Last week, the Brazilian Securities and Exchange Commission (CVM) published the Guidance Opinion 40, which establishes the autarchy’s understanding of the rules that apply to crypto assets considered real estate values, in addition to presenting rules on the supervision and discipline of market security agents. Cescon Barrieu’s lawyers explain, however, that does not represent a new regulation or regulatory framework for the cryptocurrency industry.
“In reality, most of the issues raised there only consolidate, in a single document, different interpretations and guidelines that the CVM had already given to the market in a limited way, through precedents and previous Circulars. The CVM had already judged, for example, some cases evaluating the requirements that crypto assets must meet to be considered securitiessuch as the cases of Niobium Coin and EQ9”, highlights Cescon Barrieu’s partner in the capital markets area, Julia Franco.
It also highlights that a circular had already been issued clarified that investment funds can only acquire crypto assets directly if said assets are classified as financial assets abroad and comply with certain due diligence guidelines.
“The main virtue of the Circular Letter was to order the different discussions that were taking place within the Autarchy, making it clearer for the market and its participants the scope and limits of the CVM regulation on crypto assets.“, Explain.
Cescon Barrieu’s associate attorney in the Regulatory area of the CVM, Frederico Calmon, highlights that the ruling provided greater clarity on what specific information the issuers of crypto assets considered securities and provided greater detail on the expected role of intermediaries operating in the distribution of crypto assets. The text, according to Calmon, still makes it clear that these participants can distribute crypto assets that are not classified as securities.
“We will still need to face a deeper path of discussions on how to provide greater security and predictability for issuers who really want to issue security tokens (those crypto assets that are characterized as securities) and investors interested in these assets, thinking about possible adjustments to the current regime of public offerings that unlock this market in a responsible manner”, says the lawyer. For the specialist, more effective changes in the CVM regulations still await new legislation. “They should only occur after the approval of the bill 4,401/21 or some other legislative effort that establishes the limits for the regulation of the crypto market in Brazil”, he concludes.
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