At the end of September, the Superior Court of Justice (“Superior Tribunal de Justiça” or “STJ”), when judging Special Appeal No. 2149442-PR (“Appeal”), decided that the use of an entity not accredited with the ICP-Brasil key to perform an electronic signature on a credit certificate is legally valid. Check out the details of the decision below!

The Appeal, filed by an investment fund (“Appellant”) against a natural person (“Appellee”), originated from a search and seizure action based on a Bank Credit Certificate (“Cédula de Crédito Bancário” or “CCB”) with a fiduciary assignment agreement, then documented and signed electronically by the parties through the Clicksign platform (without a digital certificate with an ICP-Brasil key). The action had been filed by the Appellant (also a creditor of the CCB) against the Appellee (debtor of the CCB).

In the context of the search and seizure action, the first instance judge dismissed the action without judging the merits of the case based on the “impossibility of validating and/or authenticating the alleged electronic signatures of the agreement and the endorsement of the instrument after an attempt, ex officio, to carry out the validation”. The Appellant appealed, and the first instance judgment was upheld; the motion for clarification was also rejected.

Therefore, the Appellant filed the Appeal before the STJ, arguing that the judgment violated Article 10, paragraph 2º of Provisional Measure No. 2200/2001 and that the platform used had been stipulated as valid by the parties when issuing the CCB.

In this context, Minister Nancy Andrighi understood that the certification process by the ICP-Brasil system does not exclude other means of legal validation of electronic documents and signatures, which is expressly provided for in paragraph 2º of Article 10 of Provisional Measure No. 2200/2001.

Thus, although Law No. 14063/2020 provided for security levels for electronic signatures (simple, advanced, and qualified), the Minister understood that the legislator intended to create different levels of evidentiary force for electronic signatures and, at the same time, to grant legal validity to any electronic signature, considering (i) private autonomy; and (ii) the freedom of forms of declaration of wills between individuals.

Furthermore, the Minister argued that the recognition of legal validity and probative force of documents signed and issued electronically with any level of security, as long as it is possible to infer or audit the signature or document, is already a position that has been adopted by STJ.

Even though the Minister understands that the advanced electronic signature (such as the one used in the case) has a lower presumption of veracity than the qualified one (which uses the ICP-Brasil Key), the advanced one has a reasonable burden of evidentiary force and, more importantly, legal validity identical to a document with a physical signature.

In this case, since the parties expressly agreed that the CCB would be signed by a platform indicated by the Creditor, and since the Creditor indicated the Clicksign platform, it cannot be said that the platform would not be valid because it does not have an ICP-Brasil Key. Furthermore, there is a presumption of agreement of wills regarding the use of the indicated method.

Regarding the authenticity of the Appellee’s signature, the Minister argues that the platform report contains several validation factors. Therefore, the fact that the First Instance Court was unable to validate the document is not sufficient to presume adulteration of the signatures for two reasons: (i) it is not the judge’s role to perform such conference, which should be done by one of the parties (the judge’s participation is prohibited by Article 139, I of the Brazilian Code of Civil Procedure); (ii) there are sufficient elements that indicate the veracity of the signature. Also, the document used by the Judge to perform such conference had been removed from the records (copy) and is not the original received by the parties, and only the latter could indicate the real authenticity of the document.

Finally, the Minister understood that both the advanced and qualified signatures are valid, differentiated only in the aspect of probative force, which is why she granted the appeal, annulling the appealed decision and ordering the return of the case to the court of origin so that the search and seizure action could proceed.

On September 11, the Central Bank of Brazil (“Banco Central do Brasil” or “BCB”) published Resolution No. 410/2024, amending BCB Resolution No. 278/2022 (“Resolution”), which regulates Law 14.286/2021, in relation to foreign investment in Brazil, in foreign credit and foreign direct investment operations, as well as the provision of information to the Central Bank of Brazil. Check out the changes!

