A NEW REGULATION FOR MARKET INFRASTRUCTURE IN BRAZIL. Walter Stuber Walter Stuber Consultoria Jurídica São Paulo, Brazil. I.

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1 A NEW REGULATION FOR MARKET INFRASTRUCTURE IN BRAZIL I. Introduction Walter Stuber Walter Stuber Consultoria Jurídica São Paulo, Brazil The rendering of services related to the infrastructure of the Brazilian securities market has been recently regulated by a set of Instructions issued by the Brazilian Securities and Exchange Commission (Comissão de Valores Mobiliários CVM), dated December 20, 2013, as follows: (i) CVM Instruction No. 541 deals with the provision of centralized deposit of securities; (ii) CVM Instruction No. 542 rules on the provision of securities custody services; (iii) CVM Instruction No. 543 is about the securities bookkeeping services and the issuance of securities certificates; and (iv) CVM Instruction No. 544 amends CVM Instruction No. 461, of October 23, 2007, which contains the securities market regulation and provides on the formation, organization, operation and dissolution of stock exchanges, futures and commodities exchanges, organized markets and non-organized markets. The new rules ensure that the securities traded in the Brazilian market and their respective ballasts in fact exist, that they are available for trading and that, once acquired, they belong to the investor that have purchased such securities. This model is based on a chain of obligations and responsibilities involving the bookkeepers (escrituradores), the custodians (custodiantes) and central depositories (depositários centrais). The bookkeepers act as keepers of the records on the issuance of book-entry assets. The custodians are responsible for the safekeeping of assets physically issued or are holders of positions of custody of clients in central depositories. The central depositories are essential for the trading of the assets in the organized markets, concentrating all the acts corresponding to the assets deposited therein. Basically the obligations and responsibilities among these different players are divided as follows: (a) certain securities issued either in book-entry form or physically are guarded by an authorized custodian or registered in a bookkeeper; (b) the trust property of this asset (the securities) is passed to the central depository that becomes its holder before the custodian or the bookkeeper, and this is the procedure to immobilize the asset; (c) this procedure also allows that the same asset be registered in the internal records of the central depository, in which the investor is identified as the owner of such asset; (d) with the trading of the asset, its ownership is transferred to the new investor in the records of the central depository; and (e) the investor is always represented by a custodian before the central depository. In this case, custody means the provision of service by the custodian to the investor. II. Central Depository The central depository must be a legal entity duly authorized by CVM. Any legal entity incorporated under the form of joint-stock company (sociedade por ações) or a partnership (associação), that proves to have financial, technical and operational conditions, as well as internal controls and segregation of activities suitable and 1

2 sufficient to meet the obligations established in CVM Instr. 541/2013, may apply for this authorization. The centralized deposit service of securities comprises the following activities: (i) the guard of the securities by the central depository; (ii) the control of ownership of the securities in the deposit accounts maintained on behalf of the investors; (iii) imposing restrictions on the practice of acts of disposal of securities by the ultimate investor or by any third party outside the environment of the central depository; and (iv) the treatment of the instructions for handling and the incidental events on the deposited securities, with the corresponding records on the deposit accounts. The securities deposited in centralized deposit accounts are represented and moved around only in the form of book-entry records made in these accounts. The term investor means any individual or legal entity, any investment fund, any investment club or any non-resident investor, in the name of who/whom the transactions with securities are made and that, in the capacity of client of the custodian, maintains an indirect relationship with the central depository. CVM Instr. 541/2013 does not apply to positions held in the derivatives market outside the environment of the central depository. It applies, however, to the establishment of liens and encumbrances on positions held in derivative contracts (contratos derivativos) of any kind, provided that the central depository is also authorized to provide registration services of such contracts, in the form of Paragraph 4 of article 2 of Law No. 6385, of December 7, 1976 (the Brazilian Securities Act ), and be able to ensure its existence. It also applies to the financial bills (letras financeiras) and other instruments that in case of public distribution are subject to the jurisdiction of CVM. Paragraph 4 of article 2 of Law 6385/1976 establishes that it is a condition of validity of all derivatives agreements signed as of July 27, 2011 (the date of effectiveness of Provisional Measure No. 539 of July 26, 2011, which was converted into Law No of December 8, 2011), the registry in clearing houses or service providers of clearing, settlement and registration duly authorized by the Central Bank of Brazil (Banco Central do Brasil Bacen) and CVM. This provision was inserted into Law 6385/1976 by article 1 of Law 12543/2011. Provisional Measure 539/2011 came into force on the date of its publication in the Official Gazette of the Union (Diário Oficial da União DOU). The term derivatives agreements in this context comprises not only futures, option and other derivatives agreements whose underlying assets are securities but also other derivatives agreements regardless of the respective underlying assets. The classification of the derivatives agreements is contemplated in items VII and VIII of the preamble of article 2 of Law 6385/1976, which lists all the securities that are regulated by CVM. CVM Instr. 541/2013 regulates the process of constitution of guarantees on the securities which are object of centralized guard, pursuant to article 26 of Law No , of May 15, 2013, and also refers to article 63-A of Law No , of August 2, Article 26 of Law 12810/2013 and article 63-A of Law 10931/2004 (which was included by Law 12543/2011) read as follows: 2

