terça-feira, 1 de agosto de 2017

DOUBLE TAXATION AGREEMENT - BRAZIL AND RUSSIA

Today, the decree that describes the DTA with Russia has been published.

As of today, Brazil has DTAs with all the BRICS countries.

The original text, in Portuguese, can be found in this link

segunda-feira, 31 de julho de 2017

Right Timing for Port Infrastructure Investments in Brazil

A very timely and insightul report by L.E.K. consultants. Link below.





Port infrastructure: Economic recovery, regulatory
updates and the need to upgrade Brazil’s
existing terminals are turning port terminals into
attractive opportunities for investors.




 Two years into its greatest recession, the Brazilian economy
is slowly resuming growth (see Figure 1). Despite short-term
political instability, structural economic measures will most likely
be implemented to put the country on a growth track.
Economists believe that investment is the engine of growth for
emerging economies. 




That’s especially true for Brazil, which, after
two years of increasing unemployment, will not see recovery come
from a new wave of consumer activity but rather from investments
— most likely in infrastructure, which supports other activities and
contributes to higher productivity for the economy as a whole.
Leading economists and financial institutions operating in Brazil
expect GDP to grow approximately 0.5% in 2017 and 3% in
2018, which will positively drive demand after a strong recession.




Read the full report at: 

http://www.lek.com/sites/default/files/1938_Port_Infrastructure_LEK_Executive_Insights.pdf



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segunda-feira, 10 de julho de 2017

INVESTMENT VISA IN BRAZIL - 2017

As of 2017, the standard investiment visa requires the investor to incorporate a company in Brazil, or to join any existing company in Brazil, and invest at least 500,000.00 BRL (about 150,000.00 USD). 

In this case, to invest means to transfer money. The government does not require that the money be used specifically for the purchase of machinery or for any other purpose. In general,  they will evaluate the project`s potential to generate jobs and to pay for services provided by Brazilians


There is an exception for tech companies. 

Investments in technology may be as low as 60,000.00 USD, depending on the relevance of the technology. In this case, the company receiving the investment and asking for the visa must:

a)  be located in one of Brazil`s tech parks, or connected to a Brazilian official startup program; or

b) prove that the technology will be relevant for the development of the Brazilian technology ecosystem. For example, that it will improve Brazilian manufacturing capabilities or have a positive impact in the consumer market.



domingo, 9 de julho de 2017

EUROPEAN BILLS OF EXCHANGE AND THE BRAZILIAN BANKS


The use of negotiable instruments in Brazil is very different from it use in Europe.

I have a case that illustrates that in an informative and funny fashion.

One of my clients, a European company, performed sales of electronic equipment worth several million dollars to a Brazilian buyer.

We drafter a very good sales contract, according to Brazilian law. It was dully signed and executed. Things were looking good.

However, the bank financing the production of the good (my client`s bank) demanded a very specific kind of security linked to the agreement. It wished for a Bill of Exchange.

That is when the problems began.

Brazilian businessmen are used to 3 kinds of negotiable instruments: CHEQUES, PROMISSORY NOTES and, in case of import/export, LETTERS OF CREDIT.

This is pretty much it. In some specific markets, especially in agribusiness, people may use a special note called Warrant. But, apart from that, one would be hard-pressed to find a template of a Bill of Exchange. Let alone use one.

We tried to explain this to the client`s bank and suggested that it replaced the BoE for a promissory note. But the bank was inflexible.

At the end of the day, the solution was to use a Bill of Exchange in which the drawer drew on himself, payable to his own order. That is to say, we have used the Bill of Exchange as if it were, effectively, a promissory note (since there was no third-party acting as a payee).

This solved the crisis, in theory. However, the template used by my client had a blank field that should be filled in with the information of a Brazilian bank, who would, under ideal conditions, be the payee of the BoE.

The field was filled in with the name of the buyer’s bank, but without many specific details about the account. Most importantly, it didn`t contain the banks written acceptance.

This is a curious fact. Obtaining the acceptance of a Brazilian bank to a Bill of Exchange is almost impossible. It is only practicable in large transaction (such as the construction of a stadium). And, to achieve that, the bank will ask for a great deal of counter guarantees from the drawer. Lawyers will review it for weeks, etc.

This is not something that is available to a regular wholesaler or small-business owner.  “Normal” people, so to speak, will use cheques.

This specific aspect of the Brazilian bank system will play a part in the story soon.

Well, after the BoEs have been signed, the client wished us to mail it to Europe, so that it could keep it in his safe.

