CMN introduces new investment rules for FIDCs
CMN Resolution No. 5,343/2026 governs investments in rights arising from judicial and arbitration proceedings
The Brazilian National Monetary Council (Conselho Monetário Nacional – “CMN”) published yesterday, September 24, 2026, CMN Resolution No. 5,343 (the “Resolution”), which amends the regulatory framework applicable to Receivables Investment Funds (Fundos de Investimento em Direitos Creditórios – “FIDCs”) and Funds of Receivables Investment Funds (Fundos de Investimento em Cotas de Fundos de Investimento em Direitos Creditórios – “FIC-FIDCs”), particularly with respect to investments in rights or expectations of rights arising from court proceedings and arbitration proceedings.
The Resolution amends CMN Resolution No. 2,907, dated November 29th, 2001, which authorizes the establishment and operation of FIDCs and FIC-FIDCs, by introducing two new provisions which, on the one hand, prohibit the direct or indirect acquisition of certain rights or expectations of rights that have not yet become definitively liquid, certain and enforceable and, on the other hand, establish additional valuation, audit and disclosure requirements for existing portfolios.
As from October 13th, 2026, FIDCs and FIC-FIDCs will no longer be permitted to invest, directly or indirectly, in rights or expectations of rights arising from court proceedings or arbitration proceedings unless the corresponding claim has become definitively liquid, certain and enforceable.
With respect to rights arising from court proceedings, the Resolution establishes cumulative requirements for a claim to be deemed definitively vested with these characteristics. In particular, the following decisions must have become final and no longer subject to appeal (transitado em julgado): (i) the decision recognizing the right during the merits phase of the proceedings; (ii) the decision issued during the liquidation phase, where necessary to determine the amount due; and (iii) the decision concerning any challenge to the enforcement of the judgment or objections to enforcement, if filed, or the applicable period for filing such challenge or objections must have expired without any such filing.
In the case of rights arising from arbitration proceedings, a partial or final arbitral award must have been rendered recognizing the right and determining the amount due. In addition, the statutory 90-day period from notification of the award, as provided for under Article 33, paragraph 1, of Law No. 9,307, dated September 23, 1996, for the filing of an action to set aside the award must have expired, or any such action must have been definitively dismissed, whether on the merits or without a decision on the merits.
Accordingly, the rule is not limited to the existence of a decision in favor of the holder of the claim. For a claim to be characterized as definitively liquid, certain and enforceable, the applicable requirements concerning the determination of the amount due and the exhaustion of the available avenues for challenge set forth under the regulation must also be satisfied.
The new rule is expressly broad in scope. The Resolution defines an indirect investment as one made through structures, transactions and financial products capable of capturing the risks and benefits associated with the rights or expectations of rights subject to the restriction.
In this context, the restriction applies, among others, to: (i) securities or contractual instruments whose underlying assets, collateral, remuneration or payment flows are linked to such rights; (ii) units or shares of investment funds, companies or investment vehicles, whether in Brazil or abroad, whose portfolios include such rights or instruments linked thereto; and (iii) derivative instruments whose underlying assets correspond, directly or indirectly, to the rights or instruments referred to in the Resolution.
The broad scope of this provision should therefore be taken into account when structuring transactions involving economic exposure to claims arising from court or arbitration proceedings, including where such exposure does not result from the direct acquisition of the underlying claim itself.
The Resolution also establishes specific requirements for FIDCs and FIC-FIDCs whose portfolios contain rights or expectations of rights arising from court proceedings or arbitration proceedings that fall within the scope of the new restriction.
By January 4th, 2027, such funds must, at a minimum: (i) adopt a consistent methodology for determining the value of the receivables, which must be capable of independent verification, with valuation based exclusively on internal assumptions of the fund administrator, manager or consultant not being permitted; (ii) carry out reassessments whenever relevant procedural developments occur that may affect the expected realization or value of the rights; (iii) submit compliance with the valuation and reassessment requirements to verification by an independent auditor; and (iv) disclose information in a standardized format that allows comparison across reporting periods, at least monthly and in a structured electronic format that enables automated processing.
The information to be disclosed includes the identification of the fund, its administrator and manager; the identification of the relevant court proceeding or arbitration proceeding and the respective court or arbitral institution; information regarding assignors, assignees and related parties; the date and instrument of assignment; the value of the claim and any fractional interest therein held by the fund; and, where applicable, the composition of the portfolio by debtor governmental entity.
