The National Monetary Council (“CMN”) published, on September 24, 2026, Resolution No. 5,343 (“CMN Resolution 5,343”), which amended Resolution No. 2,907 of November 29, 2001 (“CMN Resolution 2,907”), governing the organization and operation of credit receivables investment funds (fundos de investimento em direitos creditórios) and funds of funds investing in credit receivables investment funds (collectively, “FIDCs”).
As a result of the amendments introduced by CMN Resolution 5,343, as of October 13, 2026, FIDCs will be prohibited from investing, directly or indirectly, in rights or expectations of rights arising from lawsuits or arbitral proceedings until the corresponding credit has become liquidated, certain and enforceable on a definitive basis.
In the case of lawsuits, these requirements will be deemed met when all of the following conditions are satisfied: (i) the decision recognizing the right in the merits phase has become final and unappealable; (ii) the decision issued in the liquidation phase, where required to determine the amount owed, has become final and unappealable; and (iii) the statutory period for filing an objection to the enforcement of judgment (impugnação ao cumprimento de sentença) or a motion to stay execution (embargos à execução) has elapsed without any such filing or, if filed, the decision ruling on it has become final and unappealable.
With respect to arbitral proceedings, all of the following conditions must be satisfied: (i) a partial or final arbitral award has been rendered which, alone or together with other awards issued in the proceeding, recognizes the right and determines the amount owed; and (ii) the period for filing an action to set aside the award, as provided for in Article 33, paragraph 1, of Law No. 9,307 of September 23, 1996, has elapsed without such action being filed or, if filed, the decision dismissing it on the merits or terminating it without a ruling on the merits has become final and unappealable.
The restriction also covers indirect investments, that is, investments made through structures, transactions and financial products that allow the FIDC to capture the risks and rewards associated with these rights, including securities and contractual instruments linked to them, units of funds and other investment vehicles holding exposure to these assets, as well as derivative instruments having such rights or instruments as their underlying asset.
The new rules do not extend the prohibition to existing holdings, so FIDCs already in operation may continue to hold assets previously acquired.
Nevertheless, as of January 4, 2027, FIDCs with exposure to this type of credit receivables must comply with a minimum governance and transparency regime, which comprises: (i) pricing these credits using a consistent methodology that is auditable by third parties and that cannot rely solely on internal assumptions of the administrator, the manager or the advisor; (ii) updating the value attributed to each credit whenever a relevant procedural event affects its prospects of recovery or its amount; (iii) submitting the procedures described in items (i) and (ii) to review by the independent auditor; and (iv) publishing, at least monthly and in a structured, standardized electronic format that is comparable across periods, a minimum set of data on these credits, covering: (a) the identification of the fund, the administrator and the manager, with their respective CNPJ (Brazilian taxpayer ID) numbers; (b) the originating lawsuit or arbitral proceeding, with the competent court or arbitral institution; (c) the parties involved in the assignment and their related parties, the date and instrument of assignment, and any prior assignments known to the administrator; (d) the amount of the credit and the portion held by the fund, where ownership is partial; and (e) for credits against public entities, the breakdown of the portfolio by debtor entity.
CMN Resolution 5,343 can be accessed here.
For further information, please contact the Financial and Capital Markets team at FreitasLeite Advogados.