But then another aspect of the infamous “Brazilian Cost” (the overall name for the small but persistent setbacks that haunt people who do business here) presented itself: the postal service and the courier services working in Brazil (DHL, FedEx, etc.) refused to transport the bill, unless we hired insurance. The cost of the insurance was about 15 thousand dollars.

So, the client bought a plane ticket and came here to pick them up. And that was it.

A couple months later, when the payment of the Bills was due, the Brazilian buyer asked to redeem the hard copies, so that he could make the payment.

At this point, my client told me not to worry. After all, the Bills of Exchange had been mailed (without insurance) to the client`s bank address in Brazil.

I was truly shocked to hear that.

It seems that someone in my client`s financial department just followed the standard procedure they used with other European clients and maild the Bills to the buyer`s bank, expecting the bank to pay it.

The problem is that this procedure is not even conceivable in Brazil. Mainly because Brazilian banks do not act as payees for Bills of Exchange. But also, because nobody in Brazil uses courier or mail to transfer negotiable instruments. They are always closely watched and transferred hand to hand, accompanied by a receipt of some sort.

Well, the person who signed for the delivery of the notes was a common employee of the bank, maybe a security guard or an intern, who used only his first name (which is usual). We couldn`t identify him.

After several phone calls and visits to the bank, I finally spoke to the person who handled the Bills. They ended up being directed to the foreign exchange desk, since they were written in English and “looked like an international thing”.

The person in the forex desk told me, plainly: “I kept it for a few days, then threw it in the trash bin”.

And, just like that, the BoEs were history.

Luckily, the agreement allowed us to receive payment even without the notes.  But the lawyers of the buyer demanded us to draft a series of documents, voiding the original Bill.  The payment was delayed for months, until we could formally prove that the Bill were destroyed.


The point is: Brazil is just like the rest of the world, but different. Try to adapt your business to the Brazilian system. Things will be easier this way.

sábado, 3 de junho de 2017

The fastest way to have a Brazilian company

Incorporating a company in Brazil takes time. In average, 3 months (for details about incorporation ,please see this post).

I have tried to speed up this process, but without much success. It depends on several independent things: availability of a translator, public hollidays, courier delivery, etc. 


Indeed, this is one of the aspects of Brazilian bureacracy and lack of competitivity. Each step of the task is slightly inneficient. Combined, they slow down the rythm of business. 


When the project includes a Brazilian partner, this hindrance does not matter much, because he will be expecting it and the plans would already have counted for the delay. 


But when the project is totally controlled by foreign parties, this kind of time is essentially counted as a waste. 


I have been experimenting with a system that is less safe, legally speaking, but that can be used to conduct business at a faster pace. Here it is: 


a) I will incorporate a service company in Brazil, with two nominee partners and one nominee director. The company will have the same name desired by the investor;


b) the nominee partners and directors will enter into a quota/shares sales agreement with the future investor. This agreement will allow for a 60-day period in which the buyer (the investor) will be allowed to participate in the company`s management/


c) the investor will prepare the documents required to take possession of the quotas/shares;


d) meanwhile, the Brazilian company may enter into agreements with local partner. The company will refrain from issuing invoices, however. The invoices will be issued only after the foreign investors formally acquire the quotas. 



In short, the procedure is an acquisition of shelf-company. But with some additional agreements that ensure that the foreign investor will have control over the company even before they are formally the owners. 


This strategy is more expensive than a regular incorporation. There will be extra costs with the nominee partners, with additional agreements, etc.


The advantage is that it could allow the foreign investors to conduct business in Brazil within 03 weeks, instead of 12 weeks. 


Business will be limited, of course, and this strategy will work better with service company. Also, import/export operations will not be possible at first, because any Brazilian company that is to engage in international trade must first obtain a license (the "Radar").  


Even so, this strategy will allow investors to have a legal presence in Brazil much faster than usual. 




terça-feira, 30 de maio de 2017

Ahead of the Train - Dubai is Leading the Way for Blockchain Implementation

Dubai is actively implementing blockchain technology - is it only cat talk or could the plans actually to come to life?
An interesting article about Blockchain. 

Bitcoin and Blockchain are still not very common in Brazil. But there is vibrant group of supporters of the technology here, and they have been publishing a lot of content. 




