2012 Investment Climate Statement - Brazil
Openness to, and Restrictions Upon, Foreign Investment
Brazil is open to and encourages foreign investment. Foreign direct investment (FDI) into Brazilwas expected to reach approximately USD 63billion in 2011, a 30 percent increase over 2010 (see final page for a historical chart of FDI inflows). Brazil is consistently the largest FDI recipient in Latin America and typically receives close to half of all South America’s incoming FDI. The United States is a major foreign investor in Brazil; according to the Central Bank of Brazil, the United States had the highest stock of FDI into Brazil as of 2010, with $104 billion.FDI is prevalent across Brazil’s economy, although certain sectors -- notably media and communications, aviation, transportation and mining -- are subject to foreign ownership limitations. While Brazil is generally considered a friendly environment for foreign investment,burdensome tax and regulatory requirements exist. In most cases, these impediments apply without discrimination to both foreign and domestic firms. The Government of Brazil (GOB)generally makes no distinction between foreign and national capital.
Supported by strong domestic demand, global demand for commodity exports, a growing middle class, and prudent macroeconomic policies in recent years, Brazil weathered external crises of the global economy better than most major economies, emerging with 7.5 percent GDP growth in 2010 and an estimated 2.9 percent growth in 2011. Independent analysts’ predictions anticipate that growth in 2012 will also settle around 3 percent.Brazil’s president, Dilma Rousseff, has completed her first full year in office, and has, by and large, maintained the economic policies enacted by the previous administration.
Banking:Brazil’s banking sector includes significant foreign investment and representation. While the Constitution of 1988 technically forbids new or expanded foreign investment in the banking sector, the vast majority of requests for entry or expansion have been approved on a case-by-case basis.Recent Central Bank figures report that, in 2011,foreign-owned banks comprisedfourof the top ten banks operating in Brazil in terms of total assets, representing 13.2 percent of total financial assets less brokerage.
Insurance:Since 1996 the insurance sector has been open to foreign investors with most major U.S. firms represented via joint venture arrangements. In 2007, Complementary Law 126 was published in Brazil eliminating the previous state monopoly on reinsurance through the government-owned Brazil Reinsurance Institute (IRB), which had been in place since 1939. In December 2010 and March 2011, however, the Brazilian National Council on Private Insurance (CNSP) effectively rolled back market liberalization through the issuance of Resolutions 225 and 232, which disproportionately affect foreign insurers and reinsurers operating in the Brazilian market. Please refer to the section on “Recent Changes and Concerns in Legislation Regulating Business” for more details.
Privatization:Foreign investment has played a significant role in Brazil’s privatization programs. From the early 1990s through 2009, Brazilcompleted USD87.8 billion worth of privatizations, and another USD18.1 billion in related debt transfer off the government accounts. Foreign investment accounted for about USD42.1 billion of the privatizations. Of this foreign investment, U.S. investors accounted for one third or USD 14.0 billion.In August 2011,the Government of Brazil held its first airport concession auction for the airport that services the city of Natal, Rio Grande do Norte state. The winning bid was R$170M (about USD 90M).Additional airport concession auctions for three larger airports, Brasilia; Viracopos (Sao Paulo); and Guarulhos (Sao Paulo), are scheduled for February 2012. Additional auctions of airport infrastructure concessions areexpectedin2012-2015.
Ownership Restrictions:A 1995 constitutional amendment terminated the distinction between foreign and local capital in general, but there are laws that restrict foreign ownership within some sectors, notably media and communicationsand aviation.
Foreign investment restrictions remain in a limited number of other sectors, including highway freight (20 percent) and mining of radioactive ore. Foreign ownership of land within 150 km of national borders remains prohibited unless approved by Brazil's National Security Council. In October 2009, the Chamberof Deputies approved legislation that would further restrict foreign ownership of land along Brazil’s borders and within the Amazon. The proposed legislation still requires passage by the Brazilian Senate, followed by presidential approvalbefore it can become law.
On December 9, 2011, the National Land Reform and Settlement Institute (INCRA) published a set of new rules covering the purchase of Brazilian land by foreigners. These rules follow an August 2010 Attorney General’s opinion that similarly limited foreign agricultural land ownership. Under the new rules, the area bought or leased by foreigners cannot account for more than 25% of the overall area in its respective municipal district. Additionally, no more than 10% of the land in any given municipal district may be owned or leased by foreign nationals from the same country. The rules also make it necessary to obtain congressional approval before large plots of land can be purchased by foreigners, foreign companies, or Brazilian companies with the majority of shareholders from foreign countries. These restrictions and the accompanying uncertainty of how they will be applied in practice may be discouraging U.S. investment in Brazilian land.
Media: Open broadcast (non-cable) television companies are subject to a regulation requiring that 80 percent of their programming content be domestic in origin. Foreign cable and satellite television programmers are subject to an 11 percent remittance tax; however, the tax can be avoided if the programmer invests 3 percent of its remittances in co-production of Brazilian audio-visual services. President Dilma Rousseff signed into force a new law on September 12, 2011 covering the subscription television market, including satellite and cable TV. Under the new law, telecom companies will now be allowed to offer television packages with their service. The law also removed the previous 49% limit on foreign ownership of cable TV companies. New content quotas will be introduced that will require every channel to air at least three and half hours per week of Brazilian programming during primetime. Additionally, one-third of all channels included in any TV package will have to be Brazilian. The regulations covering the quotas are expected to be finalized by March 2012.
Aviation: The Government of Brazil currently restricts foreign investment in domestic airline companies to a maximum of 20 percent. A bill pending in the Chamber of Deputies (PL6716) would increase that ceiling to 49 percent.
On March 19, 2011, representatives from both governments signed an Air Transport Agreement (ATA) that will lead to an Open Skies relationship between the United States and Brazil, eliminating numerical limits on passenger and cargo flights between the two countries. The agreement will take effect in October 2015 if it is approved by Brazil’s Congress before then. Both parties also signed a Memorandum of Consultation (MOC) that phases in increases in flight limits in the meantime.For example, in October 2011, the maximum number of weekly passenger flights was increased by 28 for U.S. airlines and by 28 for Brazilian airlines, and the maximum number of cargo flights rose by 14 for each country’s airlines. Additional increases will take place in October 2012, 2013, and 2014.
