Cryptocurrencies are no longer "just" a trend and have increasingly taking up space in the global economic scenario. There are over one thousand digital "currencies", and it is worth mentioning the three leading market assets – Bitcoin, Ethereum and Ripple. Bitcoin is currently the most widely known and traded cryptocurrency.
The record system that ensures the protection of transactions performed with such cryptocurrencies is known as blockchain. In essence, it works as a type of "ledger", recording transactions made both chronologically and definitively. Aside from being a single and public system, blockchain is also decentralized and shared, rendering it almost unhackable, thereby protecting members against forgeries and double expenditures, making life harder for both hackers and cybercriminals alike.
The legal nature of cryptocurrencies is still a rather polemical matter, not only in Brazil, but worldwide. The Brazilian Judiciary Branch has even expressed its understanding of the issue, reflected in Bill 2,303/2015, written by Congressman Expedito Netto (PSD-RO), which may prohibit, limit and even criminalize the trade of Bitcoin and other cryptocurrencies in national territory.
Despite their name, cryptocurrencies may not be legally defined as a currency, at least not in the strict sense, for they do not fall under the terms of Law 9,069/95 and of Decree-Law 857/69, and also do not have the specifications listed by the Federal Supreme Court (STF), since they may be denied as a means of payment, and may not be converted in value of any other type/nature1.
Initially, the Brazilian Securities and Exchange Commission ("CVM") argued that depending on the economic context of the respective issue and rights granted to the invertors, cryptocurrencies could represent securities, pursuant to the terms of Article 2 of Law 6,385/762. However, CVM has recently advised investment fund managers and administrators to wait for a future and more conclusive statement on the questions related to the possibility of structuring indirect investments in cryptocurrencies3.
Considering the foregoing context, it is possible to conclude that CVM's intent was to classify the digital "currencies" under the category provided for item IX of Article 2 of said Securities Law. In other words, the cryptocurrencies should allegedly be publicly offered, generate interest, compensation or partnership rights to the invertors, including arising out of service provision. The fact of the matter is that the sale of the cryptocurrencies, in practice, does not have the necessary requirements for the possible classification thereof as securities, for they do not generate earnings from the efforts of the entrepreneur or third parties.
Considering their specifications, such digital currencies could be defined as financial commodities, as assets that have both quotes and global "tradability", and also suffer variation according to market circumstances, such as supply and demand. Hence, much like securities, cryptocurrencies may also be classified as intangible property: in other word, despite their abstract existence, they have economic value4.
The possible use of such assets to pay in capital of corporations is theoretically backed by Article 7 of Law 6,404/1976, according to which capital contributions may be made via assets subject to assessment to form the corporate capital. However, line "h" of Article 17 of said law determines that no pay-in is authorized with assets that are outside the effective and concrete achievement of the companies' activities. As such, it is necessary to be especially careful with respect to capital pay-in using cryptocurrencies, for it is mandatory for the company to effectively use such assets. Provided such requirement is met, there is no objection in the law that prevents capital to be paid in exclusively in cryptocurrencies, which is quite innovative.
Partners of companies governed by the Brazilian Civil Code, which are mostly limited-liability companies, may also pay-in capital using assets expressed in currency, pursuant to the terms of Article 997, III, of the Brazilian Civil Code. Such contribution – including the reservations made in the preceding paragraph, which are at least applicable to any modality of company with legal personality, in theory – may also be made with any type of assets, whether tangible or intangible,
Both cases therefore call for the assets part of the capital to have defined pecuniary value, which is not as simple when it comes to the cryptocurrencies. It is essential to use an appropriate valuation methodology in order to determine their fair market value; in other words, the price that would be received in the event of any non-forced transaction between market players on the measurement date thereof. The real challenge lies in pricing the cryptocurrencies and estimating their future quotes.
Such fact led certain Wall Street companies to begin studies on "pricing" methods for Bitcoin, one of the most emblematic of current cryptocurrencies. Stefan Hubrich, director of Multi-Asset Research of T. Rowe Price Group, Stefan Hubrich, argues that in order to calculate price, it is necessary to define the currency's market value versus the dollar volume of blockchain transactions. To this end, Hubrich uses a four-week horizon in lieu of the 12 months typically used for equities, because of the limited historical data available5.
1. STF. Appeal to STF: Rext 478.410. Rapporteur: Justice Eros Grau. Published in the Court Register (Dj) on May 14, 2010. Available [online] at: (http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=611071). Access on May 4, 2018.
2. Vide Nota CVM a respeito do Initial Coin Offering (ICO), de 11.10.2017.
3. See CVM Official Letter 1/2018/CVM/SIN
4. GONÇALVES, Carlos Roberto. Direito Civil brasileiro, volume 1: parte geral – 11. Ed. – São Paulo: Saraiva, 2013, p. 278.
5. (http://www.valor.com.br/financas/5217243/o-que-esta-por-tras-da-precificacao-do-bitcoin). Access on May 4, 2018.
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