3 Art. 26. The provisions of art. 63-A of Law 10931, of August 2, 2004, apply to the establishment of any liens and encumbrances on financial assets and securities which are object of centralized deposit, regardless of the nature of the related legal business. Art. 63-A. The constitution of liens and encumbrances on financial assets and securities in transactions carried out within the framework of the Brazilian securities market or the Brazilian payment system, individually or in character of universality, will be held, including for the purposes of becoming of public knowledge and effectiveness vis-à-vis third parties, solely upon the record of the relevant instrument in the entities expressly authorized for this purpose by the Central Bank of Brazil and the Brazilian Securities and Exchange Commission in their respective fields of competence. Sole Paragraph. The regulation shall establish the forms and conditions of registration of the preamble, including with regard to access to information. Article 26 of Law 12810/2013 creates the possibility of collateral security on the assets from records made in the environment in which the assets are deposited. This measure facilitates the process of constitution of guarantees on securities and brings more security to a series of financial transactions. Article 35 of the CVM Instr. 541/2013 determines that the registration of liens and encumbrances over securities deposited as a result of judicial constriction, collateral security or settlement proceedings in clearing houses, or service providers of clearing and settlement, must be effected in accordance with the applicable legislation, by means of registry in the corresponding deposit accounts. The central depository must provide appropriate systems and adopt all procedures necessary to ensure the regularity of the constitution of the liens and encumbrances, including with the corresponding notices to issuers and bookkeepers, as the case may be. This system shall enable the identification of records of liens, encumbrances or other kinds of guarantees constituted on the deposited securities and adopt procedures aimed to: (i) ensure the unity and continuity of records on the securities; (ii) generate the information necessary for the exercise of the right of sequel by the guaranteed lenders; and (iii) controlling access to information contained in records of liens and encumbrances constituted within the entity, subject to the provisions of the applicable law, allowing the issuance of a certificate on behalf of any interested party, in a form to be approved by CVM. To regulate these registration services the central depository shall expressly provide on the following topics: (i) the form of constitution, rectification and cancellation of liens, encumbrances or other kinds of guarantees, including on a set or universality of securities; (ii) the responsibilities, rights and obligations of those involved in acts of registration of liens, encumbrances or other kind of guarantee; (iii) the rights, obligations and liability limits of the central depository on the achievement of the records; (iv) the treatment given to the income securities object of liens, encumbrances or other kind of guarantee; (v) the situations and forms of movement of the securities object of liens, encumbrances or other kind of guarantee; (vi) the treatment applicable to prepayment of the securities object of liens, encumbrances or other kind of guarantee; and (vii) the scheme and the form of provision of information about registered operations, including with regard to the information to be given and the issuance of certificates. 3