Investment Goals: In August 2011, Brazil announced a new industrial policy, Plano Brasil Maior (the “Bigger Brazil” plan), to support domestic producers, encourage investment, and spur innovation. The plan, covering the period of 2011-2014, sets targets for investment spending to reach22.4 percent of GDP by 2014, upfrom a 2010 baseline of 18.4 percent. Private investment in R&D is to reach 0.90 percent of GDP by 2014, up from the 2010 figure of 0.59 percent.Brasil Maior also sets targets for making the economy more energy efficient, reducing the amount of petroleum used per unit of GDP by 9%, and nearly tripling broadband internet penetration from 13.8 million households in 2010 to 40 million households in 2014.
In October 2011, the OECD released an Economic Survey for Brazil which includes sections on regulatory environment, licensing, sectoral analysis, and impediments to investment. The Survey recommends continued fiscal consolidation, increased investment and savings, and additional infrastructure spending, all while incorporating the principles of social and environmental sustainability. The report can be found at: http://www.oecd.org/dataoecd/12/37/48930900.pdf.
Selectedindicators from reputable third party sources:
TI Corruption Perceptions
Heritage Economic Freedom
World Bank Ease of Doing Business
Conversion and Transfer Policies
There are few restrictions on converting or transferring funds associated with a foreign investment in Brazil. Foreign investors may freely convert Brazilian currency in the unified foreign exchange market wherein buy-sell rates are determined by market forces. All foreign exchange transactions, including identifying data, must be reported to the Central Bank. Foreign exchange transactions on the current account have been fully liberalized.
Foreigners investing in Brazil must register their investment with the Central Bank within 30 days of the inflow of resources to Brazil. Registration is done electronically. Investments involving royalties and technology transfer must be registered with Brazil’s patent office, the National Institute of Industrial Property (INPI). Investors must also have a local representative in Brazil.Portfolio investors must have a Brazilian financial administrator and register with theBrazilian Securities Exchange Commission (CVM).
All incoming foreign loans must be approved by the Central Bank. In most instances, the loans are automatically approved. Automatic approval is not issued when the costs of the loan are “not compatible with normal market conditions and practices.” In such instances, the Central Bank may request additional information regarding the transaction. Foreign loans obtained abroad do not require advance approval by the Central Bank, provided the recipient is not a government entity. Loans to government entities, however, require prior approval from the Brazilian Senate as well as from the Finance Ministry Treasury Secretariat,and must be registered with the Central Bank.
Interest and amortization payments specified in a loan contract can be made without additional approval from the Central Bank. Early payments can also be made without additional approvals, if the contract includes a provision for them. Otherwise, early payment requires notificationto the Central Bank to ensure accurate records of Brazil’s stock of debt.
Foreign investors, upon registering their investment with the Central Bank, are able to remit dividends, capital (including capital gains), and, if applicable, royalties. Remittances must also be registered with the Central Bank. Dividends cannot exceed corporate profits. The remittance transaction may be carried out at any bank by documenting the source of the transaction (evidence of profit or sale of assets) and showing that applicable taxes have been paid.
Capital gain remittances are subject to a 15 percent income withholding tax, with the exception of the capital gains and interest payments on tax exempt domesticallyissued Brazilian bonds. Repatriation of the initial investment is also exempt from income tax. Lease payments are assessed a 15 percent withholding tax. Remittances related to technology transfers are not subject to the tax on credit, foreign exchange, and insurance, although they are subject to a 15 percent withholding tax and an extra 10 percent Contribution of Intervention in the Economic Domain (CIDE).
The Government of Brazil imposes the IOF, a tax on financial operations, on capital inflows. The tax’s main goal appears to be to try to curb increases in the value of the Brazilian currency. Within a short period in October of 2010 the GOB imposed two consecutive increases to the IOF tax on capital inflows from abroad for fixed income investments; from two percent to four percent, and then from four percent to six percent. The GOB also raised the tax foreigners must pay on margin deposits for futures market trades from 0.38 percent to six percent. In December 2011, however, in an effort to stimulate the economy and encourage investment, the GOB removed the IOF from foreign investment in Brazilian stocks, from foreign venture capital, and from non-residents investing in long-term bonds with a maturity of more than four years.
Foreign loans with terms of 720 days or less used to fund operations in Brazil must pay an IOF of 6.0 percent, while those with a longer maturity are exempt. Profits and FDI remittances must pay an IOF of 0.38 percent.
The fall 2011 European banking crisis and other external factors have, relatively speaking, weakened the real from its high mark of summer 2011, when Brazil had, by at least one measure, the most overvalued currency in the world. In late 2011, the Real traded at approximately 1.85 Reais/USD, and private forecasters polled by the Central Bank predict that the real will strengthen slightly to an average of 1.79 Reais/USD during 2012.
Expropriation and Compensation
There have been no expropriation actions in Brazil against foreign interestsin therecent past,nor have there been any signs that the current government iscontemplating such actions. In the past, some claims regarding landexpropriations by state agencies have beenjudged by courts in U.S. citizens' favor. However, compensation has not always been paid as states have filed appeals to these decisions, and the Brazilian judicial system moves slowly.
The Brazilian court system, in general, is overburdened, and contract disputes can often take years to move through the system. The 2012World Bank “Doing Business” survey found that on average it takes 45 procedures and 731 days to litigate a contract breach at an average cost of 16.5 percent of the claim. Judicial reform measures enacted in December 2004, however,have streamlined some administrative procedures, and the introduction of the concept of binding precedent should, over time, make judicial decisions more predictable.
Article 34 of Brazilian Law 9,307, the 1996 Brazilian Arbitration Act, defines a foreign arbitration judgment as any judgment rendered outside the national territory. The law established that the Brazilian Federal Supreme Court must ratify foreign arbitration awards. Law 9,307 also stipulates that the foreign arbitration award is to be recognized or executed in Brazil in conformity with the international agreements ratified by the country and, in their absence, with domestic law. (Note: A 2001 Federal Supreme Court ruling established that the 1996 Brazilian Arbitration Act, permitting international arbitration subject to Federal Supreme Court ratification of arbitration decisions, does not violate the Federal Constitution’s provision that “the law shall not exclude any injury or threat to a right from the consideration of the Judicial Power.”)
