Fundos de investimento: qualificação, disciplina legal e potencialidades funcionais

Abstract

Investment funds are analyzed under the scope of the legal qualification (functional analysis) methodology purposed by the ‘civil-constitutional doctrine, determining their legal nature as a “segregated patrimony” (a legal unincorporated entity) and thus negating the usual classifications purposed by doctrine, through the condominium and corporation theories. Furthermore, the possibility of unregistered investment funds in Brazil is considered, and the proximity of Brazilian investment funds with the Anglo-American institute of the trust is discussed. Secondly, the effects associated with this classification are engaged in an attempt to define the applicable legal framework, in matters of Brazilian law and regulations, especially in respect to (i) relations established among unitholders, (ii) relations established between unitholders and the fund’s service providers, and (iii) the fund in itself, as a legal unincorporated entity. Thirdly, some of the potential applications of Brazilian investment funds are discussed: when assembled similarly to the so-called ‘indirect legal transaction’, investment funds are employed in Brazilian practice as an actual substitute for the Trust, an institute that remains without recognition in Brazilian law, in spite of its adoption by many jurisdictions around the world.