BRAZIL Law and Practice Contributed by: Eduardo Castro, Pedro Nasi and Gabriel Libanori, Machado, Meyer, Sendacz e Opice
and reach of the new payment rail. Now, only e-cur - rency issuers or acquirers that act exclusively within limited-purpose payment schemes or federal, state or municipal public programmes are exempted from authorisation by the BCB. Also, in addition to the operation of the payment scheme participants, the operation of the payment rail itself may require authorisation from the BCB if certain financial thresholds are exceeded. 5.2 Regulation of Cross-Border Payments and Remittances Pursuant to Law No 14,286, enacted on 29 December 2021 (the “Foreign Exchange Law”), foreign exchange transactions may be carried out without any value lim - itation, subject to applicable laws and the regulations issued by the CMN and the BCB. Cross-border remittances and payments can only be implemented via foreign exchange transactions executed between a Brazil-based party and an insti - tution duly authorised to operate in the FX market by the BCB, namely banks (without limitation), foreign exchange brokers, securities brokers/distributors (up to USD500,000 per transaction) and payment institu - tions (up to USD100,000). BCB Resolution 277/22 governs, among other mat - ters, cross-border remittances, and provides that institutions authorised to operate in foreign exchange must, among other things, collect support documen - tation pertaining to their clients’ economic/financial capacity and the legality of the transaction, as well as provide all such information to the BCB. The focus of the regulation is control of the inflow and outflow of foreign currency and AML/CFT rules. 6. Marketplaces, Exchanges and Trading Platforms 6.1 Permissible Trading Platforms Security Trading on Organised Markets Public trading and secondary market transactions for securities are carried out through regulated securities markets and intermediaries under the CVM’s frame - work. In Brazil, the key “marketplace” categories
are typically structured exchange markets ( bolsa de valores ) and organised over-the-counter (OTC) mar - kets ( balcão organizado ), operated by market infra - structure providers subject to the CVM’s rules on reg - ulated markets and organised market administrators (including CVM Resolution No 135 of 10 June 2022). In Brazil, B3 is the main organised market infrastruc - ture provider, operating equities, derivatives and fixed- income markets, as well as organised OTC environ - ments, under CVM oversight and its own operational rulebooks. Other players acting as organised market infrastructure providers in Brazil mostly focus on niche markets (eg, commodity trading platforms). Digital Marketplaces In Brazil, digital marketplaces or e-commerce plat - forms may be subject to regulation depending on the business model adopted, and particularly the func - tions offered to buyers and sellers registered with such platforms. Digital marketplaces may either act as subacquirers or contract an acquirer or another subacquirer to be responsible for ensuring the acceptance of payment instruments within their digital environment, and for settling payments to merchants. The definition of “subacquirer” is broad and has increasingly been applied to major big tech compa - nies that have developed successful multinational delivery and mobility solutions. In essence, compa - nies in Brazil are not permitted to act as merchants for the purpose of credit or debit card transactions and subsequently intermediate in the payment of such amounts to different sub-merchants within their own platforms. Instead, these companies are required to operate as subacquirers under private payment schemes to mitigate bankruptcy risks, or to delegate this function to a licensed acquirer or subacquirer under such schemes, which then transfer the funds directly to sub-merchants/final receivers registered on the digital marketplace platform. 6.2 Regulation of Different Asset Classes For regulatory purposes, assets in Brazil are divided into financial assets and securities. Financial assets are instruments that represent a claim over future eco -
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