sc5 meeting in rio de janeiro

SC5 Meeting in Rio de JaneiroSC5 Meeting in Rio de Janeiro

Funds Governance, Funds Governance, management of conflicts of management of conflicts of interests and distribution in interests and distribution in

BrazilBrazil

ANANBIBIDD

Marcelo Giufrida08/11/2005


33%AUM/GDP

12thWorld relative position

4.800Number of funds

2005Investment Funds indicators(in US$ Billions)

290AUM

Brazil – Economic outlook and industry statisticsBrazil – Economic outlook and industry statistics

59.844Total International Reserves – 2005

33.666Trade Balance – 2004

93.325Time deposits

67.677Saving deposits

353Number of Companies

366.85Stock market capitalization

9.40%Unemployment rate

6.57%Inflation rate (%)

3,326.21GDP per capita – 2003

4.9%Real GDP growth (%) - 2004

603.99GDP

180Population (millions)

2005Key Economic Indicators(in US$ Billions)


AgendaAgenda

• Funds regulation in Brazil – recent evolutionFunds regulation in Brazil – recent evolution

• Funds GovernanceFunds Governance

• Management of conflicts of interestsManagement of conflicts of interests

• DistributionDistribution

• Self-regulation reinforcementSelf-regulation reinforcement


Instruction CVM 409Instruction CVM 409Unification of rules pertaining to funds incorporation, management, Unification of rules pertaining to funds incorporation, management, operation and information disclosure, the competence thereto to be solely operation and information disclosure, the competence thereto to be solely held by CVM. The new regulation:held by CVM. The new regulation:

• envisages the transparency and information clarity to the investor.envisages the transparency and information clarity to the investor.

• standardization of the information disclosure to the investors.standardization of the information disclosure to the investors.

20042004

Transfer of the regulating/supervising competence from the Central Bank Transfer of the regulating/supervising competence from the Central Bank of Brazil to CVM.of Brazil to CVM.

2002200220042004

Funds regulation in Brazil – recent evolutionFunds regulation in Brazil – recent evolution

Unified controls by CVM triggers governance increase.Unified controls by CVM triggers governance increase.

Expertise regarding the regulation and supervision of publicly-held Expertise regarding the regulation and supervision of publicly-held companies adds value to the funds’ regulation.companies adds value to the funds’ regulation.

Is should be pointed out that the industry transition to a new regulatory Is should be pointed out that the industry transition to a new regulatory framework, and under a new regulating authority, has occurred smoothly framework, and under a new regulating authority, has occurred smoothly enough almost not to be perceived by the investors.enough almost not to be perceived by the investors.

There has been an increase in the information transparency – portfolios are There has been an increase in the information transparency – portfolios are disclosed in CVM’s website.disclosed in CVM’s website.

Increased hiring by CVM determines more efficient supervision.Increased hiring by CVM determines more efficient supervision.

20052005


AgendaAgenda







““a framework for the organization and a framework for the organization and operation of CIS that seeks to ensure that operation of CIS that seeks to ensure that CIS are organized and operated efficiently CIS are organized and operated efficiently and exclusively in the interests of CIS and exclusively in the interests of CIS investors, and not in the interests of CIS investors, and not in the interests of CIS insiders”insiders”

““SC5 agrees that, regardless of the SC5 agrees that, regardless of the structural model for CIS, CIS Governance structural model for CIS, CIS Governance must provide for the independent review and must provide for the independent review and oversight of the operations of the CIS.”oversight of the operations of the CIS.”

Funds Governance – IOSCO Definition and Funds Governance – IOSCO Definition and primary principleprimary principle


Efficient disclosureEfficient disclosure

Adequacy on accounting and valuationAdequacy on accounting and valuation

Reviewing and auditing standardsReviewing and auditing standards

Funds Governance – Main requirementsFunds Governance – Main requirements

To make sure that the risk-performance To make sure that the risk-performance equation is adequately managed as the major equation is adequately managed as the major role of CIS operators is primarily to execute role of CIS operators is primarily to execute investment strategies on behalf of well investment strategies on behalf of well informed investors while investors must be informed investors while investors must be able to select the desired level of risks and able to select the desired level of risks and potential rewards amid a reliable market potential rewards amid a reliable market environment.environment.


