The investment fund industry currently occupies a significant position in the Brazilian economy. In 2024, the sector's net inflows reached R$60.7 billion. By 2025, Investment Funds in Credit Rights (FIDCs) were approaching R$1 trillion in assets, a figure that highlights not only the economic importance of this market but also the growing complexity of the legal relationships that underpin it.
This complexity became particularly evident in two themes recently highlighted by Business & Labor News ClippingOn one hand, there is the civil liability of the different participants in the fund structure and the limits of the application of the Consumer Protection Code; on the other hand, there is the effectiveness of the arbitration clause included in the fund's regulations and its ability to bind the unit holders to arbitration.
These are distinct issues, but they converge on the same point: the need to assign to each market participant the duties, responsibilities, and protective instruments corresponding to their legal position.
A structure that does not accommodate generic responsibilities.
The article “Responsibilities in the fund market and the limits of the Consumer Protection Code”, by Paulo Sérgio Domingues, Mauricio Moreira Menezes and Fernanda Bragança, published in ConJur on September 14, 2026, and reported in Business & Labor News Clipping The document dated September 16, 2026 (item 2) examines precisely this issue.
The funds operate through specialized agents — administrator, manager, distributor, custodian, and other service providers — whose responsibilities are governed by CVM regulations. CVM Resolution 175 sought to provide greater precision to this structure, distinguishing the competencies of each participant.
The administrator performs functions related to administration and operational structure; the manager is responsible for portfolio management and investment decisions; the distributor handles the placement of shares with investors. These are distinct roles, with distinct duties and, consequently, responsibilities that should not be automatically interchangeable.
In this context, REsp 2.230.861/GO, judged by the 3rd Panel of the Superior Court of Justice (STJ) in May 2026, gains special relevance. As analyzed in the article, the Court rejected the idea of automatic joint liability among the various agents, emphasizing the need to examine the specific actions of each participant.
The article itself points out that the ruling does not resolve all controversies, including because it is not a binding precedent and because there are still pending issues regarding the criteria for potential joint liability.
This caveat is important. In the capital markets, legal certainty does not mean the absence of liability, but... Predictability regarding who is held responsible, why, and based on what conduct..
And where does arbitration come in?
It is precisely at this point that the second theme becomes particularly interesting.
The doctrinal article highlighted in item 15 of Business & Labor News Clipping The decision of September 15, 2026, analyzed the arbitration clause included in the fund regulations and its ability to bind investors who join the structure.
The issue is not merely procedural. If the regulations constitute a fundamental instrument for the legal organization of the fund, the prior definition of the arbitral forum can provide greater predictability to the resolution of disputes involving available patrimonial rights.
But the sophistication of arbitration demands equal sophistication in the formation of consent.
An investor's entry into the fund may represent acceptance of the set of rules that structure that legal relationship. However, issues such as the circulation of units in the secondary market, subsequent changes to the regulations, and the effects of these changes on unit holders who have already joined deserve specific treatment.
The existence of an arbitration clause, therefore, does not eliminate the problem of consent. On the contrary, it makes defining consent even more important. when, how, and to what extent did the investor become bound by the arbitration agreement?.
The retail investor and information asymmetry
The expansion of the fund market also increases the participation of less sophisticated investors. The debate on civil liability draws attention to the need to protect the unqualified investor, without this necessarily implying indiscriminate joint liability for all members of the chain.
This balance is fundamental.
Investor protection does not need to be built upon the automatic transfer of risk from one's conduct to someone who did not engage in it. Similarly, private autonomy and arbitration cannot be understood as mechanisms capable of overriding legal, regulatory, or informational obligations.
The legal challenge lies in combining Investor protection, private autonomy, transparency, clear delimitation of responsibilities, and efficiency in conflict resolution..
Arbitration is not a substitute for regulation.
Arbitration can resolve available asset disputes, but it does not replace the regulatory role of the CVM (Brazilian Securities and Exchange Commission). The regulatory authority's sanctioning power remains within its own sphere. The existence of an arbitration agreement does not, therefore, mean the privatization of capital market regulation.
The legal architecture consists of different levels: state regulation, legal and contractual responsibilities, fiduciary duties, investor protection, and private dispute resolution mechanisms.
Legal precision as a requirement of a sophisticated market.
Perhaps this is the main lesson that emerges from reading the two themes together.
The more sophisticated the capital market becomes, the less room there is for generic legal solutions.
It is not enough to state that "the fund" is liable. It is necessary to identify which obligation is under discussion, who assumed it, which agent had the authority to perform the act, and what conduct actually caused the damage.
Similarly, it is not enough to simply state that "arbitration is taking place." It is necessary to verify the formation of the agreement, its subjective scope, the moment of the shareholder's acceptance, any subsequent changes, and the patrimonial and disposable nature of the dispute. This precision is important for administrators, managers, and other service providers, as well as for investors.
A legally secure capital market is not one where no one is held accountable. It is one where... Responsibilities are predictable, duties are clearly defined, information is adequately provided, and dispute resolution mechanisms are known before a conflict arises.
It is precisely to keep up with these transformations — in Business Law, Labor Law, the capital market, and their inevitable intersections — that the Business & Labor News ClippingCondensed, up-to-date legal information, tailored for those who need to understand not only the news itself, but also its potential legal and business implications.
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