As home to the recent World Cup and the upcoming Summer Olympic Games, Brazil has developed an exciting and fast-growing economy and has become a prominent global investment destination. And as Latin America's largest economy and the sixth-largest in the world, Brazil has created a broad and diversified economic infrastructure that offers U.S. companies opportunities to export goods and services to its growing population. Coupled with those opportunities for American exporters are many challenges in establishing a market presence in Brazil. Kegler Brown global business attorneys Martijn Steger, Luis Alcalde, David Wilson and Marcella Gurgel, along with Rafael Villac Vicente de Carvalho from Brazilian firm Peixoto & Cury, presented "Unlocking Brazil: Keys to Success in Latin America's Largest Economy" on September 10, 2014, and explored potential solutions to the challenges of conducting business in Brazil.

1. z

2. z
Introduction to Brazil
Economy in Latin America
Largest country by land mass + population
Largest economy by nominal GDP
Member
Member

3. z
GDP Equivalent Nations by State

4. z
More on BrazilHome to 12% of the planet’s surface waterLargest exporter of beef and chickenAgricultural powerhouse

5. z
Rise of the Brazilian Middle Class40 million new consumers since 20033rd largest market for beauty and healthcare products4th largest market for mobile phones, automobiles and TVs5th largest market for medical equipment

6. MACRO ENVIRONMENT, LEGISLATIVE UPDATE, AND MERGERS + ACQUISITIONS
PRESENTED BY RAFAEL VILLACVICENTE DE CARVALHO

7. M&A ACTIVITY
IN BRAZIL

8. TOTALTRANSACTIONSPERYEAR
Source: PwC
Average of 361 transactions per year
July
Jan-Dec
Average of 454 transactions per year
Average of 210 transactions per year
Average of 362 transactions per year

9. M&A TRANSACTIONSAMOUNT
M&A transactions achieved R$ 58.6 bi in the first semester of 2014.
Source: ANBIMA
Highest number of transactions in the range of R$100M-R$499M.

10. MOSTACTIVESECTORS
Sector
2006
2007
2009
2010
2011
2012
2013
1st semesterof 2014
Information Technology (IT)
49
56
73
58
85
90
104
99
Services
43
66
54
39
42
44
46
63
Food, Beverages and Tobacco
17
35
18
18
30
41
65
58
Energy Generation
61
25
24
19
36
42
30
35
Advertising
19
35
26
22
26
29
24
35
Financial Institutions
21
19
23
22
28
35
24
28
Shopping Centers/Real Estate
5
51
17
23
61
20
36
19
Telecommunication and media
28
27
19
23
28
59
27
18
Chemicaland pharmaceutical products
15
12
9
12
18
21
25
12
Electronicproducts
14
18
8
15
11
19
17
12
Chemical and petrochemical products
21
39
17
9
19
16
18
12
Metallurgy and steel
38
31
20
9
14
15
4
5
Source: KPMG

11. PRIVATEEQUITY/ VENTURECAPITAL
PE funds participation in M&A transactions
Year
Number of M&Atransactions
Participation of PE funds
2014 (1stsemester)
192
43%
2013
796
53%
2012
816
45%
2011
817
42%
2010
808
42%
2009
644
31%
2008
644
20%
Source: ABVCAP, Ernst & Young, KPMG

12. PRIVATEEQUITY/ VENTURECAPITAL
Perspectiveofgrowthofinternalmarket
Fairlyadequateassetprices
Taxbenefitsavailableforinvestmentfunds-FIPS
OUTLOOKFORTHESECTOR
Capitalmarketverydependentonworldeconomy
Incipientsecondarymarket
Highinterestrates
Lowdispersion

13. TYPICALM&A TIMELINE
Valuation
Due Diligence
Definitive
Agreements
NDA
Preliminary
Agreements
(LOI, MOU, etc)
Structuring
Closing
Antitrust(?)

