Financial Stability Report November 2002 5 Rules on prudential regulation 5.1 Introduction In the wake of adoption of the Real Plan, significant improvements were introduced into Brazilian prudential regulations. The reasons underlying these measures were the restructuring and consolidation of the banking industry, the need for introducing and developing instruments for risk quantification and monitoring and efforts to adjust to internationally accepted standards. Up to that point in time, financial institutions had operated in a framework of high inflation and had specialized in very short-term operations (overnight), obtaining enormous gains on float operations and arbitrage among different indexing factors. Banks developed instruments that made it possible for them to obtain the benefits consequent upon the inefficiencies generated by inflation, maximizing gains by minimizing the time it took to transfer funding. In synthesis, the revenues generated by the distortions that marked the period of high inflation were so voluminous and so significant that the financial result consequent upon the sector’s inherent activities was often relegated to a position of secondary importance. The Real Plan sharply reduced the gains generated by float operations. In this context, national financial institutions had to adapt to the new scenario by seeking the critical mass needed to operate with reduced spreads, curtailing costs and producing economies of scale. Parallel to the alterations that occurred on the internal economic scenario, the SFN was subjected to a process of globalization and internationalization. Since adoption of the Real Plan, more than one hundred financial institutions were authorized to initiate operations in the country or expand already existent 91 Financial Stability Report November 2002 operations. Many of these cases involved acquisitions of stock control or participation in already existent institutions. The entry of new institutions into the Brazilian market made a decisive contribution to increasing competitiveness, diversifying products and services and enhancing technological levels, with obvious advantages for their clientele. The banks that did not have the structure or critical mass required to cope with the new scenario were forced to seek new alternatives. As a result, the process of financial system adjustment was marked by innumerable mergers and takeovers, at the same time in which various institutions were simply terminated Under the impact of these changes, Banco Central adopted a series of measures to adapt its supervisory structure to the new demands of financial and capital market control and monitoring. The major objective of these measures was to achieve enhanced efficiency in the administration of the risks consequent upon financial institution activities, while diminishing conflicts of interest in the management of third party capital, defending client rights and defining principles of corporate governance marked by transparency and good practices. It should be stressed that the major rules issued in seeking these objectives, which are analyzed below, had the purpose of not only expanding the operational freedom of financial market, but above all adopting the recommendations set down by the Basel Committee on Banking Supervision, the IMF and World Bank and, in this way, harmonize the supervisory procedures applied to SFN financial institutions with internationally recommended standards. In short, this is viewed as a question of the greatest importance to the competitiveness of the Brazilian banking industry on the world’s globalized markets. 5.2 Major decisions Adoption of Basel Accord – Resolution 2,099/ 1994 From the prudential point of view, this was a landmark decision since the supervisory approach that utilized the net worth of institutions as its fundamental reference (liability based approach) was substituted 92 Financial Stability Report November 2002 by definition of limits calculated according to the level of credit risk generated by the institution’s operations (assets weighted by risk). Resolution 2,099, dated August 17, 1994, incorporated the 1988 Basel Accord recommendations into the Brazilian supervisory structure. In summary, these recommendations determined that financial institutions operating in the country must maintain a minimum capital level that is compatible with the degree of credit risk inherent to their assets. These rules determined that risk weighting factors – 0%, 20%, 50% and 100% - be attributed to assets, in such a way that the minimum required capital is defined as a percentage applied to the result of the weighting process – currently 11%, as determined by Circular 2,784, dated November 27, 1997. Since this is a standardized methodology developed by the Basel Committee on Banking Supervision for the entire international market, the Accord adopted a rather conservative stance on determining the different weighting factors, leaving the final decision as to whether to adopt a percentage of more than the original 8% to achieve the desired security level to the discretion of the bank supervision authorities of each of the respective countries. It is important to note that, since issue of Resolution 2,099/1994, several changes have been introduced at both the national and international levels as a result of the evolution of both the financial market itself and the instruments with which it operates. These alterations were made either at the recommendation of the Basel Committee or as a result of the need to adapt to internationally accepted practices or even in light of the specific criteria applied to the risks of the assessed assets. From this point of view, emphasis should be given to the review of a specific point that involves assets represented by tax credits, for which Banco