Fundos de investimento: uma análise da natureza jurídica da responsabilidade civil de seus administradores

Abstract

This paper intends to review the literature on the legal nature of investment fund asset managers civil liability. Investment funds are basically a collection of co-owned resources obtained from individual investors within the securities market with the purpose of purchasing and managing financial assets under specialized administration. Investment funds administration is burdened by a legal person authorized by the Brazilian Securities Exchange Comission (Comissão de Valores Mobiliários) to professionally perform asset management. The legal entity enfranchised with fund administration duties is required to adopt standards of conduct that are ethical and righteous towards individual investors, conveying diligence, loyalty and transparency. Fund managers are held liable by the damages inflicted on investors caused by the non-performance of their duties as well as by damages resulted from tortious acts caused by certain fund employees. Manager liability will assume different features according to the profile of the investor that was damaged. In order to answer the main issue, this paper will analyse the concept of investment, the importance of fund industry to the economic and social development of Brazil, the legal nature of investment funds, manager obligations, theoretical limits to civil liability in the realm of capital markets, the variations of investment fund manager liability, the intersections between investor and consumer protection. In the end, this paper will offer a position on regards of the legal nature of investment fund manager civil liability.