BRAZIL Law and Practice Contributed by: Fabio Cendão, Heitor Maia, Eduardo Faria and Gabriel Lobato, Faria, Cendão & Maia Advogados (FCM Law)
7. Tokenisation and Real-World Assets 7.1 Treatment In Brazil, tokenised assets and real-world assets (RWAs) are not regulated solely because of the tech- nology used, but mainly according to the economic and legal nature of the underlying asset. Tokenisation, by itself, does not change the legal regime applicable to the represented asset. Accordingly, if the token represents or confers rights over a security, credit, receivable, real estate, com- modity or other regulated asset, the rules correspond- ing to the traditional asset continue to apply. This may include rules on issuance, offering, distribution, custo- dy, registration, bookkeeping, transparency, suitability and investor protection. The main difference lies in the operational and tech- nological layer. When the asset is represented, trans- ferred or traded through blockchain, additional issues become relevant, including token governance, control of ownership, interoperability between on-chain and off-chain records, custody of private keys, traceability, prevention of fraud, secondary liquidity and responsi- bility of the agents involved in the structure.
Where tokens have the nature of securities or collec- tive investment contracts, the CVM tends to apply the capital markets regime. Where the activity involves intermediation, custody, trading or transfer of virtual assets by VASPs, the Central Bank regime may also apply. Brazil therefore adopts a functional approach: tokenised RWAs tend to be treated, to a large extent, as their traditional equivalents, but with additional requirements arising from the digital infrastructure used. Tokenisation projects must therefore reconcile the legal regime of the underlying asset with the rules applicable to offering, trading, custody and provision of virtual asset services.
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