14. PRELIMINARYDOCUMENTS
Non-DisclosureAgreement(NDA) Definitetimeperiod
LOIs,MOUs,etc
Antitrust(?):substancetestapplies

15. Labor
DecreeNo.5452/43(“CLT”);
SubstanceTest;
Corporateveil:arealprotection?
Arbitration?
EconomicGroupliability
DUEDILIGENCE
Tax
LawNo.5.172/66(BrazilianTaxCode);
DetailedtaxandaccountingDueDiligenceinordertoraiseactualandpotentialliabilities;
TransferofGoodwill=SuccessorLiability(substancetestapplies).
Anticorruption/Compliance
FCPA
UKBriberyAct
Anti-CorruptionLaw

16. ANTI-CORRUPTIONLAW–NO. 12,846/2013
ThenewBrazilianAnti-CorruptionLawenteredintoforceonFebruary5,2014;
Strictliabilityoflegalentitiesfor:
I.offeringanydueandadvantagetoapublicofficial,directlyorindirectly, includingthirdpartiesthatarerelatedtosuchpublicofficial;
II.commitingactsorfraudormanipulationinpublicbidsorcontractswithpublicentities;or
III.financing,funding,orsponsoringanyactsthatareprohibitedunderAnti- CorruptionLaw.

17. DEALSTRUCTURE
TaxStructure
Brazilian vehicle -amortize premium
Foreign Company –implications to be verified abroad
Tax treaty?
34% if a Brazilian legal entity;
15% if an individual (Brazilian or abroad –not on a tax haven);
15% if a foreign company –not on a tax haven;
25% if a foreign company –on a tax haven;
CapitalGain

18. ARBITRATIONTIMELINE
DEFINITIVEAGREEMENTS
Brazilian Supreme Court Decision (2001)
Arbitration Law (1996)
New York Convention (2002)
Ratification by
STJ (2005)

19. SHAREPURCHASEAGREEMENT
DEFINITIVEAGREEMENTS
ApprovalbyCADE(AdministrativeCouncilforEconomicDefense)asconditionprecedenttoeffectivenessofthetransaction;
Confidentialityclausehastobeforadefiniteperiodoftime;
Capitalgainoverescrowamount?
Choiceoflaw–caselawisunclearabouttheenforceabilityinBrazilofforeignlawandvenueincertaincases.

20. EMPLOYMENTAGREEMENTS
DEFINITIVEAGREEMENTS
Non-competeclause
Elements:term,territory,subjectmatterandrevocableremuneration;
Non-solicitationclause
Employeesand/orclients;
Righttowork.

21. z
Presented by Luis M. Alcalde
Unlocking Brazil
September 10, 2014

22. z
Franchising Sector in BrazilAs of 2013, there were 2,703 franchise brands operating in Brazil. In 2013, the Brazilian franchising sector grew 11.4% as compared with 2012.

23. z
Franchising Sector in BrazilAlmost 93% of the franchises in Brazil are local franchises, of which 4.8% (121 brands) operate abroad. According to the World Franchise Council, Brazil is the world’s third largest country by number of franchise brands, behind China and South Korea. In 2013, 38 foreign brands entered the Brazilian market.

24. z

25. z
Why so much franchising in Brazil? Growth of malls In 2013, 38 new shopping malls were launched in Brazil. Increase in female purchasing power49.3% of the workforce in Brazil is composed of womenGrowth of middle class40 million new consumers since 2003Demand for language courses and professional courses Brazilian household investments in education has more than doubled in the past 10 yearsNew brandsNational economic stabilityLow unemployment rate 4.9% as of April 2014

26. z
Brazilian Franchise Law 8,955/94
Brazilian Law Applies to All Franchises in Brazil
Brazilian Brand
Spanish Brand
U.S. Brand

27. z
Overview of Brazilian Franchise Law
Franchise definition
Content + timing of Franchise Offering Circular
Penalties for violation of statute

28. z
Franchise defined:
Franchise business is the system by which franchisor grants franchisee the right to: use trademarks or patents, associated with the right of exclusive or semi-exclusive distribution of products or services, and possibly also the right to use technology or business systems, or operational systems developed by or held by the franchisor through direct or indirect compensation, without the characteristics of an employment relationship.

29. z
Franchise Offering CircularPotential franchisee’s must be provided a written Offering Circular (Circular de Ofertade Franquia)
Written
Clear language
Accessible language

30. z
Franchise Offering CircularMust be delivered to franchisee at least ten days prior to: Signing any franchise agreement or pre-agreement, orPayment of any fee by franchisee or associated person or company.