Central had originally determined a weighting factor of 100%. Over the course of time, several factors arose that generated considerable questioning as to the adequacy of this factor, particularly in light of the real possibility of realizing the asset in question, particularly when one considers that: a) article 15 of Law 9,065, dated June 20, 1995, determines that the offsetting of fiscal losses is limited to 30% of the real profits of each fiscal year; 93 Financial Stability Report November 2002 b) article 31 of Law 9,249, dated December 26, 1995, states that a non-operational fiscal loss can only be offset by profits of the same nature. In order to better adapt the weighting factor to the capacity for realizing assets represented by tax credits and considering their importance to the balance sheets of some institutions, the factor was raised to 300%, to be implemented according to the following schedule: 150% as of August 31, 1999; 200% as of December 31, 1999; 250% as of June 30, 2000 and 300% as of December 31, 2000. Resolution 2,099/1994 also defined new rules covering access to the SFN (constitution of new institutions, mergers, acquisitions and transfers of stock control), as well as corrective measures and penalties to be applied to institutions that do not comply with the specified minimum capital standards. Credit risk center – Resolution 2,390/1997 Another significant advance was creation of the Credit Risk Center, a system that financial institutions utilize to identify and provide information on their clients – including both individuals and legal entities – that have debt balances equal to or greater than R$ 5.000,0013. The objective of the Risk Center is to make information available as to total debt, joint liabilities and credits written-off as losses, itemized by individual borrowers and conglomerates. The Risk Center has made it possible to more efficiently calculate a client’s payment capacity and, consequently, analyze the overall credit risk of each institution’s portfolio. Information from the Credit Risk Center is utilized to reinforce supervisory activities by making it possible to analyze risk concentration by debtor, measure risk and assess the quality of a specific portfolio and judge the efficiency and consistency of the classification and credit granting models used by institutions on a comparative bases. 13/ The value of the operations notified to the Risk Center was initially specified at R$ 50 thousand and has been gradually decreased to the current level. 94 Financial Stability Report November 2002 Currently, the Risk Center is in a process of renovation in order to expand and improve its operations, creating a structure that will meet the needs of Banco Central in terms of information (regulatory function) and of the entire financial system in its efforts to reduce default levels and, in this way, increase the volume of credit (credit bureau function). Swap operations – Capital requirements – Resolution 2,399/1997 In 1997, new regulations were introduced determining capital requirements for coverage of the credit risk involved in swap operations. Two new components were added to calculation of the PLE: a) reposition cost, obtained by marking-to-market all contracts with positive results in the process of valuation and evaluation; b) potential future exposure, obtained on the basis of the remaining term of the operation. Swap operations are currently regulated by Resolution 2,873/2001. Since these are highly versatile and low cost instruments, they have been increasingly utilized by economic agents as an important source of hedging. Permission to negotiate contracts using stocks and commodities as well as the price indices of these assets as references has created improved conditions for institutional investors, stock issuing companies and investments funds to control their risk profiles more effectively. Exchange risk – Resolution 2,891/2001 The first rule on exposure in gold and foreign currency was set down in Resolution 2,606/1999 which limited the total mismatching of assets and liability exposures in foreign currency and specified the criterion of PLE allocation for coverage of the market risk consequent upon exposure to exchange rate and gold price variations, thus introducing the concept of equity requirements based on market risk. 95 Financial Stability Report November 2002 Consequently, exchange risk control is based on application of a risk factor to the level of exposure (F, currently equivalent to 100%) and the maximum exposure limit (30%) in relation to PR. This calculation is applicable to all institutions that have net exposure in gold and exchange greater than 5% of their capital. These criteria have been progressively updated over the course of time in order to adjust to the level of exchange volatility. The most recent update was introduced by Circular 3,156 in 2002. The criterion of accounting entries in contra accounts at the value of the capital required to cover exchange rate risk and gold price fluctuations has the objective of enhancing the transparency of the information regarding the risks assumed by the institutions. Investment funds – Resolutions 2,451/1997 and 2.486/1998 Insofar as investment funds are concerned, rules were adopted with the objective of reducing conflicts of interest between management of capital belonging to fund management institutions themselves and that of the funds they manage. In this context, Resolutions 2,451/1997 and 2,486/1998 determined that institutions are obligated to erect the so-called Chinese wall between their trust activities involving management of third party resources and their commercial bank activities authorized by Banco Central. The primary objective is to instill a sense of enhanced professionalism and transparency in the management of investment