4 III. Custodian The following legal entities may apply for the authorization to provide securities custody services: commercial, multiservice or investment banks, saving banks, securities brokerage house companies, securities dealerships, and service provider entities of clearing and settlement and centralized deposit of securities. The custodian must: (i) establish and maintain operational and technological capacity for the performance of its activities, with a view to the satisfactory provision of custody services, in particular with regard to quality assurance and confidentiality of information; and (ii) establish and maintain procedures and computerized systems safe and appropriate for the exercise of its activities, in order to allow registry, processing and control of positions and custody accounts. These processes and systems must be compatible with the size, characteristics and the volume of operations of the custodian's responsibility, as well as with the nature and kind of securities kept under custody. The custodian must demonstrate economic and financial capacity compatible with the operations to be carried out. To provide services of physical custody of securities, the custodian must maintain structure for the guard, with restricted access, and security mechanisms that ensure the integrity of the securities. Custody services can be provided: (i) for investors, when the custodian is hired to the guard of the securities owned by the investors; and (ii) for book-entry securities issuers. Other institutions acting as holders or lenders of securities, which are responsible for the securities distribution in the market, are treated as issuers for this purpose. In the case of the investors, the services include: (a) the conservation, control and reconciliation of securities positions in custody accounts maintained on behalf of the investor; (b) the treatment of movement instructions received from the investors or authorized persons (i.e. people legitimized by contract or power of attorney); and (c) the treatment of the events on the guarded securities. In the case of the issuers, the services include: (a) the physical custody of book-entry securities; and (b) carrying out the procedures and records necessary for the implementation and application of the centralized deposit scheme to the securities. The custodian that provides services to investors can have links with central depositories for maintenance of investor assets in centralized deposit accounts, in the form of CVM Instr. 541/2013. In this case, the positions held in custody accounts for the securities object of centralized deposit must match the accounts kept by the central depository. CVM Instr. 542/2013 applies to the financial bills and other instruments that in case of public distribution are subject to the jurisdiction of CVM but it does not apply to positions held in the derivatives market. 4

5 IV. Bookkeepers All financial institutions may apply for the authorization to securities bookkeeping services. The bookkeeper must have processes and systems safe and suitable for the performance of the activities that it intends to carry out in order to allow the execution of its duties and obligations concerning these activities. These processes and systems must be compatible with the size, characteristics and the volume of operations of the bookkeeper s responsibility, as well as with the nature and kind of securities. The bookkeeper must demonstrate economic and financial capacity compatible with the operations to be carried out and have conditions to fulfill the following requirements and duties: (i) have sufficient human resources technically capable of performing the processes and operate the systems involved in the delivery of its services; (ii) keep an updated list of professionals with access to their systems, monitoring and registering the accesses made; (iii) ensure the quality of its processes and computerized systems, measuring and keeping track of errors, incidents and disruptions in its operations; (iv) keep updated operating manuals, the general description of the systems to be adopted in the provision of services, the flowchart of routines, documentation of programs, quality controls and the physical and logical safety regulations; (v) have suitable business continuity plan to ensure the continuity of the provision of its services; and (vi) provide and maintain adequate channels for satisfactory attendance of holders of book-entry securities about any information concerning the responsibilities inherent in the provision of its services. The bookkeeping services comprise: (i) the opening and maintenance of computerized systems of registry books, as provided for by the legislation in force; (ii) the registration of information relating to the ownership of the securities, as well as real rights of fruition or guaranty and other liens on the securities; (iii) the treatment of the movement instructions received from the holder of securities or authorized persons (i.e. people legitimized by contract or power of attorney); (iv) carrying out the procedures and records necessary for the implementation and application of the centralized deposit scheme to the securities, if applicable; and (v) the treatment of the incidental events on the securities. Furthermore, the bookkeeping services can be performed with or without the issuance of securities certificates. The certificate issuer agent (agente emissor de certificados) activity is private of institutions duly authorized to act as bookkeepers and comprises the following services: (i) the issuance, amendment, replacement and cancellation of certificates representing securities received on deposit; and (ii) the control and the confirmation of the origin and legitimacy of the securities certificates. The bookkeeper that provides services of issuance of securities certificates must require the specific approval of the CVM prior to each issue, in accordance with the regulations in force. When acting as certificate issuer agent, the bookkeeper has the following obligations: (i) cancellation and amendment of the certificates; (ii) controlling the securities represented by the issued certificates, returning them to the holders of the securities, whenever requested; and (iii) perform the acts for replacement of the certificates in the shortest possible term. This period may not exceed 30 days from the date of receipt of the relevant documents. 5

