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                 PUBLICATIONS

August 2018

_the August │2018 edition of our newsletter has the following highlights:

Brazilian Securities and Exchange Comission launches a public hearing on a normative ruling that changes the procedures related to its sanctioning duties

Brazilian Commercial Registry Department issues a new normative ruling to standardize the requirements the State Boards of Trade may impose

On June 18th, 2018, the Brazilian Securities and Exchange Commission (“CVM“) launched a call notice for the Public Hearing SDM No. 02/2018 (“Call Notice“) to discuss the proposal of a new normative ruling to adapt CVM’s sanctioning duties to the provisions of Law No. 13,506, dated November 13th, 2017 (“Law 13,506“) and to consolidate, under a single normative instrument, sparse rules issued by CVM on the same subject. Law 13,506 has brought some changes to the administrative sanctioning process, expanding the set of regulatory instruments that can be applied by CVM in the performance of its monitoring and sanctioning duties over the agents that operate in the securities market.

Among the provisions foreseen in the draft of the normative ruling attached to the Call Notice, we highlight the following innovations:

(i) clearer criteria to justify the decision not to initiate an administrative sanctioning process in case of low relevance of the conduct, low expressiveness of the injury or the possibility of applying alternative penalties;

(ii) electronic communication and notification procedures as a rule;

(iii) maximum values for fine penalties for each group of administrative infractions, depending on the relevance of the infractions and on the limits established by Law 13,506;

(iv) CVM board shall comply with the principles of proportionality and reasonability in the determination of the penalty, as well as take into consideration the economic capacity of the defendant and the reasons that justify the imposition of such penalty;

(v) determination of certain aggravating and mitigating factors to be considered in the determination of the penalty, such as (v.1) recidivism, high loss caused to investors or minority shareholders, obtention or intention to obtain significant advantage, breach of fiduciary duties and concealment of evidence; (v.2) confession of the offense, defendant’s good faith and effective adoption of internal mechanisms and procedures for assuring integrity, auditing and encouragement of infractions reporting; and (v.3) a penalty drop of one third to two thirds if the financial damage to investors or minority shareholders is fully repaired until the final award in granted by the ordinary courts.

In addition to the new provisions described above, the draft of the normative ruling regulates the supervision agreement, introduced by Law 13,506, whose purpose is to terminate the penalty of defendants if they appoint and identify the others involved in the infraction, when applicable, and to obtain information and documents that prove the reported infraction has occurred.

Any suggestions and comments on the draft of the normative ruling under debate within the Public Hearing SDM No. 02/2018 may be sent in Portuguese until August 31st, 2018 to CVM’s Market Development Superintendent at the electronic address “audpublicaSDM0218@cvm.gov.br” or at “Rua Sete de Setembro, 111, 23º andar, Rio de Janeiro – RJ, CEP 20050-901”.

More information can be accessed in Portuguese at:

http://www.cvm.gov.br/audiencias_publicas/ap_sdm/2018/sdm0218.html

_Brazilian Commercial Registry Department issues a new normative ruling to standardize the requirements the State Boards of Trade may impose to the registration of certain corporate documents

On August 6th, 2018, Normative Ruling No. 48, dated as of August 3rd, 2018, issued by the Brazilian Commercial Registry Department (“IN DREI 48“), was published in the Federal Government Official Press listing the requirements that may be imposed in physical and digital proceedings related to the registration of corporate documents approving the incorporation, amendment, dissolution or liquidation of individual entrepreneurs, individual limited liability companies and limited liability companies.

The enforcement of IN DREI 48 shall forbid the rejection of filing and/or the imposition of requirements to the registration of corporate documents for reasons other than those specified in the aforementioned normative ruling. In addition, all of the errors contained in such corporate documents that are the subject of a filling request shall be verified and appointed in the first analysis thereof made by the Board of Trade, along with explanatory notes attached to the physical proceedings or made available on the respective Board of Trade website.

In case an error that constitutes grounds for the denial of a registration is identified but this error is not specified in IN DREI 48, the registration of the corporate document will be granted on a preliminary basis and the company’s records will contain a disclaimer stating there is an error under analysis. This error will then be analyzed by the Board’s Chairman, the Board’s board of directors or the Brazilian Commercial Registry Department, as the case may be, which should resolve the issue by: (i) agreeing with the error originally appointed, in which case the error must be corrected by the company; or (ii) disagreeing with this error, in which case the registry is definitely granted.

Regarding the filing of corporate documents related to limited liability companies, we highlight the following errors specified at IN DREI 48: (i) the lack of transcription of the amended, included and / or excluded clauses, specifying the modifications made, in case the articles of association are amended; (ii) uncomplete qualification of the assets contributed to the capital stock; (iii) the lack of authorization of the spouse to pay-up the capital stock with real estate assets; (iv) the lack of judicial authorization to pay-up the capital stock with assets owned by a partner that is a minor; and (v) the lack of notarization of signatures in case the signatory is unclear.

IN DREI 48 shall become effective as of September 20th, 2018. More information can be accessed in Portuguese at:

http://www.mdic.gov.br/index.php/micro-e-pequenas-empresa/drei/instrucoes-normativas-drei/2-uncategorised/3166-instrucoes-normativas-em-vigor-drei

MORE ARTICLES

CVM acquits defendants accused of fraud in transaction to acquire control of a publicly held company
Brazilian Securities and Exchange Commission (CVM) amends points of CVM Resolution No. 175
CVM proposes reform in the rules and procedures of shareholders' general meeting
CVM publishes Guidance Opinion on Soccer Corporations (SAF)
Brazilian Securities and Exchange Commission study discusses the exemption from mandatory fiscal council in small and medium-sized companies
Highlights of the proposal to amend the Brazilian Corporate Law