The Superintendence of the Securities Market (“SMV”) authorizes the publication of the draft amendment to the Regulations of Brokerage Agents, adopted by Resolution SMV Nº 034-2015-SMV/01 (“RAI”), of the Regulations of Mutual Funds and their Management Companies, adopted by Resolution CONASEV Nº 068-2010-EF/94. 01.1 (“Mutual Funds Regulation”), the Regulation of Investment Funds and their Management Companies, adopted by Resolution SMV Nº 029-2014-SMV/01 (“Investment Funds Regulation”), and the Regulation of Asset Securitization Processes, adopted by Resolution CONASEV Nº 001-97-EF/94.10 (“Securitization Regulation”).
Resolution SMV Nº 022-2022-SMV/01, published in the Official Gazette El Peruano on September 11, 2001, authorized the dissemination, for public comments, of the above mentioned draft, which, as stated in this resolution, proposes the following main amendments to the above mentioned regulations:
The following major amendments are proposed:
a. Investment advisory activity is regulated in detail, defined as the activity consisting of providing personalized or individualized recommendations to clients regarding investment in one or more Financial Instruments, for the purpose of making investment decisions.
Among the main characteristics of the proposed regulation are the following:
(1) An assessment of the client’s risk profile must be performed.
(2) At least the following information must be obtained with respect to the client:
(3) There must be policies and procedures to prepare and update the client’s risk profile and provide advisory services, which are available to the SMV.
iii. The agent assumes the following obligations:
(1) Make available to the client, a record in “durable medium” with certain minimum information.
(2) Not to imply that the recommendation implies a guarantee of results.
(3) To leave an express record of warning if the investor decides to invest against his/her risk profile, except in the case of Institutional Investors.
b. A more detailed minimum content is required for the intermediation contract.
c. New rules are established for intermediation in instruments not registered in the Public Registry of the Securities Market of the SMV (“RPMV”).
d. Portfolio management is redefined as solely discretionary in nature, in which it is the agent who decides the investments, and its regulation is reformulated as follows:
i. It is established that the assets that are part of the portfolio of a client with a portfolio management contract, constitute an independent and separate estate from the agent’s own assets and from those that the agent manages by virtue of other services authorized to perform.
ii. An additional content of the portfolio management contract is provided.
iii. The possibility of transferring the portfolio to another entity authorized by SMV to manage the portfolio in the event of termination of the contract.
iv. Custody of clients’ cash only in third party brokerage accounts.
v. Agents, their directors, managers and persons in charge of executing investment decisions may not be counterparties in operations on behalf of clients.
vi. The agent must develop an investment policy, with the minimum content established in the draft.
e. It is provided that the placement of own-issued bonds may only be made through public offering, unless it is made exclusively to Institutional Investors.
f. Finally, new rules on publicity and on the content of the Internal Standards of Conduct are proposed.
The following main amendments are proposed:
a. It is established that the management companies have liability for improper acts of promoters.
b . It is contemplated that the management companies may carry out complementary activities, such as portfolio management.
c. The content of the administration contract is reformulated, as well as the redemption, transfer and transfer requests.
d. The investment advice that the management companies may provide is regulated, in a similar manner as in the RAI, although focused on the recommendation of investment in mutual funds.
e. Portfolio management is expressly regulated as a new activity to be developed by the management companies. Said regulation is similar to that proposed for the RAI.
f. Finally, provisions are proposed regarding publicity and remittance of account statements.
The following principal amendments are proposed:
a. It is provided that the management companies shall not assume the costs derived from the contracting of services that by their nature, are required for the fulfillment of the fund’s investment objective.
b. Rules are introduced for greater transparency with respect to charges to the fund.
c. The possibility for the management companies to provide investment advisory services focused on investment in investment funds is regulated. The proposed rules are similar to those that would be included in the RAI.
d. The age of the valuation that may be used for the contribution of non-cash assets to the fund is regulated.
e. The rules for investment in rights on receivables are amended, regulating in particular those contained in negotiable invoices.
f. Further information is required in the notes to the financial statements, as well as in the report called “Statement of Investments of the Fund”.
g. The following are included as new typical assumptions of significant events: those related to the Real Estate Rental Investment Funds (“FIRBI”).
h. Portfolio management is expressly regulated as a new activity to be developed by the management companies. Such regulation is similar to that proposed for the RAI.
i. Provisions regarding publicity and remittance of account statements are proposed.
j. The regulation of the FIRBI is reformulated, so that it has essentially the same characteristics as the Real Estate Rent Securitization Trusts (“FIBRA”).
k. The content of the contract for subscription and transfer of quotas is reformulated.
It is proposed to introduce a Simplified Regime in the case of an offer directed exclusively to institutional investors, with the following characteristics:
a. Automatic registration of securities or programs upon submission of applicable documentation in the RPMV.
b. Documentation to be submitted for registration in RPMV is reduced, as it would only require the submission of:
i. Application
ii. Declaration of agreement to submit information between the originator and the securitization company.
iii. Declaration of effects of fiduciary transfer on the originator’s assets.
iv. Informative prospectus with less demanding content,
v. Appointment document of fiduciary factor or members of the technical committee (FIBRA) or management committee or equivalent.
c. The minimum content of the prospectus is reduced, since it would not require the submission of:
i. Risk factors referring to certain aspects
ii. Financial statements
iii. Risk classification
iv. Information on securities to be acquired by certain persons related to the trust
v. Applicable legislation
vi. Tax aspects
vii. Certain descriptive information about the securitization company, servicer, custodian, arranger, or other persons performing trust functions.
d. The case of “Non-compliance” to the Simplified Regime is regulated.
e. The securitization company, prior to the placement of securities, must obtain an investor’s declaration with the minimum content foreseen in the draft.
f. The securitization company is responsible for verifying the permanent compliance that the holders of securities qualify as Institutional Investors, and must verify that the securities are only transferred to Institutional Investors.
g. If the securities are negotiated in centralized negotiation mechanisms, the securitization company is responsible for verifying that the intermediary agents verify that the securities are only transferred to Institutional Investors.
h. Finally, it is provided that Simplified Regime securities are not taken into account for the calculation of the minimum capital stock.
