Fiduciary duty in the 21st century: Brazil

“ANBIMA is currently trying to introduce requirements on social issues such as slave or bonded labour into its guidance on investment due diligence. One of the obstacles to progress is that asset managers are concerned about their liability for these issues. That is, what might happen if their due diligence fails to identify relevant issues, or if they do identify issues but do not take effective action? Brazilian legislation is not clear on who is responsible when social issues are identified. This need for regulatory certainty is a key determinant of the progress that will be made.”

José Carlos Doherty (Chief Executive Officer, ANBIMA)

Drivers for Action

The Brazilian investment industry is at a relatively early stage in the adoption of ESG integration and long-term responsible investment. Interviewees pointed to a number of potential drivers of change:

Foreign investors concerned about the social or environmental performance of the companies they invest in. This may lead to investors calling for some form of stewardship code where investors work together to raise the social and environmental performance of companies.The Establishment of the ASX Corporate Governance Council.
The growing awareness of the investment implications of social and environmental issues such as access to water, child labour and workers’ rights. One interviewee commented that environmental issues may start to receive greater attention in coming years as Brazilian regulatory authorities start to pay greater attention to the effective enforcement of environmental legislation.
The PRI interviewees suggested that the PRI could play an important role in catalysing changes through building market awareness of ESG integration, through setting out and communicating the investment case for investors to focus on ESG issues in their investment practices and processes, and through encouraging large asset owners to become signatories (and, in turn, exerting pressure on other investment industry actors).
The reputational concerns of wealth managers and asset owners. These institutional investors want to ensure that they do not invest in companies that have corruption issues and have started to push their investment managers to look closely at these issues when making investments.

Barriers to Progress

Interviewees identified a number of distinct barriers to progress:

The absence of regulatory or self-regulatory requirements for investors to focus on ESG issues in their investment practices and processes.
Weaknesses in the implementation and oversight of Resolution 3.792, specifically that there is no analysis of how the environmental and social requirements of the Resolution have influenced investment practice.
Weaknesses and inconsistencies in corporate reporting on environmental and social issues. This makes it difficult for investors to take account of these issues in their investment processes.
The perception that responsible investment may limit investors’ investment universe and have a negative impact on investment performance.

Recommendations

In addition to the global recommendations, we recommend that:

Comissão de Valores Mobiliários (CVM) and Associação Brasileira das Entidades dos Mercados Financeiro e de Capitais (ANBIMA)

Comissão de Valores Mobiliários (CVM) and Associação Brasileira das Entidades dos Mercados Financeiro e de Capitais (ANBIMA) should, for asset owners and investment managers respectively:

clarify that fiduciary duty requires them to pay attention to longterm factors (including ESG factors) in their decision-making, and in the decision-making of their agents;
clarify that they are expected to take account of ESG issues in their investment processes and decision-making, and to proactively engage with the companies and other entities in which they are invested.

Superintendência Nacional de Previdência Complementar (Previc)

Superintendência Nacional de Previdência Complementar (Previc) should strengthen its oversight and implementation of Resolution 3.792 by analysing and reporting on the implementation of the environmental and social issues requirements of Resolution 3.792 and its effect on investor practice and performance.

Read Fiduciary duty in the 21st century: Brazil roadmap