31. z
Historical summary of franchisor
Name & corporate form of franchisor
List of all companies associated with franchisor
Past two years of franchisor financials
All pending litigation against franchisor
Detailed description of franchise & ideal franchisee characteristics (education, experience, etc.)
Minimum Required Disclosures

32. z
Minimum Required Disclosures
General description of business
Activities to be performed by franchisee and requirement for direct involvement operations/management
Total required franchisee investment
Value of initial fees, premises, equipment, inventory, payment terms
All periodic fees, charges & how calculated
Complete list of all franchisees, sub-franchises and drop offs last 12 months

33. z
Rights of franchisee outside of territory
Obligations of franchisee to purchase goods or services from franchisor or others picked by franchisor
Detail of what is offered by franchisor regarding supervision, guidance, training, manuals, location, design/architecture, know-how, intellectual property
Copy of model contract, pre-contract, annexes
Status of franchisor intellectual property before the National Institute of Industrial Property
Post termination issues re intellectual property and competition
Minimum Required Disclosures

34. z
Term, territory, payments, fees, intellectual property
Rights + responsibilities
Confidentiality, termination, dispute resolution
General Content of Franchising Agreement

35. z
Franchise Agreement RegistrationRegistration (averbação) with InstitutitoNacionalde PropriedadeInsdustrial(INPI): Makes the franchise agreement effective against third parties, Legalizes money remittances abroad of payments for the technology provided to franchisee, andLegalizes applicable tax deductions for royalties and other fees paid by franchisee. Franchise Agreement registration is: Optional for internal agreements, and Mandatory, if foreign franchisor.

36. z
What is Filed With INPI? The Franchise AgreementOne original and two certified copies Portuguese translationPower of Attorney from party to local attorneySome of the officials forms to be filed by franchiseeStatement of delivery of Franchise Offering Circular with acknowledgment of receipt by franchisee

37. z
Technicalities to ExecutionExecuted by the parties and two witnessesInitials of parties and witnesses must be on each pageSignature of foreign party must be notarized and legalize by Brazilian ConsulateAgreement must specify complete name and title of representative of the parties and place of executionIf representative is an attorney, the Power of Attorney must be notarized and legalized by the Brazilian Consulate

38. z
Taxation of Franchising Royalties Sent AbroadWithholding Tax 15% rate (or 25% of payments made to low-tax jurisdictions) Contribution of Intervention on the Economic Order (Constribuiçãode Intervençãosobreo DomínioEconômico, or CIDE) 10% rateService Tax (ImpostosobreServiços, or ISS) Varies from 2% to 5% PIS/COFINSImportation (Contributions for social integration program and for financing the social security system) 1.65% for PIS-Import and 7.6% for COFINS-Import

39. z
Non-Compliance with Franchise Offering Circular Requirements
Agreement is voidable by franchisee
Franchisee may demand return of all monies paid in connection with the franchise and recover damages incurred
Franchisee must prove damages and harm suffered

40. z
False Information in Franchise Offering Circular
Agreement is voidable by franchisee
Franchisee may demand return of all monies paid in connection with the franchise and recover damages incurred
Franchisee must prove damages and harm suffered
Criminal penalties

41. z
Implications of Franchise Definition? Brazilian courts may reclassify license relationships as franchise relationships. Substance over form -regardless of how an agreement is titled the court will look at the: nature and characteristics of the relationship, parties’ intention and reason for entering into the agreement, injury sustained by the claimant, andperformance of the agreement and awareness of the agreement defects (tacit confirmation of an annullable act). What are the consequences? Agreement might be annulled, with the return of the membership fee and royalties (art. 4 of Law 8,955/1994).

42. z
Franchise vs. License
FRANCHISE
LICENSE
Governinglaw
Law8,955/94
Civil Code and Law 9,279/96
Permission to use brand nameor patent
Yes
Yes
Product distribution
Yes
No
Know-how transfer
Yes
No
Controlof how the business operates
Yes
No
Fees
Reflect thebrand use, technology transfer, training, and technical assistance.
Reflect the commercial use ofthe licensed good.

43. z
Non-Compete Clauses in Franchise Agreements
Brazilian law upholds reasonable non- compete agreements in franchise context
Up to five years generally considered reasonable -two year periods common
Geographic and material limitations generally required

44. z
Presented by Marcella Gurgel
Unlocking Brazil
September 10, 2014

45. z
Real Estate Market OverviewConstruction on 1,579 projects and 3,001 towers began in 201311% (181) commercial buildings and 4% (56) hotels and flats. São Paulo and Rio de Janeiro have the most expensive office markets in Latin AmericaPrime rental rates of approximately $90 and $100 USD/Sq.m/month, respectively. Excess supply and declining occupancy rates are projected Brazilian commercial real estate market.

