Regulation of International Transfer and Payment Services and Authorization for Payment Institutions to Operate in the Foreign Exchange Market

The National Monetary Council (“CMN“) and the Brazilian Central Bank (“BCB“) issued, on September 9, 2021, CMN Resolution 4,942 (“CMN Resolution 4,942”) and BCB Resolution 137 (“BCB Resolution 137”), which establish improvements to provisions related to the foreign exchange market, considering the technological innovations and the new business models relating to international transfer and payment services.

According to such regulation, the payment institutions (“PIs”) authorized to operate by BCB will be able to, from September 1, 2022 onwards, request from BCB the authorization to operate in the foreign exchange market, acting exclusively by electronic means, to carry out foreign exchange transactions with clients for immediate settlement in amounts of up to USD100,000.00.

The abovementioned authorization will also allow the PIs to carry out foreign exchange transactions in the interbank market and arbitrage, in Brazil and outside the country, in order to ensure access to liquidity in foreign currency necessary for the rendering of the services.

Additionally, BCB Resolution 137 regulates the international transfer and payment service called “eFX”, which comprises:

1. acquisition of goods and services, in Brazil or outside the country, physically or via a digital payment solution offered by the eFX provider and integrated into an e-commerce platform;
2. one-way transfer of up to USD10.000,00;
3. transfer of up to USD10.000,00 from an account in Brazil to an account outside Brazil of the same ownership, provided that (a) the account in Brazil is a deposit account or a pre-payment account maintained at financial institutions and others institutions authorized to operate by the BCB or in payment institutions participating in the Brazilian Payment System (SPB) exclusively by virtue of its adhesion to Pix (the instant payment network powered by the BCB); and (b) the deposit or payment account that is situated outside Brazil must be maintained in an institution subject to effective prudential and conduct supervision, or by a member of a financial group subject to effective consolidated supervision; and
4. withdrawal in Brazil or outside the country.

The eFX modalities mentioned above may be rendered by institutions authorized to operate in the foreign exchange market and also by PIs authorized to operate by the BCB that act as electronic currency issuer, post-paid payment instrument issuer or acquirer.

Moreover, the PIs, regardless of whether they are authorized to operate by the BCB, that render services of electronic currency issuer, pos-paid payment instrument issuer or acquirer, may carry out the activities described in items (i) and (iv) above, with no limit of amount, provided that it enters into a partnership with an institution authorized to carry out transactions in the foreign exchange market.

In addition, the new regulation also provides, among others, that: (i) individuals or legal entities, resident, domiciled or with headquarters located outside Brazil may hold pre-paid payment accounts in Brazilian currency, in Brazil, maintained in an institution authorized to operate in the foreign exchange market, in accordance with the regulation, to carry out payments and receive funds in Brazil, limited to BRL 10,000.00 (ten thousand Brazilian reais) per transaction; (ii) Brazilian exporters may receive revenue from exports in a payment account in its name and maintained in an institution located outside Brazil; and (iii) non-banking institutions authorized to operate in the foreign exchange market – securities brokers, securities arrangers, foreign exchange brokers and PIs – may carry out international payments and transfers using accounts in its name in foreign currency held abroad, as has already been permitted to the banks.

CMN Resolution 4,942 and BCB Resolution 137 will come into effect on October 1, 2021, with exception to the rules relating to authorization of PIs to operate in the foreign exchange market, which will come into effect on September 1, 2022.

Demarest’s Banking and Finance team is available for any further clarification on this and other topics.