Contrato derivativo não padronizado: a impropriedade de sua classificação como valor mobiliário

Abstract

The purpose of this dissertation is to analyse and criticize the inclusion, through Law No. 10.303/2001 of derivatives contracts, specifically the non-standardized derivatives, or derivatives negotiated in OTC markets, in the list of instrumentos characterized as securities according to article 2 of Law No. 6,385/1976. Firstly, we should analyze derivatives agreements themselves, its concept, legal nature, types and classification. In a second instance, we analyzed the concept of security, the definition of it in the foreign and local Law. We further analyzed the elements that comprise a security. Finally, we verified the improperty of the inclusion of non-standardized derivatives in the list of securities included in Law, as well as the analyses of derivatives agreements vis-a-vis the elements that comprise a security. We also analyzed the impacts of the inclusion of those agreements in the list of securities, specially, the regulation by the Brazilian Exchange Commission. (Comissão de Valores Mobiliários)