6 Likewise it happens with the custodian, in the case of the bookkeeper, CVM Instr. 543/2013 does not apply to positions held in the derivatives market. It applies to the financial bills and other instruments that in case of public distribution are subject to the jurisdiction of CVM. V. Registry of Securities and Transactions CVM Instr. 544/2013 addresses the registry activities of the securities and the securities transactions. This registry is a common practice in Brazil and has been valued in the international debate as one of the mechanisms capable to generate information about the assets issued and about the transactions carried out by financial institutions. This makes that the legal entities responsible for the registry of the securities and the securities transactions (entidades registradoras) be considered important market infrastructure entities. It is important to note that the registry of the securities is different from and cannot be confused with the centralized deposit of the securities. The centralized deposit is intended to ensure that a particular asset is immobilized and that this asset is effectively held by an investor. The registry, which can be of the asset itself or of the transactions carried out with such asset, have eminently informational functions, generating databases which serve as important support for the activities of the regulators and to administrate the exposure of the financial institutions. By means of CVM Instr. 544/2013, which brought new provisions to CVM Instr. 461/2007, CVM makes it clear that the registry obligations that have appeared in some recent laws (such as Law 12543/2011, which provides that the registration of derivatives is a condition for its validity) are satisfied with the registry of the transaction or of the asset in a system of organized over-the-counter (OTC) market, which is a figure already consolidated in the Brazilian system and regulated by CVM Instr. 461/2007. These new provisions are the sole paragraph of article 1, the sole paragraph of article 92 and paragraphs 4 th and 5 th of article 110 of CVM Instr. 461/2007, as follows: Art. 1. ( ) Sole Paragraph. The present Instruction further comprises, in the form of art. 92, the rendering of services referred to in paragraph 4 th of art. 2 of Law No. 6385, of December 7, 1976, and in art. 28 of Law No , of May 15, 2013, regarding the registry of securities, which will be exclusively made by the administrator entities of the organized over-the-counter market. Article 28 of Law 12810/2013 simply state that Bacen and CVM, within their respective competences, shall: (i) authorize and supervise the exercise of the activity of financial assets and registration of securities; and (ii) lay down the conditions for the exercise of the activity referred to in item (i). The sole paragraph of article 28 clarifies that the registration of securities and financial assets comprises bookkeeping, storage and advertising information pertaining to financial transactions, with due observance of the legal secrecy. 6

7 Art. 92. ( ) Sole Paragraph. The authorization for the organized over-the-counter market to operate through the registry of transactions previously carried out, in the form of item III of the preamble, or to render other securities registry services, in from of item V of art. 13, with due observance to the limits established therein, is equivalent to the authorization to render the services mentioned in paragraph 4 th of art. 2 of Law No. 6385, of 1976, and in art. 28 of Law No , of Art ( ) Paragraph 4 th. In cases where the activity is subject to the principles and recommendations formulated by the Payment and Settlement Systems Committee (Comitê sobre Sistemas de Pagamentos e Liquidações - CPSS) and the International Organization of Securities Commissions (OICV-IOSCO), the administrator entity must present document attesting compliance with those recommendations and principles. Paragraph 5 th. The Supervision of Market Relations and Intermediaries (Superintendência de Relações como o Mercado e Intermediários - SMI) will define the shape and the minimum content of the document referred to in the previous paragraph, as well as the periodicity for updating after obtaining the authorization. Pursuant to item III of article 92 of CVM Instr. 461/2007, the OTC market may trade through the registration of transactions previously carried out. At the moment, the only entities of the system of the organized OTC market authorized by Bacen and CVM to register securities and securities transactions (the administrator entities) are CETIP OTC Clearing House (CETIP S.A. - Balcão Organizado de Ativos e Derivativos - CETIP), which is the leading clearing house and central securities depository and derivatives registrar for operations carried out in the OTC market, and the Brazilian Chamber of Settlement and Custody (Câmara Brasileira de Liquidação e Custódia - CBLC) of the Brazilian Securities, Commodities and Futures Exchange (BM&FBOVESPA S.A. Bolsa de Valores, Mercadorias e Futuros - BM&FBovespa). VI. Effectiveness The new rules on centralized deposit, custody and bookkeeping will come into full force and effect on July 1 st, 2014 and the agents already authorized to operate in any such capacity will have a period of 18 months counted as of such date (July 1 st, 2014) to adapt themselves to the provisions of CVM Instr. 541/2013, 542/2013 and 543/2013. The rule on registry services (CVM Instr. 544/2013) is immediately effective because it does not require any type of adaptation. VII. Conclusion With these standards, CVM modernizes and improves the regime applied to important activities of market infrastructure related to the existence and possession of financial assets publicly offered or traded on organized markets. The main objective of the new 7

8 standards is to ensure conditions for the secure development of the Brazilian market, in line with the principles and standards discussed worldwide as suitable to prevent new financial crises. CVM only regulated the securities assets. The financial and banking assets will be regulated by Bacen in due course. 8