funds, portfolios and clubs by these institutions, including procedures for designating directors or managing partners who will be exclusively accountable for the management of such resources. Another important alteration concerns the question of disclosure and transparency as regards the risks and profile of the fund in question. Later on, Banco Central reassessed the rating criterion applied to financial investment funds and investment funds that operate with investment fund quotas, emphasizing the credit and market risks faced by these portfolios. This should be seen as part of 96 Financial Stability Report November 2002 the ongoing effort to increase the transparency of the risks involved in this type of operation for the investing public. Internal controls – Resolution 2,554/1998 The regulations on internal controls deal not only with compliance with the laws and rules applicable to the institution in question, but also with the entire structure of information disclosure, risk control, definition of accountability, policies and procedures, with the aim of preparing the different functional levels of these institutions to perform their activities in an adequate manner. With this, Resolution 2,554/1998 includes a definition of the functions of all those ranging from the level of board of directors to upper management personnel, including responsibility for approval and periodic revision of global business strategies and policies relevant to the financial institutions. These institutions should present the system of monitoring and risk exposure limits to Banco Central, as defined by the management staff through utilization of adequate systems of internal controls. The Resolution in question also deals with matters related to ethical standards, money laundering and consumer defense, among others. Qualification of managers – Resolution 2,645/ 1999 The adaptation of regulations dealing with the administrators of financial institutions and other institutions authorized by Banco Central had the objective of updating the rules applied up to that time to the dynamics of the transformation taking place within the SFN. Among the alterations introduced by Resolution 2,645, one of the most important is the fact that it provides society with the conditions needed to exert greater control and accountability over those whose names are proposed for acceptance as investment fund managers, since it obligates all new candidates to positions within the financial 97 Financial Stability Report November 2002 system to issue declarations of objectives. Aside from being in keeping with internationally utilized procedures, the project was submitted to a process of public hearings and several of the suggestions received at the time from various financial institutions, professional associations and the public in general were incorporated into the text of the Resolution. Credit operation ratings – Resolution 2,682/1999 The fundamental objective of Resolution 2,682/1999 was to define more inclusive procedures for rating credit portfolios and determining a technically more appropriate system for calculating the provisions to be set aside to cover loan losses. This system is not based solely on variables inherent to the operations itself, such as arrears, but also takes a prospective view of credit operations by given due consideration to the debtor’s cash flow generation capacity, the economic segment within which the debtor operates, macroeconomic and sectoral aspects and other considerations. Once the credit analysis has been carried out on the basis of the procedures described in the previous paragraph, the operation must be rated in one of the nine levels defined in the regulations. The possible ratings range from AA (very low risk) to H (high risk of default), with each of the weighting brackets being associated to a minimum provisioning level. For example, the minimum provision for a credit rated at level D is 10%. In the same manner, credits in arrears are subject to a differentiated rating process defined in regulations. An example of how this is done would be that operations in arrears over a period between 15 and 30 days would be rated no higher than risk level B. These rules made it possible to enhance the transparency level of credit operations since institutions are obligated to include explanatory notes in their financial statements with a breakdown of the risk ratings of their credit operations. Aside from this, it is also important to stress that, on the basis of information available in the Credit Risk Center, Banco Central can require additional provisioning in light of the responsibility of the debtor before the SFN. 98 Financial Stability Report November 2002 Credit assigns – Resolution 2,686/2000 Resolution 2,493/1998 authorized credit assigns to entities that do not belong to the SFN and created conditions so that companies constituted with specific characteristics could make securitization of receivables feasible by acquiring such credit rights. In order to expand securitization possibilities, Resolution 2,686/2000 was issued permitting credit assigns with joint liability. With issue of this Resolution, unreceived credits can return totally or partially to the assignor institution. It also introduced alterations into the criteria governing the capital requirements of the assignor institutions. The criterion adopted is quite similar to that used internationally and requires that the total or partial transfer of the risk consequent upon the assigned credits be clearly identified. With this, institutions should maintain sufficient capital to cover the joint liability assumed or any other risk consequent upon the operation of credit assigns. The broadening of securitization possibilities has various positive impacts on the financial market, particularly since it makes it possible to spread risks more widely. The expected result is greater efficiency in the allocation of credits and lesser loan costs for both companies and individual borrowers. Interest rate market risk – Resolution 2,692/ 2000 Continuing the process of implementing criteria covering capital requirements for risk coverage, Resolution 2,692/2000 was issued dealing with interest rate market risk. The rules set down in this Resolution are the result of extensive studies on risk consequent upon the exposure of operations subject to interest rate fluctuations and have the objective of summarizing the major aspects of the different international approaches adopted by the Basel Committee on Banking Supervision and the major Latin American regulatory agencies. 