Funds Governance – Additional principlesFunds Governance – Additional principles

Supplementing and reinforcing the primary Supplementing and reinforcing the primary one:one:

CIS legal and regulatory frameworkCIS legal and regulatory framework – fiduciary – fiduciary obligations, disclosure and transparency, how to obligations, disclosure and transparency, how to lead with conflicts of interest.lead with conflicts of interest.

Internal controlsInternal controls – ensure investment strategies. – ensure investment strategies.

TransparencyTransparency – informing investors. – informing investors.

Market and Industry participantsMarket and Industry participants – strengthening – strengthening governance and best practices by means of an governance and best practices by means of an effective self-regulation.effective self-regulation.


Contractual Model – Depositary – “standard model”Contractual Model – Depositary – “standard model”CIS REGULATOR

UnitholdersManagement

CompanyDistributors

Depositary

CIS Auditors(g)

CIS

(i)

(a)

(b) (c)

(h)(i)

(i)(i) (i)

(i) (i) (f)(g)

(i)

(d)

(e)

(d)

(e) Duty of reporting and shared responsibility towards unitholders

(f) Oversight of CIS operations and safekeeping of assets

(g) Protection of CIS unitholders best interests

(h) Independent review of CIS key elements

(i) Global supervision of the CIS activities and of the respective key players aiming at the main goal of protecting unitholders best interests

(a) Placement of orders for subscription/redemption of CIS unit shares

(b) Inflow/outflow of money and issue/amortization of unit shares

(c) Day-to-day management of the CIS Portfolio

(d) Oversight of CIS management company and distributor activities, including the prevention of conflicts of interest

in white, the key factors to an adequate fund

governance


Contractual Model – Depositary – “Brazilian case”Contractual Model – Depositary – “Brazilian case”one additional figureone additional figure

Worldwide, there are generally three main kinds of players in Worldwide, there are generally three main kinds of players in connection with an investment fund’s operation: (i) portfolio connection with an investment fund’s operation: (i) portfolio managers, (ii) custodian entities and (iii) distributing entities.managers, (ii) custodian entities and (iii) distributing entities.

In the Brazilian model, however, there is additionally a In the Brazilian model, however, there is additionally a fund fund managermanager, such four functions to be carried out separately, , such four functions to be carried out separately, even if the companies are part of a single economic group: it even if the companies are part of a single economic group: it is deemed that the taking of truly independent courses of is deemed that the taking of truly independent courses of actions in connection therewith demand segregation between actions in connection therewith demand segregation between such departments.such departments.

Thus, the fund’s governance is not carried out by the portfolio Thus, the fund’s governance is not carried out by the portfolio manager, but, rather, by the fund manager or custodian manager, but, rather, by the fund manager or custodian entity. Even if the fund manager and portfolio manager entity. Even if the fund manager and portfolio manager belong to the same economic group, a whole set of legal belong to the same economic group, a whole set of legal requirement applies, aiming at reducing conflicts of interests requirement applies, aiming at reducing conflicts of interests possibilities, insofar portfolio management and fund possibilities, insofar portfolio management and fund management activities are separated.management activities are separated.


Funds Governance - Independent oversightFunds Governance - Independent oversight

FUND MANAGER

Service provider hired to manage

the portfolio according to the

investment policy provided

for in the relevant by-laws

Responsible for the fund. Hires and supervises the

service providers, looks after the

investors’ interests and is liable for the

fund with CVM

Keeps the fund’s assets in custody

and controls them. Sends fund’s information to both portfolio managers and fund managers

Responsible for the sales of the

fund’s unit shares.

This function can be carried out by the fund manageror by third parties hired by the fund

PORTFOLIOMANAGER CUSTODIAN DISTRIBUTORS

The separation of these two The separation of these two structures can entrust structures can entrust independent oversightindependent oversight


Contractual Model – Depositary – “a different approach”Contractual Model – Depositary – “a different approach”CIS REGULATOR

UnitholdersPortfolio ManagerDistributors

Custodian

CIS Auditors(g)

CIS

(i)

(a) (b)

(c)

(h)(i)

(i)(i) (i)

(i) (i) (f)(g)

(i)

(d)

(e)

(d)

(e) Duty of reporting and shared responsibility towards unitholders

(f) Oversight of CIS operations and safekeeping of assets

(g) Protection of CIS unitholders best interests

(h) Independent review of CIS key elements

(i) Global supervision of the CIS activities and of the respective key players aiming at the main goal of protecting unitholders best interests

(a) Placement of orders for subscription/redemption of CIS unit shares

(b) Inflow/outflow of money and issue/amortization of unit shares

(c) Day-to-day management of the CIS Portfolio

(d) Oversight of CIS management company and distributor activities, including the prevention of conflicts of interest

The Fund Manager is legally liable for the

service providers hired, and has a key role in the

fund’s governance

F.M.F.M.