46. z
Real Estate Market Overview2014 World Cup and 2016 Olympic GamesAirport privatizationShopping centersSource: FIPEZAP, <http://www.zap.com.br/imoveis/fipe-zap/>.

47. z
Why did Global Logistics Properties invest R$3.2 billion in Brazilian Real Estate? In March 2014, Singapore based GLP bought 34 Brazilian properties from its competitor BR Properties for R$3.2 billion. GLP owns and leases modern logistics facilities across the globe, and stores products for companies including Carrefour, Ponto Frio and Riachuelo. Reasons for the investment: Low real estate price, Increase in Brazilian consumption, Increase of online Brazilian retailsales, Absence of high-quality Brazilian logistics infrastructure, andLong term growth opportunities in Brazil.

48. z
Real Estate Investment
Direct Investment Acquisition and sale of real propertyBuild-to-suit transactions
Indirect Investment Asset-backed securities and issuance of CRI (Certificadosde RecebíveisImobiliários) Private equity funds (Fundosde InvestimentosemParticipações) (FIPs) REIFs(Real Estate Investment Funds) –Law no 8,668/93Legal concept of trust is not recognized in Brazil.

49. z
Commercial Lease Agreement Law 8,245/1991Lease terminationIndefinite termDefinite termSale of property to third party Assignment and sublease Judicial rent reviewTenant’s right of first refusal

50. zDeliver the property in good condition, fit for the intended useGuarantee, during the lease term, the peaceful use of the propertyPay the taxes and fees, and certain insurance premiums, unless otherwise provided in the agreement
Landlord Obligations

51. zPay the rentUse the property in accordance with the purpose disclosed in the lease agreement and maintain it in a good conditionReturn the property in the same condition received at the beginning of the leasePay the ordinary condominium, swage, trash, water, electric and gas bills
Tenant Obligations

52. zNecessary and useful improvementsThe landlord may request the following: Security depositSuretySurety insuranceCommercial tenant’s right to renew the lease agreementStatutory civil and/or criminal penalties
Commercial Lease Agreement Law 8,245/1991

53. z
Eviction + Rent Adjustment ProceedingsRent Adjustment Action (Ação Revisionalde Aluguel) Judicial review of rent amount to adjust for market conditions. Eviction (Ação de Despejo) An eviction claim is a request to recover leased property for a variety of reasons ranging from breach of the lease agreement to the nonpayment of the condominium fees. Eviction Order (generally provides tenant 30 days to vacate the property) How to avoid the termination of the lease agreement, if the basis of the eviction claim is non-payment?

54. z
Purchase Agreement Generally, brokers facilitate transactions by approaching prospective buyers and sellers. Letters of intent and term sheets Purchase and Sale Commitment (Promessade Comprae Venda) Due diligenceInheriting liabilityOwnership of real estate is only transferred upon the registration of the adequate transfer instrument. Brazilian insurance companies do not offer title insurance.

55. z
Real Estate Finance Bank Loans Brazilian Housing Finance System (Sistema Financeirode Habitação) My House My life Programme(ProgramaMinhaCasa MinhaVida) Capital Markets Brazilian Commercial Real Estate FundsPublic Share Offerings Real Estate Securitization Common forms of security granted over real estateMortgages Fiduciary sales

56. z
Restrictions on Foreign OwnershipOwnership of urban real estatein Brazil by foreigners is generally permitted

57. z
Restrictions on Foreign OwnershipOwnership of rural property in Brazil by foreigners is heavily restricted. Ownership by foreign individuals: must be a resident of BrazilOwnership by foreign legal entities: must have authority to do business in BrazilRestrictions on quantity and percentage of land owned by foreignersRestrictions on ownership of land near national borders Restrictions on land useAcquisitions violating the limitations set forth in Law 5,709/71 and Decree 74,965/74 are considered null and void.

