Do bail-in no Brasil: reorganização societária e patrimonial da instituição financeira em crise

Abstract

Considering that Brazil has committed to the Financial Stability Board (FSB) to adopt bail-in in order to increase the financial sector stability and to enable a fast and orderly reaction to financial crisis through the restructuring of systematically relevant institution’s liabilities, allowing its recovery or its liquidation, this dissertation legally analyzed the possibility of the adoption of bail-in by the Brazilian State, in particular seeking to verify to what extent to adopt it, the Brazilian legislation on the insolvency of financial institutions should be reformed. In order to answer this question, it was sought to unveil the meaning of the word bail-in, having been verified that it is not equivalent to a legal category, but to several measures, such as the extinction, reduction, transfer and conversion of credit rights and shares of entities in crisis, in a way that the shareholders and creditors are the ones that should borne the losses of the entity rather than by the usage of public resources. The FSB presents specific requirements for the adoption of bail-in, such as the need to absorb losses by shareholders and creditors and the observance of the principle that no creditor should suffer more losses than those that would suffer if the liquidation of the entity were determined. However, the FSB also permits that the jurisdictions modulate the adoption of bail-in, deciding which rights are eligible and the order in which they will be affected. It was also investigated whether the measures that conform the bail-in are in accordance with the Brazilian constitutional text. By means of normative exegesis and bibliographical revision, the descriptive and analytical methodology was used for the study of the documents published by the FSB, of the Directive 2014/59/EU, of Law nº 11/2015, of the Brazilian laws in force concerning the theme, as well as articles, books, thesis and dissertations. The propositive part was used to conclude that, due to the constitutional principles of free association, protection of private property and due to the principle of legality, for Brazil to adopt bail-in, it will be necessary to enact a new law or to promote a reform of the legislation in force, including in Brazilian regulation the measures that conform the application of bail-in. The parameters of its application must be justified by the principle of public interest and modulated according to the requirements of adequacy and of necessity, in the face of the principle of proportionality, otherwise its implementation could be considered as unconstitutional.