
| The International Legal Newsletter | November / December 2007 |
| 01 | Brazilian Reinsurance Regulations Published |
| 02 |
Prospective Legislative Reform to Improve Position of Minority Stockholders |
| 03 |
CPMF no Longer Imposed on Bank Account Movements |
| 04 |
Uncertain Future for Special Courts at Airports Marcus A. Matteucci Gomes |
| 05 |
The Rise of Export Restraints: Limitations from Inside-Out |
| 06 |
Felsberg e Associados Advises Mike Mullen Energy Equipment Resources and Etesco Drilling Company B.V. on USD 580 Million Contracts in Brazil
|
Brazilian Reinsurance Regulations Published Neil Montgomery and Ana Carolina Penteado |
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After the legal breakthrough at the beginning of 2007 with the enactment of Supplementary Law No. 126/07, which established the basic framework for the opening of the Brazilian reinsurance market, the final set of regulations for such opening have been finally enacted.
On December 19, 2007, SUSEP (Private Insurance Superintendence) published Resolutions No 168 to 173 in the Official Gazette, which correspond to the final text of the reinsurance regulations, and which resulted from the discussions held over the last couple of months between the Brazilian regulator and the many stakeholders of this important sector of the economy, after the draft regulations had been submitted to public consultation (audiência pública). The Brazilian regulator (the CNSP – National Private Insurance Council) accepted many of the suggestions submitted by the many interested stakeholders, including dispensing additional collateral for foreign admitted reinsurers with investment grade ratings (granted by Standard & Poors, Fitch, Moody's or AM Best) and reducing collateral for foreign admitted life reinsurers from US$5 million to US$1 million. For registering with SUSEP to operate in Brazil as an admitted reinsurer, the foreign reinsurer will need to have a net worth in excess of US$100 million and its solvency rating must be a level above investment grade. It must also maintain a bank account in Brazil (connected with SUSEP) with cash deposits of at least US$5 million (US$1 million for life reinsurers). The sporadic reinsurer, in turn, must have a net worth greater than US$150 million and a rating two levels above investment grade. The regulations also provide for the possibility of underwriting reinsurance in foreign currency when: (i) the assigned insurance was taken out in foreign currency, (ii) the assigned risks are abroad, and (iii) the major reinsurers are foreign (only in non-pro rata reinsurances). Resolution No 171 establishes the rules and procedures for the technical reserves that the reinsurer must collect monthly, such as the reserve for current risks, the reserve for uncollected premia, the reserve for losses to be liquidated, the reserve for technical surpluses, the reserve for financial surpluses, amongst others. Another important suggestion accepted by SUSEP concerns the limit of the liability the reinsurer withholds. Initially, the regulations established that the withheld risks for local reinsurers were limited to 3% of the reinsurer’s net worth. The enacted rules do not mention such limit and set forth that it shall be defined by the reinsurer, according to its financial situation and subject to SUSEP’s evaluation. The main Resolution (No 168) becomes effective 120 days after its publication and IRB Brasil – Re (the sole state-controlled local reinsurer to date) will have an extra 180 days to adapt to such regulations. The other Resolutions are immediately effective. Notwithstanding, SUSEP will now start receiving applications from interested foreign reinsurers to either establish themselves in Brazil as local or admitted reinsurers or register as sporadic reinsurers. Market speculation suggests that the Brazilian market could support up to 3 local reinsurers, there apparently being about 20 foreign reinsurers interested in registering as admitted reinsurers (including: Catlin, Federal, General Re, Lloyds of London, Paris Re, Partner Re, RGA and Tempest). Additional information may be provided by the firm’s partner, Neil Montgomery at neilmontgomery@felsberg.com.br and by associate Ana Carolina Penteado anapenteado@felsberg.com.br. |
Prospective Legislative Reform to Improve Position of Minority Stockholders |
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Pending Brazilian legislation would improve the position of minority stockholders. Preferred stock issued by Brazilian corporations is often "bald stock", so-called because its preferred status is largely hollow. Such stock gives preferred stockholders priority over common stockholders in the event of a liquidation and at least nominally a preference in the distribution of dividends. However, the distribution of dividends is sometimes more theoretical than real. In essence, controlling common stockholders, with little consequence, have the ability to short-change the preferred stockholders by simply not distributing the preferred dividends. Existing Law no. 6.404 of 1976, also known as Lei das S.A.s (Brazilian Law of Corporations), provides for preferred stockholders to be compensated with the grant of voting rights if they do not receive dividends for a period contemplated in the corporate charter of not more than three consecutive financial years. The dividend amounts due to preferred stockholders may be set by the corporate charter, but in the absence of a provision in the charter, the existing law establishes minimum dividend amounts as a percentage of net corporate profits. Under the current law, if there are no corporate profits, then no minimum distribution is due. Corporations accordingly may prevent the accrual of voting rights either by arranging their affairs so as not to have any profit or by simply distributing a minimum dividend (either as fixed by the corporate charter or in the absence of an express charter provision, as established by law) to interrupt the period. On November 20, 2007, the Brazilian Senate’s Commission of Economic Affairs (Comissão de Assuntos Econômicos - CAE), on behalf of the full Senate, unanimously approved proposed legislation that would more readily afford preferred stockholders the right to vote. The legislation would modify Article 111 of the Brazilian Law of Corporations, to provide that preferred stockholders acquire the right to vote as the law presently contemplates, but also when the corporation pays no dividends at all, even if it has no profit during the relevant period. The legislation is now under consideration by the House of Representatives (Câmara dos Deputados). The declared goal of the legislation is to encourage corporations to adopt good corporate governance measures, including making all of their shares voting stock. The rapid growth of listings on Brazil’s Novo Mercado - a specific listing segment of the São Paulo Stock Exchange (BOVESPA) designed for corporations that undertake to observe the highest levels of quality governance practices - makes this a propitious moment to adopt this type of legislation in order to further increase the incentives for good corporate governance. Further information on the above-mentioned matter may be obtained directly from Juliana Martines at julianamartines@felsberg.com.br. |
| CPMF no Longer Imposed on Bank Account Movements Antonio Amendola |
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All foreign investors have become familiar with CPMF when they make foreign direct investments in Brazil. CPMF is a tax imposed on all bank account debits and is levied at 0.38% of each amount debited. It is, therefore, a cost which no one can escape from.
