On January 18th 2008, Alfredo Sérgio Lazareschi Neto — a minority investor in companies listed on the Novo Mercado — filed a complaint with the Brazilian Securities and Exchange Commission (CVM), claiming that the guarantee of confidentiality in arbitration procedures, described in the Market Arbitration Chamber (CAM)'s bylaws and regulations, violates shareholders´ essential right to monitor the company's affairs, as per Article 109, Subparagraph III of Law 6,404 of December 15th 1976. In his claim, the investor requested that the BM&FBovespa be required to: 1) suppress the confidentiality provision for matters taken to the Market Arbitration Chamber from the aforementioned bylaws and regulations; and 2) create means that enable the dissemination of information regarding ongoing and completed arbitrations and, in exceptional situations, that enable approval of the procedures´ confidentiality by the CVM, upon request by the parties and provided the request is grounded.
The CVM's Specialized Federal Attorney General's Office stated that the confidentiality of the CAM's procedure is essential to protect parties against the misuse of information by third parties that are not part of the procedural relations. It also added that there are no inconsistencies with the corporate legislation regarding information disclosure and that arbitration judgments must only become public if deemed to be a material act or fact under Instruction 358/02. Furthermore, it stated that there is no legal support to request that BM&FBovespa provide means to obtain information pertaining to ongoing and extinct arbitrations.
The CVM's technical area followed the PFE's understanding and denied the investor's requests. Not satisfied with the PFE's issued opinion, the investor filed an appeal on October 15th 2008, in which he restated the requests.
While examining the appeal, rapporteur Otavio Yazbek highlighted that Subsection III of Article 109, Law 6,404/46, describes shareholders' monitoring rights "as prescribed herein". Thus, in several paragraphs, the Law determines the content of such monitoring rights and contemplates scenarios in which the shareholder must have access to specific information. In some cases, the Law regulates this access for certain levels of shareholding. Therefore, in the rapporteur's understanding, there isn´t a generic and absolute shareholder right to access information in Brazil , which confirms that there are no inconsistencies in the provisions set forth in the CAM's rules and regulations. In other words, it would only be a violation if confidentiality prevented mandatory information from being provided to the market, which is not the case. For that reason, Yazbek voted against the appeal. The board followed the rapporteur's vote. (2/9/2010 CVM Board Meeting; Rapporteur Otavio Yazbek).