Law No. 10,214, of March 27, 2001 – Operation of Clearing and Settlement Chambers and Service Providers in the Brazilian Payment System

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Presidency of the Republic

Civil House

Undersecretariat for Legal Affairs

LAW No. 10,214, OF MARCH 27, 2001

Conversion of Provisional Measure No. 2,115-16, of 2001

Provides for the operation of clearing and settlement chambers and service providers within the Brazilian payment system, and other provisions.

I make known that the PRESIDENT OF THE REPUBLIC adopted Provisional Measure No. 2,115-16, of 2001, which the National Congress approved, and I, Jader Barbalho, President of the Federal Senate, for the effects of the sole paragraph of art. 62 of the Federal Constitution, promulgate the following Law:

Art. 1 This Law regulates the operation of clearing and settlement chambers and service providers within the Brazilian payment system.

Art. 2 The Brazilian payment system referred to in this Law comprises the entities, systems and procedures related to the transfer of funds and other financial assets, or to the processing, clearing and settlement of payments in any of their forms.

sole paragraph. The Brazilian payment system also includes, besides the check‑clearing service and other paper instruments, the following systems, by way of authorization granted to the respective chambers or clearing and settlement service providers by the Central Bank of Brazil or the Securities Commission, within their areas of competence:

I – clearing and settlement of electronic debit and credit orders;

II – transfer of funds and other financial assets;

III – clearing and settlement of transactions with securities and other securities instruments;

IV – clearing and settlement of transactions carried out on commodity and futures exchanges; and

V – others, including operations with financial derivatives, whose chambers or service providers have been authorized in the manner set out in this article.

Art. 3 Multilateral netting of obligations is permitted within the same chamber or clearing and settlement service provider.

sole paragraph. For the purposes of this Law, multilateral netting of obligations is defined as the procedure intended to determine the sum of the bilateral debtor and creditor results of each participant with respect to the others.

Art. 4 In systems where the volume and nature of business, at the discretion of the Central Bank of Brazil, are capable of posing risk to the soundness and normal functioning of the financial system, chambers and clearing and settlement service providers shall, without prejudice to obligations arising from law, regulation or contract, assume, with respect to each participant, the position of contracting party for the purpose of settling obligations carried out through the chamber or service provider.

§ 1 The chambers and clearing and settlement service providers are not liable for the performance of the original obligations of the issuer, nor for redeeming the principal and accessories of their securities subject to clearing and settlement.

§ 2 The systems referred to in the caput must have mechanisms and safeguards that enable the chambers and service providers to ensure the certainty of settlement of the operations cleared and settled therein.

§ 3 The mechanisms and safeguards referred to in the preceding paragraph include, among others, appropriate security devices and rules for risk control, contingencies, loss‑sharing among participants, and direct execution of positions in custody, contracts and guarantees provided by participants.

Art. 5 Without prejudice to the provision of § 3 of the preceding article, chambers and clearing and settlement service providers responsible for one or more systemically important environments shall, in accordance with regulation issued by the Central Bank of Brazil, separate a special patrimony, composed of assets and rights necessary exclusively to guarantee the fulfillment of the existing obligations in each of the systems they operate.

§ 1 The assets and rights that constitute the special patrimony referred to in the caput, as well as their fruits and earnings, shall not be commingled with the general patrimony or other special patrimonies of the same chamber or service provider, and may not be used to fulfill or guarantee any obligation assumed by the chamber or service provider in a system other than the one to which they are linked.

§ 2 The acts of constituting the separate patrimony, with the respective allocation, shall be subject to annotation or registration, in the manner provided by law or regulation.

Art. 6 The assets and rights that make up the special patrimony, as well as those offered as guarantees by participants, are inalienable and may not be subject to seizure, confiscation, search and seizure or any other judicial constriction act, except for the fulfillment of obligations assumed by the chamber or service provider itself in the capacity of contracting party, pursuant to the provisions of the caput of art. 4 of this Law.