58. z
Restrictions on Foreign Ownership
Are Brazilian legal entities controlled by foreign capital subject to the same restrictions? Paragraph 1 of article 1 of Law 5,709/71Constitutional Amendment number 6/1995Brazilian Attorney General’s Office (AdvocaciaGeralda União) opinions2012: São Paulo Court of Appeals (Tribunal de Justiçade São Paulo) granted a Writ of Mandamus ruling that the restrictions did not apply to Brazilian entities controlled by foreigners. December 2012: opinion 461/2012-E of the Brazilian National Justice Council (ConselhoNacionalde Justiça)

59. z
Taxes +Fees ITBI(Real Estate Transfer Tax) Rate of 2% of the declared value of the transactionDeed of Sale (EscrituraPúblicade Comprae Venda) 1% to 1.5% of the declared value of the transaction to be paid to the registryReal Estate Registration (Registrodo Imóvel) 2% of the declared value of the transaction to be paid to Real Estate RegistryLaudêmioApplied to some beachfront properties -2% to 5% of the declared value of the transaction paid to the Registry of Federal Heritage (Secretariado Patrimônioda União) Capital Gain Tax 15% rate for individuals and 34% rate for legal entities Municipal Property Tax (ImpostoPrediale Territorial Urbano-IPTU) Rate varies by municipality (generally, 0.6% of the value of the property)

60. z
Compulsory PurchaseThe Brazilian Federal Constitution guarantees the right to own property, and requires: Payment of just compensationDeprived party is given notice and has an opportunity to be heard Expropriation as a penaltyFailure to use the land according to its social function (Municipal and Federal authorities) Cultivation of psychotropic plants considered illegal under Brazilian LawEminent Domain (Desapropriação) Public needPublic utilitySocial interest

61. z
Presented by David M. Wilson
Unlocking Brazil
September 10, 2014

62. zEmployee

63. z
Labor rights are outlined in the Brazilian Constitution, as well as laws, decrees, provisional measures, ordinances and regulations, international conventions and treaties (ratified by the Brazilian government), company policies, Supreme Court decisions, Superior Labor Court decisions and customs
Labor: it’s more than just the 13thsalary

64. z
Ok, but they aren’t employees; they are… In Brazil, it does not matter what the parties call the relationship, regardless of whether there is a written contract. Courts will weigh factors, including: The regular payment of salaryRequired personal rendering of service Subordination (direct control by employer, hours worked, benchmarks)

65. zThe worker is considered the weaker party in the relationship. In labor-related conflicts, whenever there is a doubt regarding evidence, the Court’s decision will generally favor the worker. The law most favorable to the worker will be applied. The conditions most favorable to the worker will be presumed. Actual facts prevail over written documents. Protected salary (generally cannot lower an employee’s salary) Nondiscriminatory practices
Brazilian Law Favors Employee

66. z
Brazilian Law Favors EmployeeThe Brazilian constitution provides the right to sue as an individual guarantee. Settlement methods exist (e.g., arbitration and union conciliation commissions), but settlement does NOT extinguish the right of the individual’s claim!

67. z13th SalaryMandatory “Christmas bonus” equal to 1/12 the salary for each month of that yearVacationEvery 12 months employees are entitled to 30 calendar days paid vacation, in addition to the 13th salaryOvertime Daily and weekly calculationBase rate + 50% 100% for work on Sunday or a public holiday
Min wage currently R$724 per month
Reading email on cell phone may trigger overtime compensation rights!
Employee Rights

68. z
Termination (For Cause) A dishonest actImproper conductRegularly doing business on behalf of himself or for a third partyCriminal convictionInadequate discharge of dutyHabitual drunkennessConsidered a social problem by some courts and not a just causeViolation of trade secretsAct of disobedience or insubordinationAbandonment of employmentInjurious act to the honor of any person during working hours (except in self defense) Persistent gambling

69. z
Rights Upon TerminationEmployment is NOT “at will” (must have cause for termination) Advanced notice required (generally, 30 day min) Payment of salary owedVacation 13thSalaryFGTSEvery month the employer must deposit amount equal to 8% of employee’s salary into an individual social security fund (FGTS). Upon termination, the employee may withdraw the amount. If termination is not “for cause”, employer must pay a penalty equal to 40% of the amount and an additional 10% penalty to the government.

70. z+

71. z
Agents +Distributors
Agent
Distributor
Activities subject to some control by supplier
Activities subject to only minimal control by supplier
Does NOT take title to goods
Takes title to goods, buys and sells for own account
May handle products of other suppliers; but, is less likely to do so than distributor
May handle products of other suppliers
Generally compensated on a commission basis
Earnings based on resale profit margin
Usually does not warehouse goods
Usually warehouses and physically delivers goods
Usually does not use own capital
Uses own capital
Bears no risk of failure of payment
Bears economic risk of failure of payment by customer
May have power to contract on behalf of the supplier
Has no power to bind the supplier contractually

