A indústria de fundos de investimento no Brasil: um estudo teórico e empírico sobre a relação fiduciária entre o administrador-gestor e os respectivos cotistas de fundos de investimentos

• Autor(a) principal: Coelho, Alexandre Ramos
• Data de Publicação: 2015
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Institucional do FGV (FGV Repositório Digital)
• Texto Completo: http://hdl.handle.net/10438/13779
• topic: Fiduciary relationship; Duty of loyalty; Duty of diligence; Asset manager; Conflict of interest; Abuse of power; Relação fiduciária; Dever de lealdade; Dever de diligência; Administrador e gestor de fundos de investimento; Abuso de poder; Direito; Investimentos - Brasil; Informação assimétrica; Negócio fiduciário; Conflito de interesses

According to data, from the Brazilian Association of Financial and Capital Market – ANBIMA, accumulated of 12 months, as of July 7, 2014, the sum of investments, redemptions and capital raised, the fund industry in Brazil transacted more than 11 billion Brazilian Reais. It is a considerable financial value, making the industry fund an important tool to channel savings and to invest in the most diverse projects of the economy. In addition, the collapse of some financial conglomerates in Brazil in recent years involving investment funds managed by companies belonging to such conglomerates has highlighted the importance of rules and studies addressing the relationship between the asset manager / fund administrator and the respective investors in those funds. In fact, the research conducted over the years 2013 and 2014 with regulators, academics and other participants in the securities market have demonstrated that there are few studies that can provide assistance in solving problems of this nature, including situations involving conflicts of interest between asset managers / fund administrator and investors. Thus, in face of the economic importance of the fund industry to Brazil and the relevance of the rights of investors / shareholders in the fund industry, and also due to the lack of studies, this work aims at conducting a theoretical and empirical research on the fiduciary relationship between the fund administrator, the asset manager and the respective shareholders of the investment funds. Along these lines, the goal will be to identify the origin, the essential characteristics of this relationship, the risks it can bring to the investor, and the duties it imposes on administrators and managers. We propose to evaluate the historical origin of the fiduciary relationship and understand the theoretical foundations that support its application to investment funds in the United States and Brazil. Based on this theoretical knowledge and under the focus of fiduciary duties applicable to administrators and managers, we develop an evaluation of the standards of conduct contained in the rulings of the Brazilian Securities Commission (CVM), to test the fiduciary relationship characteristics on the CVM rules. Finally, was conducted a study of cases where administrators and managers were convicted for breaking the fiduciary relationship and for failing to comply with specific duties embedded in the standards of conduct previously evaluated. On the basis of theoretical and empirical studies described, it is finally concluded that there are, indeed, essential characteristics in determining a fiduciary relationship between fund administrator / asset manager and the shareholder, and once this relationship is established, fund administrators and asset managers will have to observe the duty of diligence and loyalty to the shareholder. Also on the basis of theoretical and empirical studies, it is possible to say that the CVM standards establish the fiduciary relationship between the fund administrators / asset managers and the shareholder of investment funds, as well as fiduciary duties related to this relationship.