The theme of cryptoassets is gaining more and more relevance at the global scenario each passing day, with discussions regarding its complex regulation evolving and becoming more technical and detailed. Brazil is not an exception in this context, being considered as the top cryptocoin market in Latin America and seventh in the world, according to a study published in September by Chainanalysis, an American platform of blockchain analysis.
Currently, Brazil lacks a specific law providing about cryptoassets, which leads to doubts and legal uncertainty in the country. However, the Brazilian landscape was subject to recent developments in politics, legislation, and regulation scopes on the matter of the cryptoassets.
On the regulatory landscape, Brazilian Security and Exchange Commission (“CVM”) published on October 11 the Parecer de Orientação n. 40/2022 (“Parecer CVM”), a non-binding opinion titled “Cryptoassets and the Market of Securities”. It shall be noted that the entity has already previously stated that cryptoassets regarded as security tokens should be regulated by CVM, considering their nature as a security.
Among the main aspects of the Parecer CVM, there is a provision of a classification of tokens according to their function, such as: (i) payment token; (ii) utility token; or (iii) asset-based token. The security tokens, under CVM’s regulatory scope, will be inserted, primarily, in this last class, as well as tokenized assets, stablecoins and NFTs.
Furthermore, the Parecer CVM also made advancements in establishing the criteria that will define if a cryptoasset shall be considered as a security. Thus, will be deemed as securities the cryptoassets that: (i) digitally represent one of the types of securities provided by Law n. 6,385/1976, that established the securities market and created the CVM in Brazil, or general receivable certificates, provided by Law n. 14,430/2022; or (ii) can be considered as collective investment agreements, as provided by Article 2, IX of Law n. 6,385/1976.
In addition, Parecer CVM clarified that the general rules regarding securities and the parties regulated by CVM will be applicable to cryptoassets considered as securities and to their players, highlighting the need to comply with the full and fair disclosure doctrine, with applicability of the informational and transparency obligations that rule IPOs to those who wish to make a public offer of cryptoassets considered as securities.
At the political scenario, in the middle of the Brazilian presidential election contest, which is currently going to the second and final round, candidate Luís Inácio Lula (PT) stated in a recent interview about the topic that the Brazilian Central Bank should be responsible for regulating cryptocoins on the country, in compliance with international rules. On the other hand, Jair Bolsonaro, the current President and candidate for reelection, claimed, while joining a podcast in August, that this is an issue that should be addressed by its minister of Economy, Paulo Guedes.
On the legislative landscape, Bill n. 4,401/2021 of the Brazilian Federal Senate, a substitute to Bill n. 2,303/2015 of the Brazilian Chamber of Deputies, aiming to rule the cryptoassets market in Brazil, was approved in May 2022 by the Senate and shall now be voted by the Chamber of Deputies.
Bill n. 4,401/2021 would mitigate the current legislative vacuum regarding the matter in the country, creating concepts, definitions and guidelines that should be followed by the regulatory entities. However, the Bill do not indeed determine which entity would be responsible for regulating cryptoassets matter in Brazil, stating that this will be subject to a future act by the Executive Branch, which maintains the regulatory vacuum on the topic in the country.
Thus, several new developments are expected in a near future regarding cryptoassets in Brazil on the politics, legislative and regulatory landscapes.
Our team is available to provided further information, as well as to assist in any matter related to the crypto assets market in Brazil.
Gustavo Flausino Coelho – gustavo@bastilhocoelho.com.br
Fernando Naegele – fernando@bastilhocoelho.com.br