72. z
Agents +Distributors
Agent
Distributor
Creation
Statutoryrequirements
Contract law
Compensation
Commission
Sells on own account
Termination
Enumerated “just cause” reasons
Contract law

73. z
Governing Law for AgentsUnder Brazilian law 4.886/65, amended by Law 8.420/92, a commercial representative is: one that acts as an intermediary promoting a product or service, looking for customers, negotiating proposals and orders and forwarding them to the seller with whom it has a contractual relationship.
The Civil Code (Law 10406 of 10/01/2002)
refers to Commercial Representation as "Agency".
Agents

74. z
Agent Agreements Mandatory Provisions Term of the agencyObligations of the partiesDescription of the products or goods that are the object of the agencyDescription of the territoryExclusivity Payment structure (commission and time of payment) Termination Commercial Representative must register with the Regional Council of Commercial Representatives
Agents

75. z
Agent AgreementsThe agreement with the representative need not be registered with the government.* This allows for confidentiality of compensation and other commercially important information. This is an important distinction when compared to license and royalty agreements, which may require registration with the Brazilian Central Bank.
Agents

76. z
Agent TerminationBrazilian law requires that all disputes between a foreign company and its commercial representative be venued in Brazil and judged in accordance with Brazilian law. Article 35 of the Brazilian Civil Code provides a list of “just cause” reasons for the termination of a commercial representative agreement. If the relationship is terminated for cause, no indemnification is owed to the commercial representative. However, if the relationship is terminated for reasons other than those listed in Article 35, Brazilian law may require an indemnification payment to the commercial representative.
Agents

77. z
Agent Termination (For Cause) Art. 35 provides a list of just reasons for termination of an agency agreement, these include: neglect of the agent in the accomplishment of his obligation(s) under the contract, engaging in acts which result in loss of commercial credit of the represented, conviction for a crime considered injurious to the represented. The represented company may retain the commissions due to the agent if there is just cause for the termination of the agreement, so long as retaining the funds is made with the purpose of recovering damages caused by the agent.
Agents

78. z
Agent Termination (Without Cause) Generally, an agent is entitled to no less than 1/12thof the total amount received during the time of agency. If the agency is for a specific term, the agent is generally entitled to an amount equal to the monthly average compensation received multiplied by the remaining months left in the agency contract term. Plus, investments made to open the market.
Agents

79. z
Distributor RelationshipsPrimarily regulated by Brazilian contract lawUnlike commercial representative relationships, there are few statutory provisions governing distributorships
Distributors

80. z
Governing Law for DistributorsBrazilian contract law is primarily derived from the Civil CodeAs long as the parties comply with the provisions of the Civil Code related to commercial contracts, they are generally free to define their business relationship as they see fit
Distributors

81. z
Distributor TerminationDistributor relationships allow greater flexibility in defining "just cause" for termination. Disputes over distributorship terminations can be made subject to arbitration procedures, which Brazilian courts may be more likely to enforce than clauses calling for the application of foreign law or a foreign venue.
Distributors

82. z
Agent +Distributors
Agent
Distributor
Creation
Statutoryrequirements
Contract law
Compensation
Commission
Sells on own account
Termination
Enumerated “just cause” reasons
Contract law

83. z
Best PracticesCare must be exercised to not blur the distinctions between an employee, a commercial representative, and a distributor. Long term exclusive contracts should generally be avoided. In Brazil, short term contracts may be considered contracts for "indefinite terms" after the first renewal, by some courts. Foreign companies should fully understand the facts and Brazilian law before creating or terminating a commercial representative or distributorship relationship. Minimum sales requirements should generally be established in the agreement. Standards for product service and maintenance should generally be set out in the agreement. Generally, regular and adequate reporting should be required. Other key points to address often include termination and causes for termination, distribution points and control over distribution in case of termination.

84. z
Best PracticesTo avoid the inadvertent creation of an employment relationship, foreign companies must be mindful of how they interact with their commercial representatives and distributors. Regardless of how the relationship is described by the parties, Brazilian courts will look to the actual behavior of the parties. Brazilian courts consistently hold that subordination is a key factor in the existence of an employment relationship. If the court determines that the parties' relationship is an employment relationship, the foreign company will be subject to Brazilian labor laws including liability for social and welfare contributions and possibly other taxes. Although it is permissible to contract with an individual to act as a commercial representative, it is generally advisable to contract with an entity.

