Financial Institutions and Markets (J)
Author: Nezihe Boran Demir
The Law Amending Certain Tax Laws and Certain Other Laws under law no. 7061 ("Omnibus Law") published in the Official Gazette dated 5 December 2017 and numbered 30261, has the purpose to amend the tax legislation alongside the other legislation, such as Capital Markets Law No. 63621 ("Capital Markets Law"). With the amendments to the Capital Markets Law, crowdfunding has been legally accepted. Respective provisions regarding crowdfunding are entered into force as of publication of the Omnibus Law. As previously mentioned within the article named the Draft Law on Crowdfunding2, by the enactment of the provisions of crowdfunding, the legislator has aimed to achieve to keep the crowdfunding platforms in a free market, simultaneously bringing about protection mechanisms. This article will mainly focus on the innovations introduced under the Capital Markets Law with respect to crowdfunding.
Pursuant to Article 39 of Capital Markets Law numbered 63621 ("CML"), "It is mandatory to obtain permission from the Authority for performance of investment services and activities as a regular occupation, business or a professional activity...Persons and institutions not meeting conditions as foreseen under this Law, and have not obtained the permission of the Board, cannot carry out investment services and activities, even if they have been authorized according to their special laws." Accordingly, performance of investment services requires specific authorization to be obtained from the Capital Markets Authority ("Authority") for each service. Authorization certificates may contain one or more investment services. The investment services as foreseen under the CML are as follows:
In financing transactions, creditors, especially commercial banks, aim for repayment of loans through the smoothest manner possible. In order to secure the extended loan amount, creditors obtain security packages generally from borrowers, their shareholders or group companies to secure the extended loan amount. Within the security package, it is the intention of the lenders to receive securities that are time and cost efficient at the time of enforcement or foreclosure. Bank letters of credit are one of the most preferred securities, which include undertakings to pay the given amount without the need to conduct any further proceedings. This Newsletter will mainly focus on the definition and the legal nature of bank letters of credit, validity requirements, and validity formalities and, finally, a general overview to the types of bank letters of credit, in practice.
Authors: Rubens Vidigal Neto, Allan Crocci de Souza, Fernanda Mary Sonoki, Rafaella Flores Lellis
The Brazilian Central Bank (BACEN) has recently opened a public consultation for a new ruling that will regulate the fintech credit segment in Brazil (Public Consultation No. 55/2017). The proposal sets two new types of financial institutions, the direct credit company (Sociedade de Crédito Direto – SCD) and the peer-to-peer (P2P) lending company (Sociedade de Empréstimo entre Pessoas – SEP). Even though the proposed regulation aims at the fintech credit segment, it may also have an impact on the securitization and the alternative payment methods segments.
In recent years, the Brazilian fintech credit market has grown exponentially. This growth can be explained by the improved client experience and the better terms and conditions offered by fintech credit providers to their clients, and also by the fact that such fintech firms aim at consumers that are not usually targeted by conventional financial institutions. Due to strict regulatory framework and legal limits on interest rates that can be charged by lenders that are not financial institutions, most fintech firms work with bank partners that provide loans to the firms’ customers. This business model, on one hand, helps fintech firms reduce legal risk; on the other, however, increases costs and creates inefficiencies.
Bressler, Amery & Ross, P.C. Principal Denver Edwards was quoted in the Bloomberg BNA article, “Equifax Data Breach May Prompt Shareholder Derivative Suit,” by Jimmy H. Koo on September 13. The article discusses the recent breach of Equifax customers’ data and the possibility of a shareholder derivative suit.
A derivative suit against Equifax will likely allege breach of fiduciary duty. The purpose of any derivative suit is to “redress damages done by directors and officers,” but it isn’t “easy to have the board take action as they need to look at what happened” and assess whether there were any red flags, Edwards said.