F.M.

F.M.

F.M.

F.M.


Legal and self-regulation requirements - Legal and self-regulation requirements - II

There are regulatory requirements aimed at assuring segregation There are regulatory requirements aimed at assuring segregation and adequate governance, irrespective of the portfolio and adequate governance, irrespective of the portfolio management and fund management activities being carried out management and fund management activities being carried out within the same entity:within the same entity:

• Custody, fund management and portfolio management activities all Custody, fund management and portfolio management activities all depend on CVM’s authorization. CVM demands adequate technical, depend on CVM’s authorization. CVM demands adequate technical, operational and economic conditions in connection therewith, as well operational and economic conditions in connection therewith, as well as the appointment of a specific officer in charge for each such as the appointment of a specific officer in charge for each such activities, such officer to be held liable for occasional errors or activities, such officer to be held liable for occasional errors or irregularities in such services’ rendering.irregularities in such services’ rendering.

• Departments in charge of different areas within a single institution Departments in charge of different areas within a single institution must be segregated, thus granting restricted access to their files, and must be segregated, thus granting restricted access to their files, and must have controls allowing the identification of the people accessing must have controls allowing the identification of the people accessing confidential information.confidential information.

• The fund manager is responsible for overseeing the services The fund manager is responsible for overseeing the services rendered by third parties, thus being ultimately liable for them.rendered by third parties, thus being ultimately liable for them.


Disclosure requirements also contribute to better governance, Disclosure requirements also contribute to better governance, especially as follows:especially as follows:

• The fund unit share’s amount is calculated on a daily basis The fund unit share’s amount is calculated on a daily basis and widely disclosed. In some cases, the calculation is carried and widely disclosed. In some cases, the calculation is carried out by outside third parties, thus reinforcing the fund’s out by outside third parties, thus reinforcing the fund’s governance.governance.

• It is mandatory to disclose the portfolio’s composition on a It is mandatory to disclose the portfolio’s composition on a monthly basis, by means of a freely accessible foal in CVM’s monthly basis, by means of a freely accessible foal in CVM’s website, thus enabling the portfolio’s control and marking to website, thus enabling the portfolio’s control and marking to market.market.

Legal and self-regulation requirements - Legal and self-regulation requirements - IIII


There are also unitholders’ meetings, as an additional There are also unitholders’ meetings, as an additional governance instrument:governance instrument:

• The unitholders’ meetings are summoned by letter, and bear The unitholders’ meetings are summoned by letter, and bear powers to destitute the fund manager, portfolio manager or powers to destitute the fund manager, portfolio manager or custodian entity, as well as to modify the investment policy.custodian entity, as well as to modify the investment policy.

• The unitholders’ meetings are the sovereign instance to The unitholders’ meetings are the sovereign instance to deliberate on the replacement of the fund manager, portfolio deliberate on the replacement of the fund manager, portfolio manager or custodian entity.manager or custodian entity.

• Compared to the legal systems in which the company’s board Compared to the legal systems in which the company’s board has a governance duty, in Brazil such unitholders meetings has a governance duty, in Brazil such unitholders meetings may perform such role in a complementary manner.may perform such role in a complementary manner.

Legal and self-regulation requirements - Legal and self-regulation requirements - IIIIII


Additionally:Additionally:

• Funds distributed by third parties undergo the distributor’s Funds distributed by third parties undergo the distributor’s analysis, which, as a hired service provider, is entitled to analysis, which, as a hired service provider, is entitled to examine the fund’s portfolio and verify whether the by-laws’ examine the fund’s portfolio and verify whether the by-laws’ conditions and marking to market rules are being duly conditions and marking to market rules are being duly complied with.complied with.

