Resolution No. 4,662 of the National Monetary Council (CMN), issued on May 25 of this year, provides for the requirement of a bilateral margin of guarantee on transactions with derivative financial instruments carried out in Brazil or abroad by financial institutions and other institutions authorized to operate by the Central Bank of Brazil (Bacen).

The new rules converges with the improvements applied to the derivatives market since the global financial crisis of 2008 and with the recommendations by the Basel Committee on Banking Supervision and the International Organization of Securities Commissions (IOSCO) for transactions with derivatives conducted in over-the-counter markets.

Resolution No. 4,662/18 does not apply: (i) to derivative transactions settled through an entity that intervenes as a central counterparty, if that entity: a) is a clearing house and a clearing and settlement service authorized by Bacen, in accordance with Law No. 10,214/01 and the regulations in force; b) is recognized as qualified by Bacen, pursuant to Circular No. 3,772/15; or (c) complies with the rules that are in accordance with the principles established by the Committee on Market Payments and Infrastructure (CPMI) and by IOSCO; (ii) to derivative contracts with delivery of a physical commodity, except for gold; and (iii) transactions carried out within the scope of the Brazilian foreign exchange market dealt with in Resolution No. 3,568/08.

According to the new resolution, financial instruments that possess all of the following characteristics are derivatives: (i) variable market value as a result of changes in a certain interest rate, price of a financial instrument, commodity price, exchange rate, price index or rate, credit rating or index, or other similar variable, provided that, in the case of a non-financial variable, it is not specific to one of the parties to the contract ; (ii) no or a small initial net investment in relation to the value of the contract; and (iii) settlement {liquidation} carried out on a future date.

On the other hand, the following shall not be considered "hedged transactions": (i) derivative financial instruments included in the portfolio of assets of a Real Estate Guarantee, as referred to in Resolution No. 4,598/17; (ii) derivative financial instruments between institutions that are members of the same prudential conglomerate; (iii) forward contracts for currencies with physical settlement (FX forward); and (iv) physical currency swap contracts (FX swap).

The requirements of the initial margin and the variation margin established in the context of derivative transactions must be observed both by the "covered institutions" and by the "covered counterparties".

Covered institutions are defined as institutions authorized to operate by the Central Bank that, individually or jointly with the other entities that are part of their operating group, average aggregate notional value of derivative transactions higher than R$ 25 billion. Covered counterparties are defined by the rule as: a) the covered institution and any entity that is part of its operating group, as defined in the rule; and b) any other entity that has, individually or jointly with the other entities that are part of the operating group to which it belongs, a notional average aggregate value of derivative transactions in excess of R$ 25 billion.

By seeking to ensure a high level of security for derivative transactions, the rule also provides general prohibitions on the guarantees established in the scope of these transactions. One of these prohibitions applies to the sale or re-use of financial instruments received as collateral for any other purpose, including the creation of a guarantee of new transactions by the receiving counterparty. In addition, it is mandatory to segregate the financial instruments used as the initial margin guarantee for the assets of the guarantor and the guarantee, thus ensuring their timely availability in the event of insolvency, bankruptcy, or dissolution by the competent authorities.

In order for all players involved in transactions of this nature to be able to adapt to the new rules, they will only be applied to covered transactions as of September 1, 2019.