99 Financial Stability Report November 2002 The methodology was developed on the basis of the sum of the amounts representative of the Value-at-Risk of the operations referenced to interest rates. The regulations incorporate dynamic aspects into the process of PLE allocation and contrast sharply with the standard static approach previously recommended by the Basel Committee on Banking Supervision. The major drawback of the previous system was the fact that, in scenarios of normality, it could produce excessive capital requirements while, in times of stress, capital requirements could sometimes be insufficient. Stock participation and consolidation of financial statements – Resolutions 2,723/2000 and 2,743/ 2000 This regulation on the consolidation of financial statements includes stock participation in the country and abroad. Resolutions 2,723 and 2,743, both of which were issued in 2000, required overall consolidation of all the financial and nonfinancial companies in which there is administrative, financial or stock control, together with standardized accounting policies. The regulators, market participants, stockholders, investors and other users of information will only be capable of precisely assessing the financial conditions of a given institution, its performance, business affairs and risks related to its basic activities, if they are provided with a satisfactory level of transparency, with reliable information, based on good accounting principles and efficient systems of internal controls. This rule raises a subject that has been hotly discussed for many years and that can be summarized as the segregation of activities into two major blocs – financial and nonfinancial activities – and is concerned, above all else, with the danger of cross-contamination between these two groupings. With issue of the aforementioned Resolutions, it became possible to evaluate the risk assumed by financial institutions in their totality, since the risk incurred by nonfinancial participation is perceived clearly at the moment of consolidation. Aside from this, application of operational limits to 100 Financial Stability Report November 2002 consolidated bases has made it more difficult for financial institutions to maintain participation in nonfinancial companies. Complementary capital – Resolution 2,837/2001 The constant expansion of financial markets and systems has demanded that financial institutions modernize and make use of increasingly more dynamic and competitive instruments. In this sense, Resolution 2,837/2001 was an important step forward in broadening the opportunities and flexibility of financial institutions. What this instrument did was to better characterize some of the Reference Capital (PR) level II instruments – the so-called hybrid capital instruments and subordinate debts – capable of increasing the levels of capitalization and, therefore, the leverage of the institutions in question. Resolution 2,802/2000 had introduced the PR concept with the aim of calculating the operational limits of financial institutions and other institutions authorized to operate by Banco Central. Two levels of capital were defined: level I, composed of net worth and capital reserves and profit; level II, composed of subordinated debts, hybrid capital instruments and debts, revaluation reserves, contingency reserves and others. It should be noted that utilization of level II capital in the composition of PR must comply with certain limits: revaluation reserves are limited to 25% of PR; subordinate debts and redeemable preferred shares are limited to 50% of level I capital and the total value of level II capital is restricted to the value of level I capital. However, regulatory agents must systematically monitor these instruments, seeking always to ensure the transparency and solidity of the financial system as a whole. Thus, the rules seek to determine conditions required for the instruments issued by these institutions to be apt for utilization in the composition of PR. It should be stressed, nonetheless, that they must be verified beforehand by Banco Central. 101 Financial Stability Report November 2002 Liquidity risk – Resolution 2,804/2000 Completing the series of decisions taken in recent years with the aim of leading financial institutions to adopt models capable of perceiving the risks consequent upon financial and capital market operations, Resolution 2,804 was issued in 2000 with the aim of dealing with the question of liquidity risk. In very brief terms, this instrument sets down procedures for maintaining systems of control that make it possible to permanently accompany the positions assumed on financial and capital markets, in such a way as to highlight the liquidity risk involved in the development of their activities. The measure gave due consideration to a text published in February 2000 by the Basel Committee on Banking Supervision, with guidelines for the correct management of this type of risk, as well as the procedures adopted in countries with longer financial market traditions, such