Dubai is actively implementing blockchain technology - is it only cat talk or could the 
plans actually to come to life?
The government of Dubai is actively backing the initiatives on implementation of blockchain
 technology in banking and other spheres of life. The strategy seems bright enough, however, it 
is mostly just plans for now.
Dubai authorities ambitiously state that they strive to make Dubai the first blockchain-backed
 government ever by 2020. Too good to be true?
More than Just Plans
The prospect seems real enough to believe it actually has a chance to be implemented. 
At least, many of the world leading experts think so.
According to J. Bradley Hall, Founder, Chairman and CEO at ICON CAPITAL Corp., 
a merchant bank with a portfolio of investments in digital currencies, payment systems, 
banking and gold trading in Dubai, “Dubai is an aspirational city, it is built on the vision of
 strong leadership.”


segunda-feira, 29 de maio de 2017

Guarantees and securities in Brazilian Law


Brazilian Law provides for wide array of guarantees and securities. Herein below, you will find a brief explanation of the main varieties.

1.         Endorsement (aval)

The endorsement is a personal guarantee of the payment of an instrument of credit. Under the endorsement, the guarantor promises to pay the debt in the event the borrower fails to do so. The creditor becomes invested in the power of collecting the debt from the guarantor or the borrower as soon as the instrument of credit becomes due.

The endorsement is a type of guarantee mainly used in instruments of credit (on the back of note, for example; or a personal endorsement made by the director of a firm). 

It is a very commong guarantee. 

2.         Surety (fiança)

It is a written obligation. It is a contract whereby the surety guarantees the fulfillment of the obligation of the debtor in the event the latter fails to do so. It also guarantees the payment of compensation or penalty for non-fulfillment of an obligation undertaken by the debtor.

The surety may be granted by individuals or legal entities, including banks, whereby the debtor hires a financial institution to act as guarantor of an obligation.

It is very common in rental agreements and in some kinds of loans.

3.         Bill of Exchange (letra de câmbio)

It is a Marketable title. It consists of a payment order by means of which an individual demands that another individual pays a certain amount to a third party. It comprises details such as payment, date and place to perform it.

This is the same Bill of Exchange used in the US and in Europe. However, in Brazil its use is very limited. Only markets where the players are used to it actually use it. Most people will prefer a Promissory Note (see below).

4.         Promissory Note (nota promissória)

An instrument of credit represented by an unconditional promise in writing between two parties, signed by one who agrees to pay on a certain date a certain sum of money to the other or the bearer of the promissory note.

The promissory note is more widely used in Brazil, in comparison with the Bill of Exchange.

5.         Commercial Pledge (penhor mercantil)

Commercial pledge is to have a commercial good ensuring the fulfillment of an obligation. It becomes valid with the transference of possession of the property of the good by the debtor to the creditor.

The pledge shall be in written form and is usually registered before the Registry of Deeds and Documents. 

This is not too common.


6.         Security deposit of instruments of credit (caução de títulos de crédito)

Derived from the commercial pledge, the security deposit of instruments of credit is a guarantee established over credits held by the guarantor.

In the security deposit, the object of the guarantee is the right of the guarantor represented by a negotiable instrument. Therefore, the need to guarantee demands the delivery of the instrument to the creditor, by means of an agreement executed between the parties.

Through the security deposit agreement, the creditor becomes able to exercise all the rights to the instrument of credit, but always on behalf of the debtor, ie, there is no transfer of the property of the instrument of credit.

This is a common kind of guarantee, since it is easy to manage.

7.         Trust receipt (alienação fiduciária)

The trust receipt operates by means of the transfer of ownership of a certain good to the creditor in order to secure the fulfillment of an obligation of the debtor, who maintains the direct ownership of the good, as depositary.

In this type of guarantee, if the debtor fails to settle the obligation at the due date, then the creditor may require action of search and seizure of the sold good, and after taking possession of such good, it may sell it to a third party and settle the outstanding debt.

This is more commonly used by banks, in lease and financing agreements.

8.         Antichresis (anticrese)

The antichresis grants the creditor the right of receiving the real property from the debtor and also the right to earn profits from such real property for the term the contract is in force.

This is rarely used.

9.         Mortgage (hipoteca)

A debt instrument, secured by the collateral of specified real estate property, that the borrower is obliged to pay back with a predetermined set of payments. Under Brazilian Law, mortgages must be registered before the Real State Registry. In the event the debtor fails to provide payment in the due date, the rights of ownership and possession over the real property are transferred to the creditor.

