Avoided Deforestation (REDD) and Indigenous ... - Amazon Fund

e considered a security under Brazilian law and subject to regulation by the Securities and
Exchange Commission, it is first necessary to issue a normative act explicitly defining CERs in
a way that submits them to the regime of Law nº 6.385. 25 Therefore, although they possess the
general characteristics of securities, CERs cannot be considered securities in Brazil because they
are not specifically defined by law as such. This situation could change if Bill nº 493/2007 were to
be approved, which specifically designates them as such. 26 In addition, decisions regarding the
taxes that would be applicable to the commercialization of CERs will also depend on the legal
definition of the carbon credit.
In view of the various possibilities for legally classifying carbon credits and the lack of
regulation, the Brazilian tendency is to make a lato sensu classification of CERs as incorporeal
or intangible assets, negotiable by means of assignment. The conclusion, thus, is that a stricto
sensu definition of the legal nature of CERs is unnecessary in the present evolutionary stage of
the domestic legal system, as long as they are granted tax exemptions that would ensure an
adequate competitiveness in the Brazilian market. 27 The same rationale is applicable to other
carbon credit certifications outside the CDM.
As far as the present opinion is concerned, and in the absence of specific regulations in
the Brazilian legal system, carbon credits (CERs or others, like VERs) may be understood as legal
goods – since they have economic value and are able to constitute the object of legal transactions
– whose ownership is directly derived from the acknowledgment of the right to control the
resources and activities that will lead to the reduction or emission of GHGs. This is what occurs,
for example, with emission reductions derived from the change of an energy matrix, such as the
25 SOUZA, Clóvis S. and MILLER, Daniel S.. Protocolo de Quioto e o Mecanismo de Desenvolvimento Limpo (MDL); as
Reduções Certificadas de Emissões (CERs), sua Natureza jurídica e a regulação do mercado de valores mobiliários no
contexto estatal pós-moderno (The Kyoto Protocol and the Clean Development Mechanism; Certified
Emissions Reductions (CERs), their legal nature and regulating the securities market in the post-modern
state context ), CVM 2003.
26 Bill whose objective is to arrange the organization and regulation of the carbon credit market on the Rio de
Janeiro state Stock Exchange.
27 MACHADO FILHO, Haroldo and KERLAKIAN SABBAG, Bruno, “Classificação da Natureza Jurídica do Crédito de
Carbono e Defesa da Isenção Tributária Total às Receitas Decorrentes da Cessão de Créditos de Carbono como
Forma de Aprimorar o Combate ao Aquecimento Global” (The Classification of the Legal Nature of Carbon Credits
and the Defense of Total Tax Exemption for the Revenues Resulting from the Cession of Carbon Credits as a Way
of Improving the Fight against Global Warming), in Congresso Internacional de Direito Ambiental – Mudanças
climáticas, biodiversidade e uso sustentável de energia (International Congress of Environmental Law – Climate
Changes, biodiversity and sutainable energy use), São Paulo: Imprensa Oficial do Estado de São Paulo, 2008, p.811.
88 Av o i d e d d e f o re s t A t i o n (redd) A n d i n d i g e n o u s p e o p l e s: experiences, chAllenges A n d o p p o r t u n i t i e s in t h e A m A zo n c o n t e x t