Superintendency of Stock Market (SMV) Regulations
Operational Risk Management Regulation, approved by SMV Order No. 027-2016-SMV/01, is amended. By Superintendency’s Order No. 014-2019-SMV/01 published on March 29, 2019, the SMV amended said regulation, mainly, to: (i) introduce minimum risk management standards in terms of “cybersecurity”—defined as the condition of being protected against consequences of different types resulting from undesired situations or events on cyberspace—by entities subject to this regulation; (ii) establish the requirement to prepare and assess an evaluation report of significant changes occurred in the entity, prior to decision-making thereon; (iii) reinforce monitoring activity by the entity in case of subcontracting service or other activities—including intra-group subcontracting—especially significant subcontracting of “cloud” service; and (iv) set the obligation of the entities to address key operational risk indicator reports in details as per regulation.
CAVALI S.A. I.C.L.V. Internal Regulation, approved by CONASEV Order No. 057-2002-EF/94.10, is amended. By Superintendency’s Order No. 008-2019-SMV/01 published on March 16, 2019, the SMV amended Chapter VI “Services Related to Accounting Entry” of the Internal Regulation thereby in order to regulate recording, purposes and removal of provisional filing pursuant to Act No. 30737 – “Act Ensuring Immediate Payment of Reparation to the Peruvian State for Bribery and Related Crimes”.
The amendment provides that in case of recording such provisional filing in CAVALI Accounting Entry, bringing forward an imposition on stocks pursuant thereto, said transfer shall only be carried out prior authorization by the Ministry of Justice and Human Rights. For such removal of provisional filing, the same procedure will be carried out.
Latin American Integrated Market (MILA) Regulation, approved by CONASEV Order No. 107-2010-EF/94.01.1, is amended. By Superintendency’s Order No. 011-2019-SMV/01 published on March 3, 2019, the SMV amended some sections of said regulation, mainly, to: (i) recognize the possibility to carry out operations in such market by mechanisms additional to “broker-to-broker order routing” [defined as foreign brokers order to local market by electronic means using systems of a local stock exchange brokerage corporation (SAB)] to accept—for instance, in order to carry out operations in said market—the entry of proposals from the local stock exchange brokerage corporation by the foreign broker or other proposal forwarding ways permitted by the local regulation; and (ii) conduct initial public offerings in the local stock exchange without any additional local authorizations, or stocks registered and/or authorized by any regulator or supervisor of foreign markets being part of MILA, provided that other conditions set forth by law are met.
The aforementioned Order also gives to local SABs a certain time to adjust their correspondent agreement to the new types of operations being introduced.
Asset Securitization Process Regulation, approved by CONASEV Order No. 001-97-EF-94.10, is amended. By Superintendency’s Order No. 009-2019-SMV/01 published on March 2, 2019, the SMV amended said regulation, mainly to regulate thoroughly the Real Estate Rent Investment Securitization Trusts (FIBRA) whereby a special section (Title VI) is created in such regulation.
Among main new amendments set forth in connection with FIBRA, the possibility to offer on an international basis trust participation certificate, in which case a regulated brokerage corporation shall participate and the SMV shall be empowered to request information regarding the final holders in case of placement in international accounts.
Moreover, new transaction possibilities are considered in respect to their 70% asset to be invested in their own investment-purpose properties, as real property purchase or cash repurchase option investment, or disbursement representing advance payments made by virtue of a contract or agreement which purpose is to purchase or built a real property using FIBRA. Also, the way how the corresponding real property purchase is made is regulated.
On the other hand, possibilities to use remaining FIBRA assets (of such 70% asset investment) are increased.
Among other aspects to be highlighted from the approved amendment that tends to create an ad hoc FIBRA regulatory environment, the following can be noted: (i) the regulation being introduced in compliance with a Meeting of participation certificate holders, as well as those powers corresponding thereto; (ii) additional obligations established for securitization corporations; (iii) the existence of a Technical Committee responsible for FIBRA investment decision; (iv) possibility to appoint one or more trust managers; (v) manager’s powers to create “portfolio” participation certificate; (vi) need to deliver an offering notice of such certificate placement; (vii) generating a preemptive right in case of trust “capital increase”; and (viii) need to fix dates for recording and delivery.
Effective date of Section 86-A of the Regulation of Mutual Funds of Stock Investment and their Management Corporations referred to in Legislative Order No. 861 “Stock Market Act”, Title IX, approved by CONASEV Order No. 068-2010-EF/94.10, is postponed. By Superintendency’s Order No. 007-2019-SMV/01 published on March 1, 2019, the SMV approved to postpone the effective day of said Section. As part of their promotion duties, it sets forth the liabilities of the Mutual Funds Management Corporations: to advise participants and potential participants of mutual funds managed by them by determining the risk profile of such participants; and to give a tailored advice expecting the mutual fund investment or divestment decision each one would make, whether they are duly informed later. The regulations provides that such advice shall be provided in case of subscription, switching, and installment transfer.
SMV Drafts
Dissemination of the MILA Regulation Amendment Draft on SMV webpage is approved. By SMV Order No. 006-2019 published on February 13, 2019 in the Official Gazette “El Peruano”, the SMV authorized to disseminate the aforementioned draft.
Dissemination of the Asset Securitization Process Regulation Amendment Draft on SMV webpage is approved. By SMV Order No. 005-2019 published on February 13, 2019 in the Official Gazette “El Peruano”, the SMV authorized to disseminate the aforementioned draft.
Dissemination of the Amendment Draft of Regulations on Organization of Entities Requiring SMV Authorization on SMV webpage is approved. By SMV Order No. 004-2019 published on February 6, 2019 in the Official Gazette “El Peruano”, the SMV authorized to disseminate the aforementioned draft.
Dissemination of the Independent Directors Qualification Guidelines Amendment Draft on SMV webpage is approved. By SMV Order No. 003-2019 published on February 4, 2019 in the Official Gazette “El Peruano”, the SMV authorized to disseminate the aforementioned draft.
Dissemination of the Brokerage Corporation Regulation Amendment Draft on SMV webpage is approved. By SMV Order No. 002-2019 published on February 4, 2019 in the Official Gazette “El Peruano”, the SMV authorized to disseminate the aforementioned draft.
Dissemination of the Amendment Draft of the Dissemination Policy on Regulatory Drafts, General Legal Provisions, and other SMV Administrative Procedures on SMV webpage is approved. By SMV Order No. 001-2019 published on February 1, 2019 in the Official Gazette “El Peruano”, the SMV authorized to disseminate the aforementioned draft.
Para mayor información pueden contactar a Paul Castritius.
Esta comunicación ha sido elaborada por el área Bancaria y Financiera de Rodrigo, Elías & Medrano Abogados.
El contenido del presente informativo está referido, entre otros, a la descripción objetiva de disposiciones legales. No comprende la opinión que Rodrigo, Elías & Medrano Abogados tiene respecto de las mismas, por lo que no puede ser considerado como una fuente de interpretación o absolución de consultas.