as the United States, the United Kingdom and Canada. Quarterly financial information (QFI) – Circular 2,990/2000 Circular 2,990/2000 required that financial institutions elaborate and remit QFI documents to Banco Central, the financial system, market analysts and the public in general. The information is available on the Banco Central homepage on the Internet. Elaboration of these documents is required in light of the importance of providing the market with immediate access to transparent and well-structured accounting information on the operations of financial institutions, as well as information on the asset and liability structures of these organizations. Thus, aside from accounting information, the QFI incorporates financial, statistical and managerial information and represents a significant step forward in the sense of establishing standardized procedures for the disclosure of such information, fully in line with the international effort to foster increased market discipline based on constantly greater transparency. 102 Financial Stability Report November 2002 International banking statistics (IBS) – Circular 3,047/2001 The obligation of quarterly remittance of the IBS document, covering the international assets and liabilities of banks located in Brazil, was instituted by Circular 3,047/2001. The primary purpose of the aggregate data is a response to the BIS request for two types of information to be included in the statistics developed by that institution with respect to international banking activities: Locational and Consolidated International Bank Statistics, published regularly in the Bis Quarterly Review – International Banking and Financial Market Developments. These data are also made available internally and include: identification of the counterpart by residence and sector, composition of operations by currencies, principal instruments, remaining terms, and those that involve risk transfers between countries. Internet banking – Resolution 2,817/2001 The steady dissemination of the use of the Internet for financial operations has required that Banco Central evaluate the impact of internet banking on the financial system and define the rule changes necessary to regulate this activity. In the framework of this objective, Resolution 2,817 was issued defining conditions for opening and operating deposit accounts by electronic means, as well as the minimum security considerations to be followed in offering this type of relationship to an institution’s clients. The rules have the objective of avoiding irregular electronic operations by disciplining the systems to be used in opening accounts. This demands that institutions observe minimum standards of transparency and security in the systems utilized, coupled with full identification of those responsible for the operations, including both the administrators and the institution itself. These rules determined that, within their internal control systems, financial institutions were obligated to have specific sectors charged 103 Financial Stability Report November 2002 with information security systems. Aside from this, it was decided that deposit accounts operated by electronic means could only receive funding from conventional accounts in the name of the same person or redemptions of investments in the name of the account holder at the institution responsible for the electronic account. Parallel to this, among other demands, financial institutions should have externally certified systems of security and prevention designed to combat money laundering, as well as telephone service centers available to their clients. Finally, institutions are obligated to assume responsibility for any losses that may be caused to clients as a result of the inefficiency or fragility of the technology offered. Risk diversification per client – Resolution 2,844/ 2001 Resolution 2,474, dated 1998, defined risk diversification parameters and set the limit per client at 25% of the PLA, which is to be observed by institutions in contracting credit and leasing operations and providing guaranties, as well as in relation to credits consequent upon operations with derivatives. Following issue of Resolution 2,802/2000, which introduced the concept of PR to replace the PLA concept, for purposes of verifying operational limits, it became necessary to carry out new studies on the question. These studies, which take due account of internationally adopted procedures, concluded that, from the prudential point of view, more precise monitoring of large exposures is desirable, particularly in cases of individual exposures that, though they do not exceed the level of 25%, do indicate a high degree of risk concentration. Resolution 2,844 was issued in June 2001 and defined a limit of 600% of PR for the sum of Concentrated Exposures (CE), defined as exposures per client or security issuing entity equivalent to 10% or more of PR. 104 Financial Stability Report November 2002 Defense of client rights – Resolutions 2,878/2001 and 2,892/2001 Insofar as the international financial system is concerned, banking regulations tend, to a great extent, to deal with questions involving protection for the clients and users of financial services. Recent legislation and rules recommend preservation of the interests of these clients and users and specify certain procedures to be adopted in their defense. In Brazil, this question has taken on considerable importance in recent years, making it necessary to incorporate the principles of the defense of consumer rights as defined in current legislation into the regulations for which the CMN and Banco Central are responsible. Consequently, Resolutions 2,878 and 2,892 were issued in 2001 and deal with the procedures to be observed by financial institutions in their relations with clients and users. The ultimate