Brazil has ratified the 1975 Inter-American Convention on International Commercial Arbitration (Panama Convention), the 1979 Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitration Awards (Montevideo Convention) and the 1958 U.N. Convention on the Recognition and Enforcement of Foreign Arbitration Awards (New York Convention).Brazil, however, is not a member of the International Center for the Settlement of Investment Disputes (ICSID), also known as the Washington Convention.
Brazil has a commercial code that governs mostaspects of commercial association, except for corporationsformed for the provision of professional services, whichare governed by the civil code. In2005, bankruptcy legislation (Law 11101) went into effect creating a system, modeled on Chapter 11 of the U.S.bankruptcy code, which allows a company in financialtrouble to negotiate a restructuring with its creditorsoutside of the courts. In the event a company does faildespite restructuring efforts, the reforms give creditors improved abilityto recover their debts.
Brazil has both a federal and a state court system, and jurisprudence is based on civil law. Federal judges hear most disputes in which one of the parties is the State and rule on lawsuits between a foreign State or international organization and a municipality or a person residing in Brazil. Five regional federal courts hearappeals of federal judges’ decisions.
Performance Requirements and Incentives
The Brazilian government uses a variety of tax incentives and attractive financing through the National Bank for Economic and Social Development (BNDES) to actively encourage both national and foreign investment. For the12-month period ending October 2011, BNDES lending surpassed USD 79 billion, making it the largest development bank in the world, outpacing the lending of even the World Bank. BNDES actively promotes development in traditionally underserved regions of the country and in other potentially marginally profitable ventures, but the majority of lending takes place in the more developed regions of the country. In the same period, the Southeast benefited the most from BNDES financing, having received 48 percent of funds distributed, followed by the South (22 percent), the Northeast (12 percent), and the Mid-West and the North (9 percent each). The vast majority of the funding (63 percent) has gone to large companies. A 2004 Public-Private Partnership (PPP) investment law promotes joint ventures in otherwise marginally profitable infrastructure investments.
In 2010, the government announced a major expansion to the 2007 Program to Accelerate Growth (PAC), its initiative to develop major infrastructure projects.Whilethe implementation and efficiency of the PAC and follow-on PAC-2 have beendebated, major projects have been completed and are in process throughout the country.Even in a tighter fiscal environment, the projected PAC spending in 2011 of R$27.8 billion was expected to greatly surpass 2010 spending of R$19.5 billion. The government continues to indicate it is interested in attracting foreign investment to fund infrastructure projects.
The Government of Brazil extends tax benefits forinvestment in less developed parts of the country, for example the Northeast and the Amazon regions, with equal application toforeign and domestic investors. These incentives have beensuccessful in attracting major foreign plants to areas like the Manaus Free Trade Zone, but most foreigninvestment remains concentrated in the more industrializedsouthern part of Brazil. Individual states have sought toattract investment by offering ad hoc tax benefits andinfrastructure support to specific companies, negotiated ona case by case basis. These have proven controversial, with other states challenging them as harmful fiscal competition. In June 2011, the Brazilian Supreme Court ruled that the tax benefits granted by 14 states are unconstitutional, as they were implemented without unanimous consent from the National Council of Fiscal Policy (Confaz). Tax reform legislationthat would limit states’ ability to offer special tax incentives to attract investment away from other states has been awaiting congressional action sinceAugust 2009.
In September 2011, in an effort to protect domestic producers,all of which are foreign-owned, the Government of Brazil announced Decree 7567,a 30 percentage point increase in the Industrial Products Tax (IPI) on any car not sourced with at least 65 percent of parts from Mercosul countries or Mexico, with which Brazil has an auto sector trade agreement. Analysts predict that the cumulative effect of the measure will be an increase of up to 28 percent in the prices of all imported cars, drastically reducing their competitiveness against those manufactured locally. The decision is a clear move to encourage manufacturers to invest in local, Brazilian production capacity rather than relying on importing cars into Brazil. In addition to the content requirement, in order to be exempt from the IPI hike, producers must invest at least 0.5% of after-tax income in research & development in Brazil and must perform at least 6 of 11 pre-determined assemblies in 80 percent of their Brazilian production lines. The measures have raised questions regarding WTO compliance, as imported cars would face restrictions different than thoseproduced domestically. Decree 7567 is set to expire on December 31, 2012.
In December 2011, the Government of Brazil passed Law 12546, which introduced the Special Regime for the Reinstatement of Taxes for Exporters, dubbed the Reintegra Program. Exporters of products covering 8,630 tariff codes – representing R$80 billion of exports – will receive a subsidy of 3 percent of the value of their exports, to be used either as a credit against their income tax or as a cash payment. To qualify, the imported content of the exported goods must not exceed 40%, except in the case of high-tech goods, such as pharmaceuticals, electronics, and aircraft and parts, which are permitted to have up to 65% of inputs imported. In addition, Reintegra exempts exporters from so-called indirect taxes on capital expenditures, including the PIS/Cofins social contribution taxes and the IOF tax on financial transactions. The Reintegra Program expires on December 31, 2012.
In May of 2010, the government placed state-owned communications firm Telebras at the head of a National Broadband Plan which incorporates fiscal incentives, private sector participation, and regulatory reform to buildout Brazil’s next generation communication infrastructure network. While the plan provides commercial opportunities for the private sector, including foreign investors, there is strong government support to leverage the plan to advance Brazilian technology.This includes favorable BNDES financing for acquisition of telecom equipment that utilizes Brazilian technology, tax exemptions on the purchase of IT equipment that uses Brazilian technology, as well as favoring national technology in the procurement process. Nonetheless, foreign firms have already begun to participate in the National Broadband plan.
As of October 2011, internet companies in Brazil began to offer broadband for as low as R$35.00 (US$19) per month. The "Internet for the People" initiative is part of Brazil’s National Broadband Plan which aims to bring high-speed connections to 40 million homes, part of the government’s efforts to increase digital inclusion throughout Brazilian society. The GOB seeks to connect all Brazilian municipalities to the internet no later than 2014. In addition to cutting the price of internet connections in half, the Brazilian government will provide free internet access to 59,000 public elementary and high schools. In the most marginal communities including rural settlements and indigenous communities, the Ministry of Communication will establish 13,000 Telecenters to boost digital inclusion.