First, new definitions were inserted in the Resolution, to delimit corporate issues involving non-resident and resident investors:

(i) “Sale to resident” means the transfer of equity interest in a Brazilian company from a non-resident investor to a resident;

(ii) “Acquisition of resident” means the transfer of equity interest in a Brazilian company from a resident investor to a non-resident;

(iii) “Inactivation of the SCE-IED code” means the end of the relationship between the receiving-investor pair due to the termination of the investment; and

(iv) “Closing of receiving company” means the liquidation, total spin-off, merger or incorporation of the Brazilian company receiving the investment.

It should be noted that the SCE-IED code is the unique identifier of the non-resident recipient-investor pair generated automatically by the Information Provision System of Foreign Capital of Foreign Direct Investment (SCE-IED) after identification of the recipient and the non-resident investor.

Additionally, some definitions were revoked and no longer apply to the Resolution, as follows: (i) the definition of assignment of equity or stocks (which also allowed the transfer of equity interest in a Brazilian company between non-resident investors); (ii) the definition of exchange of equity or stocks in Brazil (which allowed the exchange of equity interests in Brazilian companies, where at least one of which is a recipient of foreign direct investment, between resident and non-resident investors, or between non-resident investors); and (iii) the definition of transfer of equity or stocks in Brazil (which allowed the transfer of equity or stocks paid up in the capital of a company in Brazil, held by a non-resident investor, for the payment of capital subscribed by such non-resident investor in another recipient in Brazil), so that such transactions are no longer regulated by the Resolution.

Furthermore, the person responsible for providing information to the Central Bank of Brazil or the legal representative is now required to inform BCB of the deactivation of the SCE-IED code and the closure of the investment recipient, if applicable.

In addition, one more information was included, to be declared within 30 days to the Central Bank of Brazil: capitalizations through virtual assets. Therefore, the following information must be declared to the Central Bank of Brazil within this 30-day period regarding transactions resulting from foreign direct investment: i. distribution of profits and dividends, payment of interest on equity, acquisition of residents, sale to residents, return of capital and net assets resulting from liquidation, capitalization of profits, dividends and interest on equity and other capitalizations, when not carried out in accordance with art. 35; ii. conversion into investments of remissible rights not classified as foreign credit; iii. international share transfer; and vi. capitalization through tangible, intangible or virtual assets.

However, some transactions no longer need to be reported within 30 days, as follows: (i) those arising from the assignment, exchange and transfer of equity or stocks between resident and non-resident investors, or between non-resident investors; (ii) those arising from corporate reorganization; (iii) those arising from payments and receipts in national currency in non-resident accounts; and (iv) those arising from reinvestment.

The Resolution with the amends described above came into effect on October 1, 2024, and seeks greater simplicity in the provision of information for the Central Bank of Brazil’s control of foreign investment transactions in Brazil.

On September 17, the Court of Appeals of the State of São Paulo (“Tribunal de Justiça do Estado de São Paulo” or TJSP), when judging a Civil Appeal in which a Brazilian bank (“Appellant”) and a natural person (“Appellee”) were parties, decided that electronically signed agreements are valid and do not require a physical copy. Check out below!

In this case, the Appellant wanted to reverse the judgment, which dismissed the search and seizure action filed against the Appellee without judging the merits of the case because the credit certificate had not been presented to the registry office. The parties had entered into a financing agreement to acquire a motor vehicle, which was granted as fiduciary collateral and, having the Appellee defaulted in the repayment of the credit, the Appellant requested the search and seizure of the vehicle.

For the Appellant, the judgment should be reversed since the Brazilian Civil Code guarantees the freedom of agreement forms so that the electronic issuance and signature of the bank credit certificate (“Cédula de Crédito Bancário” or CCB) is not prohibited. The Appellant also argued that the physical presentation of the agreement could not be required in digital processes, as well as reinforced the validity of electronic documents and their signatures.