• In Brazil there are also the self-regulation rules enacted by In Brazil there are also the self-regulation rules enacted by ANBID, which comprise an Investment Funds Code and a ANBID, which comprise an Investment Funds Code and a Custody Code, which provide for the segregation of such Custody Code, which provide for the segregation of such activities within a single institution, and vests ANBID with the activities within a single institution, and vests ANBID with the power to oversee its affiliate parties.power to oversee its affiliate parties.

Legal and self-regulation requirements - IVLegal and self-regulation requirements - IV


AgendaAgenda







General duty to act in the best interest of investorsGeneral duty to act in the best interest of investors::

• Fund managers must grant equal treatment to all their Fund managers must grant equal treatment to all their investors.investors.

• Portfolio managers must refrain from practices which may Portfolio managers must refrain from practices which may jeopardize the fiduciary relationship with their clients.jeopardize the fiduciary relationship with their clients.

• Conflicts of interests involving portfolio management Conflicts of interests involving portfolio management activities must be disclosed.activities must be disclosed.

• Segregation of portfolio-managing activities from other Segregation of portfolio-managing activities from other activities carried out by the institution is mandatory.activities carried out by the institution is mandatory.

•Departments’ segregation must be physical or at least very Departments’ segregation must be physical or at least very clearly defined as to facilities, equipment and file usage.clearly defined as to facilities, equipment and file usage.

Management of conflicts of interests in BrazilManagement of conflicts of interests in Brazil


Fund Managers obligations – review/oversight of the Fund Managers obligations – review/oversight of the service providersservice providers::

• Selection of directors, custodians and depositories who are Selection of directors, custodians and depositories who are favorable to the CIS operator.favorable to the CIS operator.

• Fund managers must check on the fund´s service providers Fund managers must check on the fund´s service providers (including the portfolio manager).(including the portfolio manager).

• Fund managers must assure that the expenses with service Fund managers must assure that the expenses with service providers shall not exceed the administration fee’s total providers shall not exceed the administration fee’s total amount provided for in the fund’s by-laws.amount provided for in the fund’s by-laws.

• The fund manager must cope with any fund’s advertising The fund manager must cope with any fund’s advertising expenses, including the prospectus elaboration.expenses, including the prospectus elaboration.



Restrictions and obligations related to the Portfolio Restrictions and obligations related to the Portfolio Management activitiesManagement activities::

• Dealings with the managed portfolio securities aimed Dealings with the managed portfolio securities aimed at generating brokerage revenues are forbidden.at generating brokerage revenues are forbidden.

• Granting of loans, down payments, or of any credit Granting of loans, down payments, or of any credit modalities using the managed resources is forbidden.modalities using the managed resources is forbidden.

• Managers must pass on to the funds’ portfolios any Managers must pass on to the funds’ portfolios any benefits or advantages derived of their duties and benefits or advantages derived of their duties and actions as such.actions as such.



Portfolio Manager as counterparties, guarantees, Portfolio Manager as counterparties, guarantees, Portfolio composition and related issuesPortfolio composition and related issues::

• Portfolio managers are forbidden to act as counterparties in Portfolio managers are forbidden to act as counterparties in transactions involving the managed portfolios, except if transactions involving the managed portfolios, except if expressly authorized to do so, or in the absence of discretion expressly authorized to do so, or in the absence of discretion over the portfolio, insofar as there is no previous knowledge over the portfolio, insofar as there is no previous knowledge of the relevant transaction.of the relevant transaction.

• Granting of any guarantees or co-obligation at the fund’s Granting of any guarantees or co-obligation at the fund’s expense or in the fund’s name is forbidden, and so is the use expense or in the fund’s name is forbidden, and so is the use of the fund’s resources to pay for the investors’ financial loss of the fund’s resources to pay for the investors’ financial loss insurance.insurance.

• Funds are forbidden to bear more than 20% of their net Funds are forbidden to bear more than 20% of their net worth in securities issued by the portfolio manager, fund worth in securities issued by the portfolio manager, fund manager or affiliate company, and are prohibited from manager or affiliate company, and are prohibited from acquiring shares issued by the fund manager.acquiring shares issued by the fund manager.