Art. 7 Civil insolvency regimes, composition, intervention, bankruptcy or extrajudicial liquidation to which any participant is subjected shall not affect the performance of its obligations assumed within the chambers or clearing and settlement service providers, which will be completed and settled by the chamber or service provider, in accordance with their regulations.

sole paragraph. The proceeds from the realization of guarantees provided by the participant subjected to the regimes referred to in the caput, as well as the securities, securities instruments and any other assets that are the object of clearing or settlement, shall be destined to the settlement of the obligations assumed within the chambers or service providers.

Art. 8 In the cases referred to in the preceding article, or when the default of any participant in a system is verified, the settlement of obligations, observed the regulations and procedures of the chambers or clearing and settlement service providers, shall occur:

I – by the transfer of the negotiated assets or the transfer of funds, in the case of financial movement; and

II – by the delivery of the product of the realization of guarantees and the use of the mechanisms and safeguards referred to in §§ 2 and 3 of art. 4, when the negotiated assets or funds to be transferred are nonexistent or insufficient.

sole paragraph. If, after the measures set out in items I and II have been adopted, a positive balance remains, it shall be transferred to the participant, integrating the respective mass, if applicable; and if a negative balance remains, it shall constitute a credit of the chamber or clearing and settlement service provider against the participant.

Art. 9 Violation of the legal and regulatory norms governing the payment system subjects chambers and clearing and settlement service providers, their administrators and members of fiscal, consultative and similar councils to the penalties provided:

I – in art. 44 of Law No. 4,595, of December 31, 1964, applicable by the Central Bank of Brazil;

II – in art. 11 of Law No. 6,385, of December 7, 1976, applicable by the Securities Commission.

sole paragraph. Decisions rendered by the Central Bank of Brazil and the Securities Commission, based on this article, may be appealed, without suspensive effect, to the Council of Resources of the National Financial System, within fifteen days.

Art. 9º Violation of the legal and regulatory norms governing the payment system subjects chambers and clearing and settlement service providers, their administrators and members of fiscal, consultative and similar councils to the provisions of Provisional Measure No. 784, of June 7, 2017, and Law No. 6,385, of December 7, 1976. (Amended by Provisional Measure No. 784, 2017)

Effective date terminated

sole paragraph. An appeal, within thirty days, without suspensive effect, of decisions rendered by the Central Bank of Brazil or the Securities Commission, based on this article, shall be filed with the Council of Resources of the National Financial System. (Amended by Provisional Measure No. 784, 2017)

Effective date terminated

Art. 9º Violation of the legal and regulatory norms governing the payment system subjects chambers and clearing and settlement service providers, their administrators and members of fiscal, consultative and similar councils to the provisions of:

I – art. 44 of Law No. 4,595, of December 31, 1964, applicable by the Central Bank of Brazil;

II – art. 11 of Law No. 6,385, of December 7, 1976, applicable by the Securities Commission.

sole paragraph. Decisions rendered by the Central Bank of Brazil and the Securities Commission, based on this article, may be appealed, without suspensive effect, to the Council of Resources of the National Financial System, within fifteen days.

Art. 9 Violation of the legal and regulatory norms governing the payment system subjects chambers and clearing and settlement service providers, their administrators and members of fiscal, consultative and similar councils to the penalties provided in Law No. 6,385, of December 7, 1976, and other legal provisions. (Amended by Law No. 13,506, 2017)

I – (repealed); (Amended by Law No. 13,506, 2017)

II – (repealed). (Amended by Law No. 13,506, 2017)

sole paragraph. An appeal, within thirty (30) days, without suspensive effect, of decisions rendered by the Central Bank of Brazil or the Securities Commission, based on this article, shall be filed with the Council of Resources of the National Financial System. (Amended by Law No. 13,506, 2017) (See Decree No. 9,889, 2019)

Art. 10 The National Monetary Council, the Central Bank of Brazil and the Securities Commission, within their respective spheres of competence, shall issue the norms and instructions necessary for the compliance with this Law.

Art. 11 The acts performed based on Provisional Measure No. 2,115‑15, of January 26, 2001, are validated.

Art. 12 This Law enters into force on the date of its publication.

Congress of the Nation, March 27, 2001; 180th of Independence and 113th of the Republic.

Senator JADER BARBALHO – President of the National Congress

This text does not replace the version published in the Official Gazette on March 28, 2001 (extra edition) *