By Moema Giovanella
The National Monetary Council – CMN, the Central Bank of Brazil – BCB and the Securities and Exchange Commission – CVM have been building an important regulatory agenda in recent years aimed at increasing competitiveness and security in the negotiation of commercial receivables in the country.
Just like the changes to the rules on receivables from payment arrangements, via CMN Resolution 4,734/19 and BCB Resolution 264/22, regulators have been issuing rules based mainly on the implementation of information and communication technologies in the financial market, to address two important points that bring vulnerability to the negotiation of duplicates, namely: (i) the non-obligation to use book-entry duplicates and register their negotiation in a registration system; and (ii) the need to strengthen control and monitoring measures for commercial receivables.
The current requirement to use book-entry duplicates and register in a registration system prevents the same commercial relationship from being formalized in different credit instruments and negotiated with different parties, creating a single entity, providing greater legal security to the assets negotiated in these transactions. Therefore, according to article 3 of BCB Resolution 4,815/20, in accordance with the terms and parameters established in the device, financial institutions and credit rights investment funds (FIDCs) must use book-entry duplicates and register the negotiation with registration entities.
Furthermore, as of the effective date of CVM Resolution 175/22, FIDCs established under this regulation may only acquire trade notes that are book-entry and have their transactions duly registered with registration entities. Even though they do not require all persons to issue book-entry trade notes, by defining as mandatory that the main sources of funds in this market (financial institutions and FIDCs) operate with book-entry trade notes and register the transactions with registration entities, the regulators indirectly encourage a large part of the companies interested in trading commercial receivables to issue book-entry trade notes.
Additionally, under BCB Resolution 339/23, registrars are now required to (i) notify the drawee about the transfer of ownership of the written duplicate or the creation of an encumbrance on it; (ii) reconcile information on written duplicates issued with those registered in registration systems or deposited in central depositories, in addition to the effects of acts and contracts on the written duplicates negotiated, according to information contained in registration systems or in central depositories; and (iii) accept and handle disputes, including within the scope of interoperability between systems, when necessary.
Under BCB Resolution 339/23, (i) registrars must maintain updated information in their systems on the forms and payment instruments linked to the payment of the written duplicate; and (ii) registrars are required to associate the written duplicate with the electronic invoice or other corresponding electronic tax document at the time of its issuance, provided that they have access to these documents.
Added to the indirect incentive given by regulators to companies interested in trading commercial receivables to issue book-entry duplicates (by requiring that financial institutions and FIDCs can only trade commercial receivables formalized in book-entry duplicates), the two resolutions can bring more security to the trading of these assets, mitigating risks of fraud and double assignment.
By facilitating access and improving control of information on commercial receivables, innovations tend to make the credit analysis process more transparent and efficient, which may not only facilitate companies' access to sources of financing but also be considered as a factor for a possible reduction in the current cost of credit.