To promote Brazilian industry, the Special Agency for Industrial Financing (FINAME) of BNDESprovides financing for Brazilian firms to purchaseBrazilian-made machinery and equipment and capital goodswith a high level of domestic content. The interest rates charged by BNDES are often lower than the prevailing market interest rates for domestic financing.
Brazil is not a signatory to the WTO Agreement on Government Procurement (GPA). Some U.S. companies have found it difficult to participate in Brazil’s public sector procurement unless they have operations in Brazil or are associated with a local firm. Such companies are often more successful in obtainingsubcontracting arrangements with large Brazilian firms that wingovernment contracts.
Law 8666 (1993) covers most government procurement other than information technology/telecommunications and requires non-discriminatory treatment for all bidders regardless of nationality or origin of the product or service. Brazilian government procurement rules apply to purchases by government entities and state-owned companies. Brazil has an open competition process for major government procurements. The Brazilian government may not make a distinction between domestic and foreign-owned companies during the tendering process; however, when two equally qualified vendors are considered, the law’s implementing regulations provide for a preference to Brazilian goods and services. Price is to be the overriding factor in selecting suppliers (see update in the following paragraph). However, the law's implementing regulations also allow for the consideration of non-price factors, giving preferences to certain goods produced in Brazil and stipulating local content requirements for fiscal benefits eligibility. Additionally, nearly all bids require establishment of a local representative for any foreign company bidding.
In 2010, then-President Lula signed a provisional measure that later was approved by the Congress and became law (No. 12,349, December 15, 2010), giving preference to firms that produce in Brazil -- whether foreign-owned or Brazilian -- that fulfill certain economic stimulus requirements such as generating employment or contributing to technological development, even when their bids are up to 25 percent more expensive than competing imported products. In August 2011, this system of preference margins was folded into Plano Brasil Maior. Government procurement is just one of thirty-five components under Brasil Maior intended to support Brazilian exporters and protect domestic producers, particularly the labor-intensive sectors threatened by exports from abroad. The textile, clothing and footwear industries – among the few industries to have lost jobs during the current growth period –were the first to benefit from Brasil Maior when, in November 2011, the Ministry of Development, Industry and Commerce implemented an 8 percent preference margin for domestic producers in these industries when bidding on government contracts.
Decree 7174 (2010), which regulates the procurement of information technology goods and services, requires federal agencies and parastatal entities to give preferential treatment to locally produced computer products and goods or services with technology developed in Brazil based on a complicated and nontransparent price/technology matrix.
Right to Private Ownership and Establishment
Foreign and domestic private entities may establish, own,and dispose of business enterprises.
Protection of Property Rights
Brazil has a system in place for mortgage registration, but implementation is uneven and there is no standardized contract. Foreign individuals or foreign-owned companies can purchase real property in Brazil. These buyers frequently arrange alternative financing in their own countries, where rates may be more attractive. Law 9514 (1997) helped spur the mortgage industry by establishing a legal framework for a secondary market in mortgages and streamlining the foreclosure process, but the mortgage market in Brazil is still underdeveloped, and foreigners may have difficulty obtaining mortgage financing. Large U.S. real estate firms, nonetheless, are expanding their portfolios in Brazil.
Intellectual Property Rights
Brazil is a signatory to the GATT Uruguay Round Accords, including the Trade Related Aspects of Intellectual Property (TRIPs) Agreement, signed in April 1994. Brazil is a signatory of the Bern Convention on Artistic Property, the Patent Cooperation Treaty, the Convention on Plant Variety Protection, and the Paris Convention on Protection of Intellectual Property.
Brazil is not a party to the WIPO Copyright Treaty or the WIPO Performances and Phonograms Treaty (collectively, the "WIPO Internet Treaties"). In 2006, Brazil announced plans to join the Madrid Agreement Concerning the International Registration of Marks ("Madrid Protocol"), but the executive branch has yet to submit this proposal to the Brazilian Congress for approval.
In most respects, Brazil’s 1996 Industrial Property Law (Law 9279) meetsthe international standards specified in the TRIPs Agreement regarding patent and trademark protection. However, the law permits the grant of a compulsory license if a patent owner has failed to locally manufacture the patented invention in Brazil within three years of patent issuance, a form of compulsory licensing that the United States believes would be inconsistent with Articles 27.1 and 28.1 of TRIPs. On May 4, 2007, invoking TRIPS provisions for public health emergencies, Brazil issued a compulsory license for an anti-retroviral drug used in treating HIV/AIDS.
The United States continues to raise concerns regarding article 229-C of law 9279, as amended by Law 10196 (2001), which includes a requirement for National Health Surveillance Agency (ANVISA) approval prior to the issuance of a pharmaceutical patent by the National Industrial Property Institute (INPI). ANVISA’s role in reviewing pharmaceutical patent applications remains less than transparent and has contributed to an increasing backlog in the issuance of patents. In addition, conflicting opinions on patentability between INPI and ANVISA has left 145 patent applications unissued. On October 16, 2009, the Brazilian Federal Attorney General (AGU) analyzing the institutional role of ANVISA in the patent application process, presented Opinion No. 210 stating that ANVISA should examine pharmaceutical patent applications only from a public health perspective. The opinion states that INPI is the only agency with the competency to review the patentability requirements of such applications. On January 10, 2011, the AGU issued another opinion noting ANVISA’s limited role: “ANVISA may not refuse the granting of the prior consent of art. 229-C of IP Law based on patentability requirements.” AGU´s opinions are not binding, and the Federal Government has created an Inter-Ministerial Working Group to study how to best implement such document.
An ongoing concern is the backlog of pending patent applications at INPI. It currently takes an average of eight years to receive a patent in Brazil. However, INPI has increased its hiring and training of new patent examiners in an effort to decrease pendency. In 2012, INPI is planning to begin rolling out an electronic filing system for new patent applications, which would enable inventors to apply for a patent via an online system.
The United States has also raised concerns regarding Brazil's protection against unfair commercial use of test data generated in connection with obtaining marketing approval for human-use pharmaceutical products. Law 10603 (2002) covers data confidentiality for veterinary pharmaceuticals, fertilizers, agro-toxins, and related products, but does not cover pharmaceuticals for human use.
A government-drafted bill to provide protection for the layout design of integrated circuits (computer mask works) was enacted into law on May 31, 2007 (Law 11.484).