For the TJSP, the lower court judgment should be annulled for the following reasons:

(i) CCB has a hybrid nature, representing an extrajudicial enforceable instrument and, at the same time, a negotiable instrument, transferable by endorsement;

(ii) The search and seizure action requires only proof of the contracting of fiduciary assignment and notification to characterize the debtor’s arrears;

(iii) Once the requirements are met, it is unnecessary to present the physical copy of the CCB, since digital documents are valid as proof of the contracting of the fiduciary assignment.

In view of that, TJSP understood that as the Provisional Measure No. 2.200/01 ensures the legal validity of documents issued electronically extinguishing the action due to non-presentation of the “original” CCB was not the correct understanding. Therefore, the judgment was annulled, allowing the action to proceed to presentation of the adversarial arguments of the Appellee and the judgement of the merits of the action.

On May 21^st, the Brazilian Superior Court of Justice (“Superior Tribunal de Justiça” or “STJ”) understood that the service of a process made by a process agent in an agreement governed by foreign laws and entered into by a Brazilian party is valid. The decision is of fundamental importance for international agreements and will be detailed below!

The court decision occurred on an Internal Appeal in the Motion for Clarification in the Ratification of Foreign Court Decision No. 3384 (“Appeal”), in which two companies from the same economic group, one Brazilian company  and one foreign company (“Appellants”) and, on the other side, a foreign bank and foreign company and a Brazilian bank (collectively “Appellee”), acted as parties, being such Appeal against the decision that granted the request for ratification of the foreign court decision.

The Appellants’ argument was based on two pillars: (i) the lack of a valid service of process; and (ii) the violation of Brazilian public order.

However, dismissing the Appeal, Minister Ricardo Villas Bôas Cueva, understood that:

i) Although the ratification of the foreign court decision is STJ’s jurisdiction, such jurisdiction is merely deliberative, that is, to verify whether the request meets the requirements of the governing legislation and whether there is no offense to national sovereignty, to human dignity, and the public order;

ii) In this sense, the decision was issued by a competent authority and did not fall within the scope of the exclusivity of Brazilian jurisdiction;

iii) The foreign court decision contained elements that proved the parties’ adequate service of process.

Regarding the service of process, the Minister clarifies that facility agreements, which are the subject of the lawsuit, were governed by English law, including that the service of process would occur through a process agent, with the parties having agreed that such service of process would be valid. Thus, according to STJ’s precedents, the service of process that occurred abroad must follow the laws of the country where the service of process occurred – which was the case, since it happened under the laws of England and with the terms agreed in the agreement.

Thus, the foreign court decision was ratified, giving validity to the service of process by process agent in an agreement governed by foreign laws.

On August 23rd, Resolution CD/ANPD No. 19/2024 (“Resolução CD/ANDP nº 19/2024”) came into force, approving the International Data Transfer Regulation (“Regulation”) and the content of the standard contractual clauses, which are extremely important for data security. Check out the details below!

Consultor Jurídico. Como ficam os juros com o novo Código Civil de 2002 (conjur.com.br), Paulo Eduardo Razuk; Denise Zanutto Tonelli. Disponível em https://www.conjur.com.br/2005-out-11/ficam_juros_codigo_civil_2002/

Migalhas. Juros de mora e desproteção de pessoas em vulnerabilidade: Análise inicial da lei 14.905/24, Elisa Cruz. Disponível em: https://www.migalhas.com.br/coluna/migalhas-das-civilistas/411136/juros-mora-e-desprotecao-de-pessoas-em-vulnerabilidade-lei-14-905-24

Published and in force since April 16, 2024, Ordinance No. 615 establishes the general rules that must be observed in payment transactions carried out by agents authorized to operate the fixed-odds lottery modality, in Brazil, in virtual or physical modalities.