This is fairly used, especially in the financing of real estate.


quarta-feira, 24 de maio de 2017

'Manual on Petroleum Law in Brazil' - Book Launch | Brazilian Chamber of Commerce for Great Britain

'Manual on Petroleum Law in Brazil' - Book Launch | Brazilian Chamber of Commerce for Great Britain:



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Tratado de Extradição entre Brasil e Índia

Foi publicado hoje. Chamou minha atenção.



D9055: "Tratado de Extradição entre a República Federativa do Brasil e a República da Índia"



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TRATADO DE EXTRADIÇÃO ENTRE A REPÚBLICA FEDERATIVA
DO BRASIL E A REPÚBLICA DA ÍNDIA
A República Federativa do Brasil
e
A República da Índia
(doravante denominadas “as Partes”),
Desejando uma cooperação bilateral mais eficaz na supressão do crime por meio da extradição dos criminosos;
          Reconhecendo que são necessários passos concretos para combater o crime organizado transnacional e o terrorismo;
Desejando tornar mais efetivos os esforços de combate à impunidade; e
Respeitando os princípios da soberania, da não-interferência em assuntos internos de cada uma das Partes e as normas do Direito Internacional,
          Acordam o seguinte:
Artigo 1
Da Obrigação de Extraditar
            As Partes extraditarão qualquer pessoa que se encontre em seus respectivos territórios, contra quem exista um mandado de prisão, expedido por juiz competente, por um crime extraditável, ou que tenha sido condenada por crime extraditável no território da outra Parte, nos termos deste Tratado, tendo sido o crime cometido antes ou depois da entrada em vigor deste Tratado.
Artigo 2
Dos Crimes Extraditáveis
1. Um crime será extraditável se, de acordo com as legislações de ambas as Partes, for punível com privação de liberdade ou prisão por um período de pelo menos um ano, ou com pena mais severa.
2. Se a extradição for solicitada para o cumprimento de sentença imposta na Parte Requerente, a duração do que resta a cumprir da sentença deverá ser de pelo menos um ano.
3. Um crime também será considerado extraditável se envolver tentativa ou associação para cometer, ajudar ou incitar a cometer crime, ou cumplicidade anterior ou posterior ao crime descrito no parágrafo 1.
4. Para os propósitos deste Artigo, um crime será considerado extraditável:
a) quando for solicitada a extradição de uma pessoa por crime contra legislação relativa a matéria tributária, alfandegária, cambial, de lavagem de dinheiro ou outros assuntos financeiros. A extradição não será denegada mediante alegação de que a legislação, da Parte Requerida não impõe o mesmo tipo de imposto ou taxa, ou não contém regulamentos do mesmo tipo que os da legislação da Parte Requerente no tocante a impostos, taxações, alfândega ou câmbio;
b) independentemente de a legislação da Parte Requerente classificar o crime na mesma categoria ou descrevê-lo com igual terminologia.
5. Se a extradição foi concedida para um crime extraditável, também o será para qualquer outro crime especificado no pedido, mesmo que a pena para esse tenha duração menor que um ano de privação de liberdade ou prisão, desde que todas as outras condições para a extradição sejam cumpridas.
Artigo 3
Dos Crimes Compostos
De acordo com o presente Tratado, poderá ser concedida a extradição para crime extraditável ainda que a conduta, parcial ou integral, da pessoa procurada tenha ocorrido na Parte Requerida, e se, de acordo com as leis desta Parte, a referida conduta e seus efeitos ou seus efeitos intencionais, como um todo, forem considerados cometimento de um crime extraditável no território da Parte Requerente.

terça-feira, 23 de maio de 2017

Power of Attorney for setting up a company in Brazil – new rules

In order to incorporate a company in Brazil, the foreign investor must appoint a local representative who lives in Brazil.

Traditionally, this representative was required to have powers to receive court summoning and to answer to any civil subpoenas directed at the foreign investor.

This makes sense under Brazilian procedural law, that puts a lot of focus on making sure that respondents will be properly summoned to present his defence in administrative or judicial procedures. Rulings “in absentia” are exceptional.  By requesting the nomination of a Brazilian resident as representative of the investor, Brazilian authorities would always have someone close enough to be summoned by ordinary means (without the need for international communications between courts, etc.).

This is the basic idea.

Now, since Brazil is a very bureaucratic place, people soon noticed that is would be a waste of time to issue a one-line PoA, considering that several other actions also require a power of attorney. For example: registration of the investment before the Brazilian Central Bank, clearance of foreign currency exchange agreement, etc.