Patent and trademark licensing agreements must be recorded with and approved by INPI and registered with the Central Bank of Brazil (Normative Act No. 135, of April 15, 1997). Licensing contracts must contain detailed information about the terms of the agreement and royalties to be paid. In such arrangements, Brazilian law limits the amount of the royalty payment that can be taken as a tax deduction (from one percent to five percent), which consequently acts as a de facto cap on licensing fees (Act No. 436 of 1958).
Brazil's 1998 copyright law generally conform to international standards, yet piracy of copyrighted material remains a problem. The Brazilian Congress passed a law in July 2003 increasing minimum prison sentences for copyright violations and establishing procedures for making arrests and the destruction of confiscated products. Draft Law 333 of 1999 would stiffen the criminal penalties for counterfeiting, but remains stalled in the Brazilian Congress. After being shelved in 2006, the draft law was re-submitted in November 2008 for urgent reconsideration, but the proposal has not come to a vote.
In August 2007, a bill (PL 1807/07) was introduced that, if approved, would amend Article 189 of Brazil’s Industrial Property Law (Law 9279 of 1996) to increase the criminal penalties for trademark violations to two to six years, up from the current three to twelve months. The bill has been under consideration in a Brazilian Chamber committee since August 2007.
In the U.S. Trade Representative's 2007 Special 301 Report, Brazil was downgraded from “Priority Watch List” to “Watch List,” in recognition of its improved anti-piracy enforcement efforts. Since then, Brazil has remained on the “Watch List” of the Special 301 Reports. Anti-piracy enforcement has continued to improve, especially in the major cities of Sao Paulo, Rio de Janeiro, and Brasilia.
Transparency of the Regulatory System
In the 2012World Bank “Doing Business” report, Brazil ranked 126th out of 183 countries in terms of overall ease of doing business, adecline of six places over the 2011 study. According to the study, it takes an average of 13 procedures and 119 days to start a new business. The study noted that the annual administrative burden to a medium-size business of tax payments in Brazil is an average of 2,600 hours versus 186 hours in the OECD high-income economies.According to this same study,the total tax rate for Brazil’s medium-sized business is 67.1percent of profits, compared to 42.7 percent in the OECD high-incomeeconomies. Business managers often complain of not understanding tax regulations, despite best efforts including large tax and accounting departments.
Tax regulations, while burdensome and numerous, do not differentiate between foreign and domestic firms. However, there have been instances of complaints that the value-added tax collected by individual states (ICMS) favors local companies. Although the tax is designed to be refunded upon export of goods outside of the country, exporters in many states have had difficulty receiving their ICMS rebates. Taxes on commercial and financial transactions are particularly burdensome, and businesses complain that these taxes hinder the international competitiveness of Brazilian products. A government proposal to streamline the tax collection system is currently under consideration by the Brazilian Congress, but remains stalled.
ANVISA, the Brazilian FDA equivalent, has regulatory authority over the production and marketing of food, drugs and medical devices.ANATEL, the country's telecommunication agency,handles licensing and assigns bandwidth. ANP, the National Petroleum Agency, regulates oil and gas contracts and oversees the bidding process to acquire oil blocks, including for pre-salt oil.
In April 2011, President Rousseff issued a decree that created the Secretariat for Civil Aviation (SAC), a cabinet level agency that subsumed Brazil’s civil aviation regulator, ANAC, and airport authority, INFRAERO, under one ministry. SAC was created to better coordinate and improve Brazil’s civil aviation infrastructure, as the country prepares to handle the continued rapid increase in passenger traffic, as well as the expected surge in travelers during the 2014 World Cup and 2016 Olympic Games. As an indication of the priority that President Rousseff places on infrastructure development, she appointed Wagner Bittencourt Oliveira, the former director of infrastructure at Brazil’s national development bank, BNDES, to head the new ministry.
Foreign investors have encountered obstacles when interfacing with regulatory agencies. Notable examples include companies in the electric power sector that have complained about the high level ofregulatory risk, including the tariff review process. Additionally, some industries have reported challenges in obtaining licenses from IBAMA, the environmental regulator, citing unpredictability in IBAMA’s licensing requirements, though the process has reportedly become more streamlined since 2008.There have also been examples of federal agencies levying significant fines on U.S. companies. In October 2011, Brazilian private insurance regulator (SUSEP)announced its intention to fine U.S. insurance company National Western Life USD 6 billion for selling insurance contracts without being licensed in Brazil. If imposed, the fine would be the largest in the history of Brazil’s financial system. In a case that has been ongoing since November 2011, various Brazilian regulatory agencies including IBAMA,Brazil’s National Petroleum Agency (ANP), and the Rio de Janeiro State Institute of Environment (INEA)have announced their intent to impose separate fines on Chevron totaling approximately USD 220 million for damages related to an offshore oil seep from a Chevron-operated well. In addition, in December 2011, a Rio de Janeiro-based Federal Public Ministry official filed an application for Chevron and its contracted drilling company, Transocean, to be fined approximately USD 10.6 billion.Brazilian private sector organizations, which often include foreign companies, are vocal and involved in industry standards setting.
On November 30, 2011, law 12,529 was adopted to modernize Brazil’s antitrust review and to combine the antitrust functions of the Ministry of Justice and the Ministry of Finance (MoF) into those of the Administrative Council for Economic Defense (CADE). This new government body, the “Super CADE,” will be responsible for enforcement of competition laws, consumer defense, and combating abuse of economic power. The law will also revise the country’s licensing and anti-cartel system.
Recent Changes and Concerns in Legislation Regulating Business Operations
In 2010, Brazil’s Congress approved and then-President Lula signed a series of laws that govern development for the deep water “pre-salt” oil and gas reserves found off Brazil’s coast. President Lula vetoed portions of the legislation that would address division of royalties between state and municipal governments, however, and the lack of clarity on how those royalties will be divided has led to delays by the Government in establishing the timeline for the next auction for oil block exploration, including for “pre-salt” exploration. The delay has held up foreign companies eager to participate in pre-salt exploration. Also, one U.S. company announced in October 2011 that it was contemplating selling its Brazilian assets due to the proposed regulatory framework for development of the pre-salt fields. The new regime replaces Brazil’s former concessions model for exploration and production of “pre-salt” reserves with a production sharing system. The legislation creates a new government entity to represent the government in any agreements, grants sole operator status to the parastatal oil company Petrobras, requires Petrobras to have a minimum 30 percent stake in any pre-salt project, and establishes a social fund to administer the government’s proceeds.
