Neither Partners nor Anonymous: the De Facto Manager as a Solution for DAO Liability in Brazil

--

Without a registered address, without formal incorporation, and without a legal representative — how can organizations moving billions of dollars be held accountable?

In November 2024, United States District Judge Vince Chhabria, of the Northern District of California, issued a ruling that reverberated throughout the global digital asset market. In denying the motions to dismiss in Samuels v. Lido DAO, the court consolidated the understanding that a decentralized autonomous organization — commonly referred to as a DAO — may be characterized as a general partnership under California law. Major funds such as Paradigm, Andreessen Horowitz, and Dragonfly were ultimately named as jointly and severally liable partners.

Although confined to a foreign jurisdiction, the case made explicit a problem that Brazilian law still handles with considerable discomfort: how to hold accountable — for regulatory, fiscal, and procedural purposes — structures that have no registered address, no formal incorporation, and no legal representative, yet move billions of dollars.

It is estimated that approximately 13,000 DAOs operate worldwide, collectively involving 6.5 million token holders and over USD 24.5 billion in treasury assets, according to DeepDAO. Protocols such as MakerDAO and Uniswap control significant financial infrastructure and, as on-chain DAOs, are not formally registered as legal entities. In Brazil, adoption is growing and litigation is beginning to emerge, yet the legal framework remains silent.

A Problem the Civil Code Cannot Resolve

DAOs are entities structured through smart contracts — self-executing code running on blockchain networks — and governed by tokens that confer proportional voting rights. Deliberations are recorded immutably and executed by the protocol itself. This architecture, strictly speaking, does not exist under the Brazilian Civil Code: the legal personality of private entities derives from the registration of constitutive instruments (art. 985), a formality that DAOs, by definition, do not fulfill.

If the rule were applied without qualification, these structures would be subject to the regime of informal partnerships (sociedades em comum), entailing joint and unlimited liability for all partners (arts. 986 to 990). However, what does “partner” mean in an organization comprising thousands of anonymous individuals scattered across the globe, many of whom merely purchased tokens on an exchange? A literal application collapses: it transforms passive investors into universal debtors for the acts of a technical core over which they never exercised any control.

That is precisely the distinction Judge Chhabria drew in Lido. While recognizing the DAO as a general partnership, the court excluded the fund Robot Ventures from the defendant class — on the grounds that the mere holding of tokens, absent active participation in governance, is insufficient to attract liability. The earlier precedent in CFTC v. Ooki DAO had already established that decentralization does not confer jurisdictional immunity, but Lido refined the criterion: what matters is who effectively controls the protocol.

From Partner to De Facto Manager

This opens an interpretive avenue for Brazil. Rather than forcing the DAO into an existing corporate form, the analytical focus shifts from the figure of the “partner” to that of the de facto manager — a category already recognized by Brazilian legal doctrine and applicable by analogy to arts. 1,011 and 50 of the Civil Code. The theoretical foundation combines the Theory of the Legal Fact (Teoria do Fato Jurídico) with the UNIDROIT Principles on Digital Assets (2023), which enshrine effective control as the central criterion for the attribution of rights and obligations.

In practice, this framework distinguishes participants into three distinct categories. At the apex stand the technical controllers — developers or members who hold private keys or participate in multisig schemes capable of altering critical protocol parameters. They are liable for unlawful acts (arts. 186 and 927 of the Civil Code) and, in consumer relations, subject to strict liability (art. 12 of the Consumer Protection Code), a tendency reinforced by EU Directive 2024/2853. In the middle tier are major token holders who concentrate a significant share of tokens and actively participate in governance — a reference threshold of 5%, in dialogue with art. 159, §4, of Law 6,404/76 and CVM Resolution 44/2021, always assessed on a case-by-case basis. At the base are passive participants, protected by the principle of asset autonomy (art. 49-A of the Civil Code), whose mere token ownership does not constitute affectio societatis.

Taxation and Procedural Matters

The tax rationale follows the same axis. Art. 126, III, of the National Tax Code (CTN) dispenses with formal registration for purposes of passive tax capacity: the existence of an economic unit suffices. Normative Instruction RFB 2,291/2025, known as DeCripto, aligned Brazil with the OECD’s Crypto-Asset Reporting Framework (CARF), imposing reporting obligations on Virtual Asset Service Providers (VASPs). However, peer-to-peer transactions and interactions with smart contracts remain in a regulatory vacuum. The solution lies in the joint and several liability of de facto managers (art. 124, II, of the CTN) and in the requirement of a resident fiscal representative — a solution inspired by the Utah DAO Act and the figure of the physical validator under the Liechtenstein Token and Trusted Technology Service Provider Act (TVTG).

At the procedural level, the challenges are even more concrete. How does one serve process on a party with no physical address? The New York Supreme Court confronted this question in LCX AG v. John Doe, authorizing service of process through the transfer of an NFT to the defendant’s digital wallet. The Brazilian proposal advocates for the admission of this technique, grounded in the principle of procedural instrumentality of forms (art. 277 of the Code of Civil Procedure) and the primacy of electronic means (art. 246, §1), provided that the infeasibility of conventional methods is demonstrated and that recent activity in the wallet is verified. Jurisdiction may be established pursuant to the effects doctrine (arts. 21 and 22 of the CPC), anchored in the place of damage, the assets held in national territory, or the domicile of the de facto managers.

The European Model as a Reference

Comparative experience suggests that Continental European solutions bear a closer affinity to the Brazilian legal order than their North American counterparts. The Swiss DLT Act (2021) and the Liechtenstein TVTG (2020) operate within the logic of codified typicality, attributing direct liability to identifiable legal figures. The MiCA Regulation (EU 2023/1114), applicable since December 2024, reinforces that the presence of effective control attracts licensing requirements — a position convergent with the FATF’s 2025 guidelines. In the United States, the DUNA Act (Wyoming, 2024; Alabama, 2026) offers an alternative path: the decentralized unincorporated nonprofit association, endowed with legal personality and limited liability, while preserving on-chain governance.

The Silence That Chooses

International case law has already established that technical decentralization is not a legal shield. In Brazil, while the legislature has yet to address the issue, the judiciary absorbs the cost of legal uncertainty — at the risk of producing ad hoc, contradictory decisions incapable of offering predictability to investors, users, and creditors.

In Digital Law, legislative omission is not a neutral stance. It is a choice. And, as a rule, it benefits those who know how to exploit the gap — at the expense of those who remain without legal protection.