The Superintendency of Banking, Insurance and Private Pension Fund Administrators (“SBS”) amended the Regulations of the Special Regimes and Liquidation of Companies of the Financial System and the Insurance System approved by SBS Resolution Nº 455-99 (“Regulations”) and other provisions. Through SBS Resolution Nº 2192-2023 (“Resolution 2192”), published in the Official Gazette El Peruano on June 26, 2023, the SBS amended several legal provisions to establish a temporary regime or vary the one already provided, for situations in which there are causes for surveillance or intervention generated, among other causes, by a reduction in the effective equity of the supervised companies as a result of the application of regulatory changes. In this sense:
(a) The Regulation is amended to establish that:
In determining the grounds for submission to the surveillance regime contemplated in Article 95, paragraphs 1 (b) and 2 (h) of the Regulations, and the grounds for intervention contemplated in Article 104, paragraph 4 of the General Law of the Financial System and the Insurance System and the Organic Law of the Superintendency of Banking and Insurance, Law Nº 26702 (“General Law”), applicable to the companies of the financial system authorized to take deposits from the public, COFIDE, Banco de la Nación, Banco Agropecuario and Fondo MIVIVIENDA S. A., until December 31, 2023, the reduction of the effective equity originated by the deduction of the assets referred to in clauses v, vi and vii of literal h) of numeral 1.1 of Article 184 of the General Law, as well as the deduction of the assets recognized for the difference between the fair value and the nominal value of the loan portfolio acquired, by application of Legislative Decree Nº 1531, must not be considered, and,
For the determination of the cause for revocation of the certificate of operating authorization contemplated in numeral 2 of Article 28-A of the General Law, applicable to companies of the financial system other than those mentioned in the preceding paragraph, the reduction of effective equity described in the preceding paragraph should not be considered until December 31, 2023.
b) The terms established in Article 3 of SBS Resolution Nº 3952-2022, for the adaptation to the solvency requirements set forth in Article 199 of the General Law, are amended.
c) The term established in Article 4 of SBS Resolution Nº 3952-2022, for the entry into force of the limits in the computation of effective equity referred to in Article 185 of the General Law (as amended by Legislative Decree Nº 1531), is modified.
d) The temporary regime established by Article three of SBS Resolution Nº 1048-2023 is modified, which establishes that: (i) excesses to the operating limits referred to in the General Law and the regulations issued by the SBS, which have occurred after the transactions that caused the excesses, due to the decrease in effective equity described in subsection (a) above, shall not be considered sanctionable on a temporary basis; and that ii) in the determination of the cause for submission to the supervision regime of the companies of the financial system contemplated in literal d) of numeral 2 of Article 95 of the General Law, the excesses that occur as a result of the causes indicated in numeral i) above will not be considered. The amendment includes in the treatment contemplated in point ii) above the assumption established in paragraph e) of numeral 2 of said Article 95, consisting of the “Violation of other individual or global limits with a frequency or magnitude that, in the Superintendent’s judgment, reveals inadequate conduct of business by the company, together with the omission in the approval and execution of corrective measures”.
The SBS amended Title VI of the Compendium of Superintendence Rules Regulating the Private Pension Fund Management System, approved by Resolution Nº 052-98-EF/SAFP (“Title VI”), Title X of the same compendium (“Title X”), Regulations for the Investment of Pension Funds Abroad, approved by Resolution SBS No. 8-2007 (“RIE”), the Regulation of Infractions and Sanctions of the Superintendency of Banking, Insurance and Private Pension Fund Administrators, approved by Resolution SBS Nº 2755-2018 (“Regulation of Infractions”), among other provisions. Through SBS Resolution Nº 2186-2023 (“Resolution 2186”), published in the Official Gazette El Peruano on June 23, 2023, the SBS approved the modification of several rules with the main purpose of varying the regime of the legal reserve that private pension fund managers (“AFPs”) must constitute to guarantee the minimum profitability of pension funds (“Cash holdings”), and cover potential damages to pension funds, vary the risk classification regime, and modify certain investment eligibility requirements related to investment funds.
The provisions approved in Resolution 2186 include the following:
a) Regarding Title VI:
The methodology for calculating the Cash holdings is modified, which will henceforth be determined based on a given percentage of the total number of existing quotas for each type of pension fund, and will no longer be affected by a change in the risk classification of the classified instruments.
The obligation of the PFAs to constitute a reserve for excess investment is established, in the event of chargeable excesses that are not eliminated within the framework of the current adequacy plan approved by the SBS.
The Cash holdings or lack of transactions, applicable to shares, securities representing rights over shares in deposit registered in stock exchanges and preferential subscription certificates that do not present transactions in a given period, is eliminated.
The obligation of the PFAs to establish other guarantees to support the minimum return or to cover potential damages to the pension funds is eliminated.
It is established that local investment funds must have at least one risk rating to be eligible for investment by the PFAs.
It is specified that for the eligibility of local investment funds of venture capital, private debt, private equity, real estate, forestry funds and infrastructure funds, the requirements established for local investment funds in general are also applicable.
b) Regarding Title X:
The regime of “observation situation” of the risk classification, defined as that in which such classification: i) has been observed by any of the risk classification companies; or, ii) does not reflect the current risk level due to the occurrence of events that would support such situation, is eliminated,
It will be the AFP and not the SBS that must determine the circumstances in which it will request a new risk classification report from the issuer if it concludes that the current risk classification is not in accordance with the corresponding risk level,
To the extent practicable, the risk classifications of the instruments in which the AFP invests must be public, and,
The AFPs may request the SBS to include new risk rating companies among the rating companies recognized by said entity.
c) Regarding the RIE:
It is specified that the risk classifications referred to in said regulation are those set forth in Title X.
d) Regarding the Regulation on Infractions:
Two new serious infractions are included, related to non-compliance with the obligation to: i) settle with own resources the loss generated by the sale of investment instruments or operations, in case of excess investments attributable to the AFP, and ii) constitute and maintain the Cash holdings for excess investments in the manner and form established in the regulations, and,
Two violations related to provisions that are repealed are eliminated (the situation of observation of risk classification, and the constitution of Encaje due to modification of risk classification).
In addition, Resolution 2186 modifies and repeals certain additional legal provisions, such as circulars, circular letters and manuals with the main purpose of reflecting, as appropriate, the modifications described above.
The SBS published the draft of the new Liquidity Risk Management Regulations. By means of a notice dated June 26, 2023, the SBS published the above mentioned draft for public comments until August 31, 2023.
The SBS published draft to amend the Financial System Market Conduct Management Regulation, approved by Resolution SBS Nº 3274-2017, the Commissions and Expenses Regulation, approved by Resolution SBS Nº 3748-2021, the Credit and Debit Cards Regulation, approved by Resolution SBS Nº 6523-2013 and the Regulation for Information Security Management and Cybersecurity, approved by Resolution SBS Nº 504-2021. By notice dated June 12, 2023, the SBS published the aforementioned draft for receipt of public comments until July 12, 2023.