U.S. companies wanting to enter Brazil’s insurance and reinsurance market must establish a subsidiary, enter into a joint venture, or acquire or partner with a local company. Market entry for banks may occur on a case-by-case basis. The Brazilian reinsurance market was opened to competition in 2007. In December 2010 and March 2011, however, the Brazilian National Council on Private Insurance (CNSP) effectively rolled back market liberalization through the issuance of Resolutions 225 and 232, which disproportionately affect foreign insurers operating in the Brazilian market. Resolution 225 requires that 40 percent of all reinsurance risk be placed with Brazilian companies. Resolution 232 allows insurance companies to place only 20 percent of risk with affiliated reinsurance companies. As of November 2011, a Congressional bill (PDC-369/2011) to suspend CNSP Resolutions 225 and 232 was in the Finance and Tax Committee of the Chamber of Deputies. In the interim, in December 2011, the CNSP issued Resolution 241, which walks back some of the restrictions of Resolution 225 by allowing the 40 percent requirement to be waived if local reinsurance capacity does not exist.
In October 2010, the Brazilian tax and customs authority, Receita Federal, launched a new automated system for express delivery customs processing. The new Sistema Remessa will allow for paper-free electronic clearance for express delivery goods. This is an important first step, but companies continue to express concern over remaining regulatory challenges that they face, including high import taxes, low maximum value limits for express export and import shipments and the possible approval of a postal reform law that could undermine current levels of market access for private express delivery service companies.
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Efficient Capital Markets and Portfolio Investment
The Brazilian financial sector is large and sophisticated. Banks lend at the Brazilian market rate which remains extremely high. Reasons cited by industry observers include high taxation, repayment risk, concern over inconsistent judicial enforcement of contracts, high mandatoryreserve requirements, and administrative overhead.
Thefinancial sector is concentrated, with2011Central Bank data indicating that the 10largest commercial banking institutions account for approximately72.4 percent of financialsector assets, less brokerages (approx. USD 2trillion). Threeof the five largest banks (in assets) in the country, Banco do Brasil, Caixa Economica Federal, and BNDES, are federally owned. Lending by the largebanking institutions is focused on the largest companies, while small and medium banks primarily serve small and medium-sized companies, but with a much smaller capital base.
The Central Bank has strengthenedbank audits, implemented more stringent internal controlrequirements, and tightened capital adequacy rules to betterreflect risk. It also established loan classification andprovisioning requirements. These measures are applied toprivate and publicly owned banks alike. The Brazilian securities and exchange commission (CVM) independently regulates the stock exchanges, brokers, distributors, pension funds, mutual funds, and leasing companies with penalties against insider trading.
Brazil’s credit market has grown significantly over the past several years. Real interest rates, however, remain among the highest in the world, leading large enterprises operating in Brazil to access financing on international markets. While local private sector banks are beginning to offer longer credit terms, BNDES, the government national development bank, is the traditional Brazilian source of longer-term credit, and also provides export credits. FINAME (the Special Agency for Industrial Financing) provides foreign and domestically owned companies operating in Brazil financing for the manufacturing and marketing of capital goods. FINAMEX (Export Financing), which finances capital good exports for both foreign and domestic companies, is a part of FINAME. One of the goals of these financing options is to support the purchase of domestic over imported equipment and machinery.
PROEX, an export credit program financed by the National Treasury, offers assistance in the areas of interest rate equalization, capital and other goods exports, and service exports.The government in November 2011 announced it planned to reduce funding for PROEX in 2012 to USD 650 million from USD 1.25 billion in 2011. (See OPIC and Other Investment Insurance Programs section for more information on credit availability).
All stock trading is performed on the Sao Paulo Stock Exchange (BOVESPA), while trading of public securities is conducted on the Rio de Janeiro market. In 2008, the Brazilian Mercantile &Futures Exchange (BM&F) merged with the BOVESPA to form what is now the fourth largest exchange in the Western Hemisphere, after the NYSE, NASDAQ, and Canadian TSX Group exchanges. BOVESPA has launched a "New Market," in which the listed companies comply with stricter corporate governance requirements. In June 2004, BOVESPA’s new market had 18 listed companies; by 2011 there were 125. (Note: A majority of Initial Public Offerings are listed on the New Market). In 2010, there were seventeen new IPOs and follow-ons representing R$ 18.0 billion in raised capital; approximately 55 percent of this amount was foreign capital. In November 2011, DirectEdge, the fourth-largest stock exchange operator in the United States, announced that it planned to launch its services in Brazil in the fourth quarter of 2012. If the plan is approved by Brazil regulators, DirectEdge will serve as an alternative trading platform to the BOVESPA.
The total number of companies listed on the BOVESPA has fluctuated in recent years. There were 394 companies in 2006, 424 in 2008, 386 in 2009, 471 in 2010 and 375 in 2011. Total daily trading average volume has risen from R$ 2.4 billion in 2006 to R$ 5.9 billion in 2011.
Trading is highly concentrated, with the top ten stocks accounting for nearly half of the 2011 trading volume. A total of 83 Brazilian firms are also listed on the NYSE via American Depository Receipts (ADR's). Conversely, the Brazilian subsidiaries of some U.S. companies have issued shares on the BOVESPA.
Foreign investors, both institutions and individuals, can directly invest in equities, securities and derivatives. Foreign investors are required to trade derivatives and stocks of publicly held companies on established markets. At year-end 2011, foreign investors accounted for 34.9 percent of the total turnover on the BOVESPA. Domestic institutional investors were the second most active market participants, accounting for 32.8 percent of activity. Individual investors comprised 22.3percent of activity, followed by financial institutions (8.1 percent), and other companies (1.8 percent). Since 2001, Law 10303 has limited preferred shares for new issuances to 50 percent.
Brazilian law recognizes mergers and consolidations. Although the stock market is growing in popularity, sales of Brazilian companies usually result from private negotiations, rather than stock exchange activities. Acquisitions resulting in market concentration in excess of 20 percent are subject to review by the Administrative Council for Economic Defense (CADE) under Brazil's 1994 Anti-trust Law.For more information on CADE, please refer to the section on ‘Transparency of the Regulatory System.’
