The Presidency of the Republic sanctioned, on Friday, September 20, Provisional Measure no. 881, known as Provisional Measure of Economic Freedom ("MP"), converting it into Law no. 13,874. The MP had been issued in favor of the development of the economic activity and instituted, among others, specific provisions related to the operation of investment funds in Brazil, which underwent relevant changes until the conversion into law.
With the conversion of the MP, the Law consecrated the condominium nature of investment funds, but ruled out the application of the general condominium rules. Thus, the funds became a special class of condominium.
The registration of fund regulations with registry offices is not required. Registration with the Brazilian Securities and Exchange Commission (CVM) will be a sufficient guarantee of publicity and enforceability of effects before third parties. Such measure will significantly reduce registration costs.
Among the most talked about measures is the possibility that the regulations will limit the liabilities of shareholders to the value of their quotas, so that they cannot be called upon to contribute additional resources even in the event of negative net worth.
In the same sense, the liability of the service providers of the investment funds in relation to the fund and among themselves may be limited, each one being liable exclusively for their acts performed with malice or bad faith, without joint liability among them. Until then, the trustee could respond jointly and severally with other service providers, such as the fund manager and the custodian. In this regard, the CVM has already clarified that the exemption of joint liability among service providers can already be adopted by FIP, FIDC and FII.
In view of such limitation of liability, investment funds become subject to the rules of insolvency in case of insufficiency of equity to support their debts.
Another relevant innovation is the possibility of a same fund constituting segregated assets for different classes of shares. In other words, shareholders of a given class may be subject exclusively to the risks (and gains) of certain assets of the fund.
Some of the new rules still depend on regulation by the CVM, which will submit to a public hearing the necessary regulatory changes and clarify operational aspects.
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The team of Barcellos Tucunduva Advogados law firm remains at your disposal to clarify any doubts related to this matter.