CPMF was conceived to be temporary and the term for its collection has been extended several times. In 2002, the collection of CPMF was extended to December 31, 2007. Although the Federal Government had included projected public revenues deriving from CPMF in the 2008 budget, Congress did not approve this new extension. In a dramatic scenario in which the Executive Power claimed support from Congress, most senators denied such support and did not approve another extension for collecting CPMF. Accordingly, CPMF will no longer be imposed after December 31, 2007. Although the end of CPMF is being celebrated, the Federal Government indicates that certain changes in the tax legislation will be enacted with the support of the Brazilian Congress. Such changes will offset the loss of the CPMF revenues, but will only be known in the beginning of 2008. Felsberg e Associados will continue to follow-up the congressional battles revolving around the end of the CPMF and the Federal Government's actions to revert the shortfall in revenues arising therefrom. Further information on the above may be obtained directly from Antonio Amendola at antonioamendola@felsberg.com.br. |
Uncertain Future for Special Courts at Airports |
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The Special Courts installed at Congonhas (São Paulo) and Cumbica (Guarulhos) airports by the National Justice Council (CNJ), and which are structurally supported by the Regional Federal Court of the 3rd Region, will be turning three months old on January 7, 2008. It now appears that despite there being plans for the courts to cease their activities on January 31, 2008, their future is now uncertain, it now being possible that the date may be extended, even though there has still been no official discussion over the suggestion. The main purpose of these Courts, set up in emergency and experimental forms, is to stimulate the occurrence of conciliation on the more common complaints from passengers, such as delays or cancellations on flights, and loss or tampering with luggage. The complaints are submitted to a conciliatory session. There being no agreement, the plaintiff may from that moment on request the remittance of their complaint to the Court nearest their home, even if it is in a different State, where, after the presentation of the defendant, there will be a summary judgment. Further information on the above-mentioned matter may be obtained directly from Marcus Gomes at marcusgomes@felsberg.com.br. |
The Rise of Export Restraints: Limitations from Inside-Out |
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Since 1947, multilateral trade negotiations have been tackling the reduction of tariffs with the main objectives of regulating, liberalizing and stimulating trade among countries. WTO Members had to adjust and report their industrial policies, convert all quotas into tariffs, bind their tariffs, and stop blocking imports by means of high tariffs – all actions aiming the opening of trade through the removal of import barriers. Despite eight negotiation rounds, no one could anticipate an imminent obstacle for trade developed by creative minds: export restraints.
Globalization creates excellent grounds for a boost in countries’ exports as it increases demand. The positive scenario produced by the growth of the demand is now provoking price peaks and thus affecting domestic inflations. The fast and cheap solution - or rather lucrative for governments - to remedy this situation is to tax exports. As a concrete example, the price of wheat this year reached the highest level since 1997. Among the biggest wheat producers and exporters, Russia and Argentina felt that their domestic economies could be affected by the boom in wheat prices. The Russian government, through Resolution 660, of October 10, 2007, raised the export tariff for wheat by 10%. Argentina, in turn, applied an export tax of 20%on wheat in 2002, and, recently, on November 9, 2007, issued Resolución 369/2007, which increased the custom duty for wheat exports to 28%. Export taxes or bans, as well as regulated or supervised exports, are not on the radar of international trade legislation, neither in the Doha negotiations. WTO Agreements do not prohibit the use of export tariffs; the only restriction is Art. 12 of the Agreement on Agriculture, which requires Member Countries to notify such export prohibitions or restraints to the Committee on Agriculture and be vigilant with the constraint effects on the food security of importers. Apart from the WTO, regional agreements are more emphatic in making export restraints illegal, such as the Mercosur, which prohibits trade limitations amongst its member countries. The real motives for the imposition of export prohibitions may vary: governments might want to avoid price volatility, increase government revenue, or stimulate exports of higher value-added goods; regardless of their reasons, the effects are well known: the encouragement of inefficiencies in the world economy and distortion of prices. Delegates in the Doha Round are focusing on gaining access to other markets, but the real problem, in the future, might be access to essential foreign goods. Further information on the above-mentioned matter may be obtained directly from Roberto Kanitz at robertokanitz@felsberg.com.br. |
Felsberg e Associados Advises Mike Mullen Energy Equipment Resources and Etesco Drilling Company B.V. on USD 580 Million Contracts in Brazil |
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The Rio de Janeiro Oil & Gas Department of Felsberg, Pedretti, Mannrich e Aidar Advogados ("Felsberg e Associados"), coordinated by partner David L. Meiler, has advised Mike Mullen Energy Equipment Resources, Etesco Drilling Company B.V. and Etesco Construções e Comércio Ltda. during direct negotiations with Petroleo Brasileiro S.A. ("Petrobras") for the extension of the charter and services contracts for the drill ship Peregrine 1. Such deals represent a potential revenue of approximately USD 580 million in daysrates, throughout the extension of the contracts. |