85. z+

86. z
17 Days
-Document preparation (8 days)
-Customs clearance and technical control (4 days)
-Ports and terminal handling (3 days)
-Inland transportation and handling (2 days)
24 Days
-Document preparation (15 days)
-Customs clearance and technical control (4 days)
-Ports and terminal handling (3 days)
-Inland transportation and handling (2 days)
20 Days
-Document preparation (8 days)
-Customs clearance and technical control (4 days)
-Ports and terminal handling (5 days)
-Inland transportation and handling (3 days)
Source: World Bank, Doing Business 2013
Importing a container of goods to Brazil requires 8 documents, takes 17 days and costs $2,275
Importing a container of goods to China requires 5 documents, takes 24 days and costs $615
Importing a container of goods to India requires 11 documents, takes 20 days and costs $1,200
Baseline:
-medium size business
-ship to economy’s largest business city
-private, LLC
-non hazardous goods
-dry cargo, 20-foot full container
* All US exports are also subject to US export controls *
General Import Process + Timeline

87. z
Brazilian Import ProcessRegister with the government registration systemSecretary of Foreign Trade SECEX, SISCOMEX systemSubject to significant variability Obtain import license, if requiredAutomaticNon-Automatic (process may take several months) ANVISA, IBAMA, MAPA, DECEX, CNEN, ANP, ANEEL, DPF, COMEX, MCT . . . RadarSimplifiedOrdinary

88. zII-Import Duty
varies based on product & Country of origin (NCM, HS)
0-35%
ImportDuty
0-5% raw materials, 20% finished consumer goods, 35% autos and luxury items
0-35%
12% avg
Import Duty
6% IPI-Industrial Product Tax
Varies based on product (CNM) up to 300% tobacco
20% avg
VAT
16%
VAT
19%
PIS-Social Integration Program Contribution
1.65%
COFINS-SocialSecurity Financing Contribution
7.6% ICMS-State Tax
7-25%*
SP 18%
*Current legislation & recent Supreme Court decisions may impact the applicable ICMS rate.
Import Taxes + Duties

89. z
Ex-tarifárioProgramTariff reductions generally reduce the applicable tariff from 16% to 0-2%, II and may also reduce IPI ResoluçãoCAMEX 35/2006The importer must file for the Ex-tarifárioA certificate or statement from the appropriate body, technical reports, public consultation among other things may be considered to determine the existence of a similar domestic good
If no similar good is produced domestically, an importer may qualify for reduced or eliminated tariffs

90. z
Ex-tarifárioProgram
Even if a domestic good performs a similar function, an importer may qualify for the program if: Higher quality product or serviceHigher productivity of equipment (may consider part of an integrated system that increases overall productivity) Increased efficiencySupplies requiredConsumption of energy or raw materialsReduced delivery timeOther specific performance factors may be considered depending on product

91. zManaus Free Trade Zone–ZFMWestern Amazon–AOFree Trade Areas –ALCGeneral ProcessCert of importer eligibility on the SISCOMEXClassification of imported goods HS / NCMSubmit InvoiceRegister Transaction on SISCOMEXImport Licenses
Free Trade Zones
ICMS credit to importer
PIS/COFINS/II/IPI reduction
IRPJ reduced 75% until 2013

92. z
Employee Considerations: The Other Side Business visaPermanent visaLegal entity administratorPrivate investorForeign bank representativeTemporary visaLabor visaTechnical visa 1 year / 90 DaysApprenticeship / professional trainingTouring vessel
Permanent Establishment Issues

93. z
Employee Considerations: The Other Side Business VisaTo attend meetings, make commercial contacts90 days, may be extended additional 90 days in 12 month periodPermanent VisaLegal entity administrator5 years, R$ 600k registered with Central Bank of Brazil, or R$150k & plan to generate at least 10 new Brazilian jobs within 2 years* Temporary VisaTechnical Visa 1 year / 90 Days3 years experience in the functional fieldSpecific for customer, or training planResumeCriminal background checkFile with Ministry of Labor in BrasiliaWhen enter Brazil, register with Federal Police to obtain RNEIf d/n register, then daily fine
Permanent Establishment Issues

94. z
Thank You!
Luis M. Alcalde
Of Counsellalcalde@keglerbrown.com
614.462.5480
David M. Wilson
Associate
dwilson@keglerbrown.com
614.462.5406
Rafael VillacVicente de Carvalho
Associate
rafael.villac@peixotoecury.com.br
(55 11) 3218-8443