BRAZIL Law and Practice Contributed by: Alessandra Martins and Amanda Blum Colloca, Machado, Meyer, Sendacz e Opice Advogados
body and the BCB as the supervisory authority; (ii) private insurance, with the National Coun - cil of Private Insurance ( Conselho Nacional de Seguros Privados CNSP) as the normative body and SUSEP as the supervisory authority; and (iii) pension funds, with the National Council for Supplementary Pensions ( Conselho Nacional de Previdência Complementar CNPC) as the nor - mative body and the National Superintendence of Supplementary Pensions ( Superintendência Nacional de Previdência Complementar PREVIC) as the supervisory authority. The capital markets are governed by the BCB and the CVM, and there are also self-regulatory bodies such as the Brazilian Financial and Cap - ital Markets Association ( Associação Brasileira das Entidades dos Mercados Financeiro e de Capitais ANBIMA), BSM and Ancord. The SPB has the BCB as its normative body and supervisory authority. 2.7 No-Action Letters Regulators in Brazil do not issue “no-action” let- ters. 2.8 Outsourcing of Regulated Functions Some regulated functions can be outsourced through contractual arrangements maintained between regulated and non-regulated entities, or through more than one regulated entity. The outsourcing of regulated functions is usu - ally achieved through two kinds of contractual arrangements, as follows. Banking as a Service In BaaS, one entity hires another to provide regulated services to its clients through a white- label solution. BaaS providers must always be regulated entities, but BaaS service users can
be either regulated or non-regulated. This rela - tionship is currently not regulated by the BCB, although regulation is being proposed through ECP 108 (as evidenced in 1.1 Evolution of the Fintech Market ). Therefore, as of now, there are no contractual or regulatory requirements for this relationship to be established. It should be noted that the regulatory burden falls on the entity pro - viding the regulated service, whether or not the BaaS user is a regulated entity. Banking Correspondence Regulated and non-regulated entities can func - tion as banking correspondents of financial insti - tutions. This relationship is regulated by CMN Resolution No 4,935 of 29 July 2021( “Resolu- tion 4,935/21” ). Article 12 of Resolution 4,935/21 establishes the minimum content of the contract executed between the financial institution and its banking correspondent, and it also establishes the requirements for providing compensation to banking correspondents in credit and foreign exchange transactions. Resolution 4,935/21 expressly provides that the banking correspond - ent offers services under the guidelines of the contracting entity, which will assume full respon - sibility for the service provided to end users through its banking correspondents. 2.9 Gatekeeper Liability Fintech providers are not formally considered as gatekeepers responsible for the activities on their platform. However, the regulatory frame - work views regulated entities as gatekeep - ers in relation to anti-money laundering (AML), countering the financing of terrorism (CTF) and measures against the proliferation of weapons of mass destruction, based on the provisions of BCB Circular No 3,978 of 23 January 2020( “Cir- cular 3,978/20” ). Circular 3,978/20 establishes that all institutions regulated by the BCB must establish measures and procedures based on an
113 CHAMBERS.COM
Powered by FlippingBook