we highlight the news most relevant to our international clients. If you want to access a specific article that was not translated into the English version, please contact us. 

HIGHLIGHTS

CVM extends deadlines for adapting to the new fund regulation

On March 06, 2024, the Collegiate Board of the Brazilian Securities and Exchange Commission (“CVM“) approved CVM Resolution No. 200, which extends the deadlines for funds to adapt to CVM Resolution No. 175, of December 23, 2022 (“CVM Resolution 175“).

The extension was granted following requests from associations representing agents in the investment fund industry, given the transactional challenges relating to the tax reform that has affected funds, and the complexity of the new requirements introduced by CVM Resolution 175.

The new deadlines have been established as follows:

• May 30, 2025: new deadline for adjusting the stock of funds in operation when the resolution was published.
• November 29, 2024: New deadline for adjusting the stock of credit rights investment funds (“FIDC”) in operation when the resolution was published.
• November 01, 2024: New date for the entry into force of paragraph 1 of article 140 of CVM Resolution 175.
• October 01, 2024: New date for the entry into force of paragraphs 2 and 4 of article 140 of CVM Resolution 175.

The CVM also partially amended Annex III of CVM Resolution 175, which provides for Real Estate Investment Funds (“FII“). In this regard, changes introduced by Law No. 8,668 of June 25, 1993 were incorporated, which now allow FIIs and Investment Fund in Agroindustrial Productive Chains (“FIAGRO“) to use assets as collateral for their portfolios’ transactions, as well as to establish security interest on properties in the portfolio.

For more information, access the CVM article and the CVM Resolution 200.

IOSCO initiates discussions on fund leverage and the impact of finfluencers

The International Organization of Securities Commissions (“IOSCO“), which represents capital market regulators and self-regulators around the world, has included in its list of priorities for 2024 the review of recommendations for fund leverage alongside the Financial Stability Board (“FSB“), an organization that aims to coordinate regulatory bodies in order to implement regulatory and oversight policies regarding the financial sector.

This discussion was triggered by IOSCO and FSB’s recommendation for the use of price-based liquidity management tools, published in December 2023, highlighting robust fund leverage tools and dynamics.

In addition to fund leverage, IOSCO’s 2023 and 2024 action plan also involves investor protection in direct sales of financial products, as well as the following related topics:

• The development and implementation of new international standards related to ESG (social, environmental and governance) practices; and
• Financial market innovations, especially regarding crypto assets and decentralized finance, through the development of a methodology that will assess the degree to which markets are adapting to artificial intelligence and asset tokenization.

For more information, access the ANBIMA article.

CVM’s technical department releases opinion on the application of article 42 of Law No. 14,754 to Real Estate Investment Funds

On February 22, 2023, the CVM’s Superintendence of Securitization and Agribusiness (“SSE”) published CVM/SSE Circular Letter 1/2024, clarifying the application of article 42 of Law No. 14,754, of December 12, 2023, to FIIs, which partially amended Law No. 8,668, including the possibility of FIIs constituting security interest or encumbrance on real estate for the exclusive purpose of securing obligations assumed by the funds or their quotaholders.

The circular letter highlights that the article’s enforceable provisions remain restricted until a specific regulation to amend the existing regulations is published, considering the CVM’s authority to regulate FIIs, in accordance with article 4 of Law No. 8,668.

The SSE stressed that, despite allowing co-obligation for restricted classes, the regulations in Normative Annex III must prevail, thus precluding the use of article 42 until the CVM publishes a specific regulation, following a public hearing, to amend the current regulations. The technical department also emphasized that the CVM must regulate article 42 of Law No. 14,754 before FIIs can make use of its enforceable provisions.

For more information, access the CVM article and CVM/SSE Circular Letter 01/24.

DECISIONS

ANBIMA revokes fund manager’s accession to self-regulatory codes

In 2023, the Ethics Council of the Brazilian Financial and Capital Markets Association (“ANBIMA”) analyzed more than 18 applications for renewal of accession to self-regulatory codes.

On February 02, 2024, a certain investment fund manager’s accession was revoked due to a significant change in its corporate structure, which excluded it from the self-regulation provided for in the Code for Third Party Fund Management and the Code for the Ongoing Certification Program.

This revocation was due to the fact that ANBIMA’s self-regulation requires that any changes to a company’s registration be informed and submitted to ANBIMA’s own assessment, which did not occur in this specific case.

For more information, access the ANBIMA article and the Rules and Procedures for Association or Accession to ANBIMA’s Codes.