Not to mention that any alteration to the articles of the company, such as increase in equity or appointment of new directors, would also require the investor to sign the documents himself, or to name a proper representative in Brazil with powers to do so.

All things considered, a proper PoA would have 3 pages and a LOT of very specific powers.

Now, this “excess” of powers has contributed to a problem. Brazilian courts started to consider that this all-powerful attorney would act, in practice, as a company director. Thus, labour and tax courts started to redirect debt collection suits to the Brazilian representative, whenever the company didn`t have enough assets to pay for the debts.

This situation, albeit technically illegal, has persisted for some time.

Recently, the Brazilian Revenue Service has tried to make the representative`s personal liability official. It issued an administrative ruling stating that any foreign company looking for enrolment before the national taxpayer`s registry (the famous CNPJ) must name a local representative with full powers to manage the investor`s assets in Brazil.

By choosing these word, the Brazilian Revenue Service made clear that the local representative will be considered a kind of local manager, not only a representative able to receive summoning.

Please notice that the enrolment with CNPJ is one of the first steps required in order to incorporate a new company in Brazil, in case the foreign investor is a corporate entity (not an individual).  Therefore, there is no way around this requirement.

And this is not the only recent change.

The federal body responsible for standards in corporate regulation issued new guidelines in 2017. They include a provision requiring that all powers of attorney from foreign investors must not have a time limit. This is to say, they must be valid until a formal cancellation is filed before the Commercial Registry.

The two alteration, combined, result in a local representative that:

a)    Has powers to manage the investor`s assets in Brazil (to control the company);
b)    Is liable for company`s debts, since he will be considered a sort of director;
c)    Has power for an unlimited period of time, until he gives up the job or until his PoA is formally cancelled.

The situation is awkward, to say the least.

It has forced the new PoA documents to become even longer. Now they must include:

a)    Provisions for cancellation;
b)    Protection against tax and labour liability;
c)    Restrictions on powers, to prevent the representative from “taking over” the company.

So, there is little chance you will find a good template for a PoA, readily usable.




domingo, 21 de maio de 2017

Branch or subsidiary in Brazil?

Here is part of an email exchange with a potential client. 

We were discussing the differences between having a branch in Brazil or incorporation a new company, owned and controlled by a foreign entity. 

  • What is the procedure to create a branch. What has changed lately?
​The branch (filial) requires express approval by the Federal Government. This is not a new procedure. The approval has been required for decades. 

The changes in procedure are regarding the new model of power of attorney that must be used. But this is a relatively small change.  

  • How much time does the special approval take (on top of the usual time for incorporation of a new company)?
​Between 40 to 60 days. ​
 

  • How could a new company be controlled by a foreign investor?
​The procedures for incorporation of a new company with foreign partners are, broadly speaking, the same procedures required to open a regular Brazilian company, with Brazilian owners. Therefore, we will avoid the need for Federal approval, which is part of the process of creating a branch.

The new company would be owned and controlled by the Swiss company. It would also need another partner, which can be another Swiss company, a Swiss investors or a Brazilian investor. 

Please notice that the new company may be 100% owned by Swiss investors. There is no need for a Brazilian partner.

  • Is there any down side of using a subsidiary (new company) instead of a branch?
​Basically, no. ​
 
​The Brazilian entities would work just the same. Actually, a new company is subject to less government control and scrutiny than a branch. ​

  • Would it be legal for the investing company abroad and the new company in Brazil to conduct transactions and have financial ties?
​Yes. They would be subject to the exact same rules (transfer pricing rules, tax rules, etc.) that would apply over a transaction between an investing company and its branch in Brazil.

  • How long does it take to open a new company? 

​About 60 to 90 days, depending on the amount of documents to be translated. ​

quarta-feira, 12 de abril de 2017

Upcoming changes in purchase of land by foreigners

From my twitter feed;


The President's Chief of Staff Office in Brazil has just finished up a bill that frees the purchase and lease of land to companies with foreign control, without setting area limits as always defended by the forestry sector and farm caucus in Congress. The project is ready for voting in the Chamber of Deputies floor, but there is still a dispute among deputies of President Michel Temer’s allied base about who will sponsor the bill. In the text to which Valor had access, foreign companies or citizens are prevented from owning or leasing together more than 25% of a municipality’s territory. And it forbids foreign companies or persons of the same nationality from owning land that accounts for more than 40% of a city's territory. These rules are not valid if the foreigner marries a Brazilian citizen in communion of goods. There is still no date for the vote.