purpose of these instruments is to issue regulations that ensure equity in consumer relations in the framework of the National Financial System. Among the principal aspects cited by the norms in effect, one should cite the guaranty of transparency in contractual relations involving the rendering of services as well as the client’s right to rapid responses to consultations, complaints and requests for information. At the same time, specific rules are set down for the purpose of prohibiting matched operations in which, to obtain one service, a client is forced to contract another, and of guarantying that institutions will provide for the needs of the desabled in offering their services. Credit derivatives – Resolution 2,933/2002 and Circular 3,106/2002 Credit derivatives are instruments that make it possible to transfer credit risk to another party, without the effective transfer of the underlying asset. These instruments are important to mitigating credit risk, an element that is essential to efforts to reduce banking spreads. 105 Financial Stability Report November 2002 In Brazil, operations with credit derivatives were regulated by Resolution 2,933/2002 and Circular 3,106/2002. These instruments define which institutions can buy or sell hedge against credit risk and make it possible to negotiate two types of credit derivatives: credit default swaps (credit swaps) and total return swaps (total rate of return swaps). Credit swap contracts require transfers of risk from the transferring party to the receiving party which then assumes the obligation of buying the referenced credits or, simply, paying a specific amount should the credit involved deteriorate. In this process, the total rate of return swap determined that, for a specific reference asset, the entire flow of payments that originated in that asset will be transferred from the transferring party to the receiving party, which will then return to the first party the cost of obtaining the funding invested in the reference asset. Should this asset not be honored, the entire depreciation occurred will be paid by the receiving party to the transferring party. These rules also include other measures, such as that which limits the contracting of these operations to those situations in which the buyer of hedge holds the originating credit or when the underlying asset is negotiated normally on organized markets or, in other words, when its prices can be verified, at the same time in which they restrict the volume of the risk transfer to the value of the underlying asset. Accounting criteria – Marking-to-Market – Circulars 3,068/2001 and 3,082/2002 In November 2001, Circular 3,068 was issued, followed by 3,082 in January 2002, defining internationally recommended criteria for financial institutions in general to be used in evaluating securities and derivative financial instruments. More precisely, these norms represented an effort to adapt to the declaration made by the International Accounting Standards Board (IASB), issued in December 1998, and by the FAS 115 and FAS 133, both of which were published by the Financial Accounting Standards Board, the entity charged with issuing accounting norms. In this framework, one should stress, among the principal measures 106 Financial Stability Report November 2002 adopted, the possibility of classifying different types of securities in distinct categories, according to financial capacity and the intention of negotiating them or not. These papers are to be evaluated at their market value or maintained in portfolio until their maturity. In summary, Circular 3,068 defined three possible categories for classifying these securities: papers for negotiation, papers available for sale and securities held to maturity. In an analogous way, Circular 3.082 incorporated the same procedures into derivative financial instruments (hedging accounts). 5.3 Improvements in prudential Regulations Financial market dynamics have made it essential that the evolution of the sector be closely monitored, so that supervisors and regulators will be in a position to ensure that there will always be an adequate regulatory and supervisory structure in place as needed to respond adequately to the demands for financial system control and monitoring, the defense of client rights, transparency and market discipline. These are the principles that guide the work carried out by Banco Central in recent years, as well as the projects now under way. Among the most important projects, one should cite the reform of the rules governing access to the financial market, regulation of offset agreements, the project aimed at improving the rules governing the work of independent auditors, participation in the studies leading to the New Basel Accord, as well as others related to risk management, with particular emphasis on those that would expand and improve the Credit Risk Center and incorporate capital requirements as needed for covering the risks of the stock and commodities markets. The reform projects covering access rules and the regulating of offset agreements have already been placed before public hearings and, once the stage of analysis of the comments received during these hearings is concluded, will be submitted to the appreciation of the CMN. 107 Financial Stability Report November 2002 Banco Central is also concerned with the question of participation in the revision of the 1988 Capital Accord by the Basel Committee on Banking Supervision. This process is expected to lead to the most important changes in international standards on prudential regulations since 1988. With this in mind, a specific work group was created to monitor the discussions of the New Basel Accord, elaborate proposals and evaluate the level of Brazilian adequacy, as well as the domestic market consequences of its adoption. 108