Portfolio Manager as counterparties, guarantees, Portfolio Manager as counterparties, guarantees, Portfolio composition and related issuesPortfolio composition and related issues::

• Funds are not entitled to hold more than 10% of their net Funds are not entitled to hold more than 10% of their net worth in securities or assets of a single company, its worth in securities or assets of a single company, its controlling shareholder, its directly/indirectly controlled controlling shareholder, its directly/indirectly controlled entities, or affiliate/under common control companies; in the entities, or affiliate/under common control companies; in the case of securities issued by financial institutions, its case of securities issued by financial institutions, its controlling shareholder, its directly/ indirectly controlled controlling shareholder, its directly/ indirectly controlled entities, or by affiliate/under common control companies, entities, or by affiliate/under common control companies, such limit is set at 20%.such limit is set at 20%.

• The funds’ investment policies must comprise clear The funds’ investment policies must comprise clear information on the maximum percentage to be invested (i) on information on the maximum percentage to be invested (i) on securities issued by the portfolio manager, fund manager or securities issued by the portfolio manager, fund manager or corporation affiliated with them; (ii) on investment funds corporation affiliated with them; (ii) on investment funds managed by the portfolio manager, fund manager or managed by the portfolio manager, fund manager or corporation affiliated with them; and (iii) on securities issued corporation affiliated with them; and (iii) on securities issued by a single company.by a single company.

• Activities’ segregation must also set a securities transaction Activities’ segregation must also set a securities transaction policy for negotiations carried out by the managing entities’ policy for negotiations carried out by the managing entities’ employees, directors and managers.employees, directors and managers.



AgendaAgenda







Distribution fees – TransparencyDistribution fees – Transparency

For the last few years, there have been in Brazil entities which For the last few years, there have been in Brazil entities which specifically engage in securities portfolio management activities, specifically engage in securities portfolio management activities, presenting more sophisticated products.presenting more sophisticated products.

As a consequence thereof, widespread distribution structures are As a consequence thereof, widespread distribution structures are gradually becoming relevant, in light of the market access they grant gradually becoming relevant, in light of the market access they grant to medium-sized investors.to medium-sized investors.

Moreover, one of the main outcomes thereof is the increase of Moreover, one of the main outcomes thereof is the increase of distribution relationships within the market, which may trigger distribution relationships within the market, which may trigger potential conflicts of interests in connection with the best possible potential conflicts of interests in connection with the best possible advice being provided to the investors.advice being provided to the investors.

In order to preserve such a broad securities’ distribution structure, In order to preserve such a broad securities’ distribution structure, which favors the investors, and, at the same time, avoiding potential which favors the investors, and, at the same time, avoiding potential conflicts of interests, ANBID has undertaken to self-regulate such conflicts of interests, ANBID has undertaken to self-regulate such aspects, upon the enacting of a transparency-oriented set of rules aspects, upon the enacting of a transparency-oriented set of rules regarding fee-sharing agreements.regarding fee-sharing agreements.


Distribution fees – Transparency Distribution fees – Transparency

A specific chapter on fee-sharing transparency was created in ANBID’s A specific chapter on fee-sharing transparency was created in ANBID’s Self-Regulation Code, aiming at distribution activities, which rules Self-Regulation Code, aiming at distribution activities, which rules provide for the avoidance of disloyal competition, and the duty to provide for the avoidance of disloyal competition, and the duty to disclose both the receipt of distribution fees and the possibility to disclose both the receipt of distribution fees and the possibility to charge differentiated fees from fund to fund.charge differentiated fees from fund to fund.

In so being, ANBID believes to have taken an important step in the In so being, ANBID believes to have taken an important step in the prevention of conflicts of interests, while envisaging the investors’ prevention of conflicts of interests, while envisaging the investors’ interest protection.interest protection.


Distribution fees – TransparencyDistribution fees – Transparency

ANBID’s Self-Regulation Code:ANBID’s Self-Regulation Code:

““Art. 14 - The distribution agreements executed by Participating Art. 14 - The distribution agreements executed by Participating Institutions shall comprise a provision setting forth the disclosure, Institutions shall comprise a provision setting forth the disclosure, upon any means deemed fit by the Participating Institutions, as to upon any means deemed fit by the Participating Institutions, as to the following matters, as the case may be:the following matters, as the case may be:I - possibility of receiving a distribution fee from the funds in I - possibility of receiving a distribution fee from the funds in which their clients invest, either directly or on their account and which their clients invest, either directly or on their account and order; ororder; orII - possibility of remuneration from the funds receiving the II - possibility of remuneration from the funds receiving the investments, in the case of funds of funds; andinvestments, in the case of funds of funds; andIII – in both cases, disclose that such remuneration may be III – in both cases, disclose that such remuneration may be different from fund to fund.”different from fund to fund.”