Wholly owned subsidiaries of multinational accounting firms, including the major U.S. firms, are present in Brazil. As of 1996, auditors are personally liable for the accuracy of accounting statements prepared for banks.
In recent years the government has sought to control appreciation of the Brazilian currency with the introduction of new taxes on capital inflows (see “Conversion and Transfer Policies” section above).
Competition from State-Owned Enterprises
Since the early 1990’s, the Brazilian government has aggressively privatized state enterprises across a broad spectrum of industries, including mining, steel, aeronautics, banking, energy, and electricity generation and distribution. While the government has divested itself from many of its state-owned companies, it maintains partial control (at both the federal and state level) of some previously wholly state-owned enterprises. Notable examples of partially federally-controlled firms include energy giant Petrobras and power utility Eletrobras.Both Petrobras and Eletrobras include non-government shareholders, are listed on both the Brazilian and NYSE stock exchanges, and are subject to the same accounting and audit regulations as all publicly traded Brazilian companies.
In addition to major players like Petrobras and Eletrobras, the Brazilian government, at both the federal and state levels, maintains ownership interests in a variety of other smaller enterprises. Typically, corporate governance is led by a board comprised of directors elected by the state or federal governmentwith additional directors elected by the other non-government shareholders. Brazilian enterprises with state ownership are concentrated in the energy, electricity generation and distribution, transportation, and banking sectors. Many of these firms are also publically traded companies on the Brazilian and other stock exchanges.
The 2010 pre-salt legislation, described above in “Recent Changes and Concerns in Legislation Regulating Business Operations” gives Petrobras sole operator status for the development of the new oil discoveries. The terms and conditions of the new regime favor Petrobras as the sole operator, although foreign firms are still anticipated to play a role in the pre-salt oil fields.
In December of 2008, the Brazilian Ministry of Finance established a sovereign wealth fund (SWF) with initial capital of R$14.2 billion financed through a government bond issuance. Brazil’s SWF is managed by the Fiscal Investment and Stabilization Fund (FFIE), a vehicle established for the sole purpose of managing the fund. The FFIE isstructured similarly to any other financial fund manager in Brazil and subject to the same regulatory and transparency guidelines, including external and independent auditing.The SWF was designed to be an anti-cyclical tool to help absorb the impacts of financial downturns. There are no material restrictions on how the SWF can be used, apart from the fact that it must maintain a tolerable risk profile. Currently the SWF is entirely domestically focused, but it is authorized to invest outside of Brazil.
Corporate Social Responsibility
Most state-owned and private sector corporations of any significant size in Brazil pursue corporate social responsibility (CSR) activities. Many corporations support local education, health and other programs in the communities where they have a presence. Brazilian consumers, especially the local citizenry where a corporation has or is planning a local presence, expect CSR activity. It is not uncommon that corporate officials will meet with community members prior to building a new plant or factory to review what types of local services the corporation will commit to providing. Foreign and local enterprises in Brazil often advance United Nations Development Program (UNDP) Millennium Development Goals (MDGs) as part of their CSR activity, and will cite their local contributions to MDGs such as universal primary education and environmental sustainability.
The U.S. diplomatic mission in Brazil supports American businessCSR activities through the +Unidos Group (Mais Unidos), a group ofmore than 100 American companies established in Brazil. Additional information on how the partnership supports public and private alliances in Brazil can be found on its website: www.maisunidos.org.
The private sector in Brazil is increasingly engaging in public-private partnerships for investments in environmental and socio-economic development initiatives. Currently Mais Unidos, in partnership with USAID, has two joint projects in the areas of education and environment. The education/English Language project, Mais Opportunidades, has been operatingin Rio de Janeiro since 2011 with the support from the Rio de Janeiro State government, and will benefit 1,500 disadvantaged youth in 2012. The environment project, Mais Unidos for the Amazon, contributes to preserve the biodiversity of the region.
Political and labor strikes and demonstrations occur occasionally in urban areas and may cause temporary disruption to public transportation. In addition, criminal organizations in Sao Paulo have in the past staged campaigns against public institutions. While U.S. citizens have notbeen targeted during such events, U.S. citizens traveling or residing in Brazil are advised to take common-sense precautions and avoid any large gatherings or any other event where crowds have congregated to demonstrate or protest. For the latest U.S. State Department guidance on travel in Brazil, please consult www.travel.state.gov.
In 2011, Brazil ranked 73rd(out of183 countries) in Transparency International's Corruption Perceptions Index. In South America,Brazil ranked behind Chile and Uruguay, and ranked ahead ofColombia, Peru, Argentina, Suriname, Bolivia, Ecuador, Guyana, Paraguay and Venezuela. With regard to major emerging economies in the BRICS grouping, Brazil ranked ahead of China (75th),India (95th), and Russia (143rd), but behind South Africa (64th).
Corruption scandals are a regular feature of Brazilian political life. In her first year in office, 2011, President Rousseff dismissed six ministers suspected in separate incidents of diverting public funds and/or influence peddling. Authorities have conducted corruption investigations involving politicians from both opposition and government coalition parties over the course of the last several years.According to Congress in Focus, an anti-corruption NGO in Brasilia, 136 sitting lawmakers are currently the subject of criminal investigations.
Brazil's anti-money laundering mechanisms and relatively independent prosecutorial and oversight institutions have played useful roles in the investigation of such cases.In June of 2010, then-President Lula da Silva signed into law Complementary Law 135, known as the “Ficha Limpa” law, which prohibits candidates convicted of crimes, including abuse of public office, from running for office. The Brazilian Supreme Court decided in 2011 that the Ficha Limpa law will take effect for the first time in the 2012 municipal elections.
Brazil is asignatory to the Organization for Economic Cooperation andDevelopment (OECD) Anti-Bribery Convention.Brazil has laws, regulations and penalties to combat corruption, but their effectiveness is inconsistent. Bribery is illegal, and a bribe by a local company to a foreign official is a criminal act. A company cannot deduct a bribe to a foreign official from its taxes. While federalgovernment authorities generally investigate allegations ofcorruption, there are inconsistencies in the level ofenforcement among individual states. Corruption has been reported to beproblematic in business dealings with some parts of the Brazilian government, particularly on the local level. U.S. companies operating in Brazil are subject to the U.S. Foreign Corrupt Practices Act.