Ordinance No. 615 presents a series of rules that must be complied with by agents authorized to operate in the sector. In this sense, wagering stakes, withdrawals of financial resources by bettors, and payment of prizes by operating agents to bettors must be carried out exclusively through electronic transfer between a registered account (bettor’s account) and the transactional account (operator’s or agent’s account). In addition, both accounts must be held in financial or payment institutions authorized to operate by the Central Bank of Brazil (BCB).

In addition, operating agents cannot receive financial wagers through cash, bank slips, checks, virtual assets or crypto assets, any payment or transfer not from the account registered by the bettor or from third parties, through credit card or other postpaid payment instruments, and any other alternative other than Instant Payment (PIX), wire transfer (TED), debit or prepaid card and book transfer.

However, it is expressly forbidden for the operating agent: a) allow the placing of bets without prior settlement of the wire transfer; b) granting, in any form, an advance, anticipation, bonus or prior advantage, even if by way of promotion, publicity or advertising; c) enter into a partnership, contract, agreement or any other form of arrangement or business arrangement that aims to enable or facilitate access to credit or the commercial development operation by the bettor; e d) promote or allow access, physical or electronic, to the individual or legal entity that grants credit or carries out commercial development operations to bettors.

Regarding the transactional account, i.e., the one owned by the operating agent, its offer is exclusive to financial institutions authorized to operate by the BCB and such account must allow bettors to make bets and withdrawals with the operating agent or receive the prize amounts due to them.

On the other hand, the bettors’ funds held in the transactional accounts constitute separate assets, which are not to be confused with the assets of the operating agent and are not directly or indirectly responsible for any obligation of the operating agent. Furthermore, such resources may not be subject to seizure, sequestration, search and seizure or any other act of judicial constriction due to debts of the agent’s responsibility. Thus, they do not comprise the assets of the operating agent for the purposes of bankruptcy, judicial or extrajudicial reorganization, intervention or judicial or extrajudicial liquidation. Finally, they cannot be given as collateral for debts assumed by the agent.

It is forbidden for the operating agent to use the bettors’ funds held in the transactional account, even if on a temporary basis, to cover prizes due or other expenses of their responsibility.

In addition, the operating agent may invest the total or partial daily balance of the transactional accounts, including the amounts corresponding to open bets, in federal government securities or in repo operations backed by federal government securities admitted to trading in the Selic, with daily liquidity, with the financial institution holding the agent’s transactional account. In this sense, it is forbidden for the operating agent to apply the balances in any investment other than those previously mentioned, as well as to share the winnings with the bettors.

As for the graphical account, i.e., the one that the agent must make available to the bettor in its betting system, it must allow the bettor to manage its operations and resources, and must inform, at least: a) the history of the last thirty-six months of bets and withdrawals, bet amounts and prizes received; b) the amount of open bets, and c) the available financial balance.

An important point is that it is forbidden for the operating agent to restrict the withdrawal of the bettors’ available financial balance. In this sense, after the bettor makes the withdrawal request, the balance must be available in the registered account within 120 minutes.

Regarding the payment of prizes, these must be made by wire transfer to the previously registered account held by the bettor, within 120 minutes of the end of the event object of the bet. However, if the bettor wishes, such prize can remain in the transactional account and be used for new bets with the same agent.

In the event the amount of the open bets collected in a certain real sports-themed event are insufficient to pay the prizes due or whenever there is a bet with a prize to be received after an online gaming session, the agent will transfer from its proprietary account to the corresponding transactional account the amount necessary for the payment. However, if the event does not occur, the amounts wagered must be fully returned to the bettors.

Finally, Ordinance No. 615 provides for preventive measures in the event of insolvency or illiquidity. In this sense, the operating agent must constitute a financial reserve to guarantee the payment of prizes and other amounts due to bettors, in the minimum amount of R$ 5 million. Such reserve shall be held in custody by a financial institution authorized to operate by the BCB in the form of federal government securities and shall be kept separately from transactional accounts and other proprietary accounts held by such agent.