AgendaAgenda







“Above all, self-regulation promotes integrity within the markets and among its players. Moreover, it is an effective regulation method, since self-regulation organizations are familiar with the increasingly complex nature of the industry.”IOSCO - Model For Effective Regulation (2000)

In IOSCO’s 30th Annual Conference, ANBID has been admitted as an affiliate member, with the support of CVM, and shall be participating in IOSCO’s Self-Regulation Committee

Self-regulation - IOSCO’s point of viewSelf-regulation - IOSCO’s point of view


ANBID’s Self -Regulation – main focusANBID’s Self -Regulation – main focus

Commitment to complying with the General Principles of the Code:

• By respecting the fund’s mandate.

• By acting prudently and diligently.

• By avoiding acts wich may negatively impact the fiduciary relationship.

• By avoiding practices denigrating the Fund Industry’s reputation.


•1999 •2000 •2002 •2004

Self-Regulation – TimelineSelf-Regulation – Timeline

CUSTODYInvestment Funds

Capital Markets

CERTIFICATION

ANBID – Program Sequence and initiatives - I ANBID – Program Sequence and initiatives - I

Initiatives - Investment Funds:

Regulation of prospectusesDescription of the fund’s principal characteristics, not only their objectives in terms of return, but also regarding their risks.

Prospectuses x By-lawsBy-laws – formal instrument constituting the fund (legal and technical terms). Prospectuses – ANBID triggered the “Standardization” of prospectuses, thus helping the market to implement the mandatory preparation of prospectuses in Brazil, with a description of the fund as a financial product, giving greater disclosure.


Publicity and Disclosure of Investment Funds PerformanceCreation of minimum standards for fund announcements, fostering fair competition among the market’s participants.To foster fair competition among industry participants. To make the limits on investment decisions based on fund performance transparent.

Marking to MarketSelf-regulation and control of Marking to Market, with the reconciliation of management with investment policy.Since January 2005, as per ANBID’s self-regulatory rules, the registration of the marking to market manual with ANBID is mandatory, and so is the disclosure of the manual’s simplified version in the relevant institution’s website. ANBID receives such manuals, and, by means of statistic filters, oversees the industry.

ANBID – Program Sequence and initiatives - IIANBID – Program Sequence and initiatives - II


ProspectusesProspectuses• Since 2000 there has been the filing of 8.274 funds at Since 2000 there has been the filing of 8.274 funds at ANBID, encompassing approximately 97% of the industry.ANBID, encompassing approximately 97% of the industry.• During such a period, there have been 5.102 prospectuses’ During such a period, there have been 5.102 prospectuses’ analysis, and 3.009 modifications were requested (Anbid analysis, and 3.009 modifications were requested (Anbid acts with an educational approach – standardization).acts with an educational approach – standardization).

PublicityPublicity• Since 2004, 103 advertising pieces have been analyzed by Since 2004, 103 advertising pieces have been analyzed by ANBID, 46 letters dispatched requesting participants to ANBID, 46 letters dispatched requesting participants to revise their practices, 5 proceedings initiated/non pending.revise their practices, 5 proceedings initiated/non pending.

Marking to MarketMarking to Market• Since 2005, 45 manuals were filed with ANBID, generating Since 2005, 45 manuals were filed with ANBID, generating 53 letters requesting modifications, 48 portfolio monitoring 53 letters requesting modifications, 48 portfolio monitoring meetings were held, 3 proceedings initiated/non pending.meetings were held, 3 proceedings initiated/non pending.

General PrinciplesGeneral Principles• 1 proceeding initiated/non pending.1 proceeding initiated/non pending.

Self-regulation efforts – main resultsSelf-regulation efforts – main results

sc5 meeting in rio de janeiro

Documents

cis governance

agenda funds regulation

number of funds

interests of cis investors

funds incorporation

investment funds indicators

new regulation

operation of cis