In September 2011, Presidents Rousseff and Obama launched the Open Government Partnership, a new multilateral initiative that aims to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance.
Bilateral Investment Agreements
Brazil does not have a Bilateral Investment Treaty with the United States. While in the 1990’s Brazilsigned BITs with Belgium and Luxembourg, Chile, Cuba, Denmark, Finland, France, Germany, Italy, Republic of Korea, Netherlands, Portugal, Switzerland, United Kingdom and Venezuela, none of these have been approved by the Brazilian Congress. Brazil also has not approved the Mercosul investment protocol.
Brazil has no double taxation treaty with the United States, but it does have such treaties with 24 other countries, including, among others, Japan, France, Italy, the Netherlands, Canada and Argentina. Brazil signed a Tax Information Exchange Agreement with the United States in March 2007 that passed the Brazilianchamberin December 2009 and currently awaits action in the Brazilian senate.
OPIC and Other Investment Insurance Programs
Programs of the Overseas Private Investment Corporation(OPIC) are fully available, and activity has increased inrecent years. The size of OPIC's exposure in Brazil mayoccasionally limit its capacity for new coverage. Brazil became a member of the Multilateral InvestmentGuarantee Agency (MIGA) in 1992.
The 92.7 million-strong Brazilian labor force comprises a wide range of skills covering a broad array of occupations and industries. Slightly more than three fifths, or 61 percent, of the labor force is employed in the service sector, 17 percent in the agriculture sector, and the civil construction and manufacturing sectors combined employ the remaining 22 percent.
Brazil has signed on to a large number of International Labor Organization (ILO) conventions. Brazil is party to the U.N. Convention on the Rights of the Child and major ILO conventionsconcerning the prohibition of child labor, forced laborand discrimination.
The labor code is highly detailed and relatively generous to workers. Formal sector workers are guaranteed 30 days of annual leave and severance pay in the case of dismissal without cause. Brazilian employers are required pay out a “thirteenth month” of salary to employees at the end of the year. Brazil also has a system of labor courts that are charged with resolving routine cases involving unfair dismissal, working conditions, salary disputes, and other grievances. Labor courts have the power to impose an agreement on employers and unions if negotiations break down and either side appeals to the court system. As a result, labor courts routinely are called upon to determine wages and working conditions in industries across the country. The system is tantamount to compulsory arbitration and does not encourage collective bargaining. In recent years, however, both labor and management have become more flexible and collective bargaining has assumed greater relevance.
The Ministry of Labor estimates that there are over 16,000 labor unions in Brazil, but Ministry officials note that these figures are inexact. Labor unions, especially in sectors such as metalworking and banking, tend to be well-organized and aggressive in defending wages and working conditions and account for approximately 19 percent of the official workforce according to the last Brazilian Institute of Geography and Statistics (IBGE) release (2005). Strikes occur periodically, particularly among public sector unions. Unions in various sectors engage in industry-wide collective bargaining negotiations mandated by federal regulation. While some labor organizations and their leadership operate independently of the government and of political parties, others are viewed as closely associated with political parties.
In firms employing three or more persons, Brazilian nationals must constitute at least two-thirds of all employees and receive at least two-thirds of total payroll. Foreign specialists in fields where Brazilians are unavailable are not counted in calculating the one-third permitted for non-Brazilians.
The IBGE statistical agency estimated unemployment in the major metropolitan areas as of October 2011 at 5.8 percent (versus 6.1 percent in October 2010). With low unemployment, there is currently a shortage of highly-skilled workers. Unemployment levels range significantly across regions.
IBGE reports show that real wages have trended higher in recent years. The average monthly wage in Brazil's six largest cities was around R$1,612 in October 2011 (approximately USD 910 based on average exchange rates for that month). The minimum monthly wage has regularly been increased in recent years from R$380 in 2007 to R$622 (approximately USD 350)in 2012. Earnings vary significantly by region and industry, and there is significant income inequality between Brazil’s poor and wealthy.
Employer federations, supported by mandatory fees based on payroll, play a significant role in both public policy and labor relations. Each state has its own federation, which reports to the National Confederation of Industries (CNI), headquartered in Brasilia.
Foreign Trade Zones/Free Trade Zones
The federal government has granted tax benefits for certainfree trade zones. Most of these free trade zones aim to attract investment to the country’s relatively underdeveloped North and Northeast regions.The most prominent of these is theManaus Free Trade Zone, in Amazonas State, which hasattracted significant foreign investment, including fromU.S. companies. For the ten months ending October 2011, the companies of the Manaus industrial area generated USD 34.3 billion in revenues, an increase of 20.2% over the same period in 2010.In October 2011, President Rousseff signed a constitutional amendment which extends Manaus’s status as an industrial zone status for another 50 years.
Foreign Direct Investment Statistics
According to the Central Bank's most recent foreign-capital census (2010), the United Stateshad thelargest share of accumulated foreign-capital stock in Brazil, with18.0 percent of the total. Spain had14.7 percent, Belgium 8.7 percent,and Brazil 8.3 percent.Investment inflows between the years2006 to 2011 haveamounted to about USD377billion, exclusive of depreciationand capitalrepatriation.
[Note: The Central Bank of Brazil released this year, for the first time, FDI figures which attempt to capture investment by the country of origin rather than investment by intermediary country. Data by intermediary country, used in previous versions of the Investment Climate Statement, overstated the true investment from countries such as Luxembourg, the Cayman Islands, and Bermuda. This change in Central Bank reporting accounts for the differences between the 2012 and 2011 ICS reports.]
According to a Brazilian Central Bank market survey report, FDI inflows to Brazil are anticipated to have reachedmore than USD 63.0 billion in 2011. According to the U.S. Bureau of Economic Analysis, FDI inflows from the United States to Brazil were USD 2.7 billion in 2010 andthe stock of FDI from the United Statesin Brazil was USD 66.0 billion as of the end of2010.
Total FDI into Brazil as a Percentage of Brazilian GDP:
FDI (USD Billions)
Percentage of GDP
Source: Central Bank of Brazil
For more information on investing in Brazil, contact the National Investment Information Network, Brazilian Ministry of Development, Industry and Foreign Trade (MDIC):