Adjunct Superintendent Resolution N.° 038-2025-SMV/10 — SMV — PE

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship.

Adjunct Superintendent Resolution SMV
No. 038-2025-SMV/10
Lima, June 23, 2025

Summary: Scotia Fondos Sociedad Administradora de Fondos Mutuos S.A. is sanctioned with a fine of 8 UIT equivalent to S/ 35,200.00 (Thirty-five thousand two hundred and 00/100 soles) for having committed two (02) infractions: one (01) of a serious nature typified in Annex I, numeral 2, subsection 2.26, and one (01) of a minor nature typified in Annex VII, numeral 3, subsection 3.4, of the Sanctions Regulation, for having failed to constitute the required guarantee backing the commitments undertaken with the participants of a fund; and for failing to comply with regulations regarding the participation limits of participants in a fund; respectively.

Administered by: Scotia Fondos Sociedad Administradora de Fondos Mutuos S.A.
Subject: Administrative sanctioning procedure
File No.: 2025016478

The Adjunct Superintendent of Prudential Supervision

SEEN:
The administrative file No. 2025016478, Report No. 742-2025-SMV/10, issued by the General Superintendency of Prudential Compliance, as well as the defenses presented by Scotia Fondos Sociedad Administradora de Fondos Mutuos S.A.; and

CONSIDERING:

Pursuant to Article 1° of Law No. 29782, Law on Strengthening the Supervision of the Securities Market, the name of the National Commission for the Supervision of Companies and Securities (CONASEV) is replaced by that of the Securities Market Superintendency (SMV), therefore any reference to CONASEV in legal norms shall be understood as referring to the SMV;

I. FACTS
2. Through Reports No. 173-2022-SMV/10.2 and 491-
2022-SMV/10.2, the General Superintendency of Entity Supervision (hereinafter, IGSE) communicated to the General Superintendency of Prudential Compliance indications of possible infractions to securities market regulations by Scotia Fondos

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Sociedad Administradora de Fondos Mutuos S.A. (hereinafter, SCOTIA SAFM);
3. With Letter No. 2126-2025-SMV/10.3, notified on April 15, 2025 (hereinafter, LETTER OF CHARGES), an administrative sanctioning procedure was initiated against SCOTIA SAFM for failing to comply with regulations regarding the constitution of the required guarantee and regarding participation limits in a mutual fund;
4. By written submission received on April 25, 2025,
SCOTIA SAFM requested that an additional period of seven (7) business days be granted to the originally granted period to present the defenses requested by the LETTER OF CHARGES; which was granted by Letter No. 2482-2025-SMV/10.3 dated April 29, 2025; therefore, on May 08, 2025, SCOTIA SAFM presented the respective defenses;
5. The charges formulated, as well as the defenses
presented by SCOTIA SAFM, have been subject to evaluation in Report No. 742- 2025-SMV/10, which has been submitted to the knowledge of this Adjunct Superintendency;
6. In observance of the Principle of Due Process
contemplated both in Article IV, subsection 1, numeral 1.2 of the Preliminary Title, as well as in Article 248°, numeral 2, of the Single Text of the General Administrative Procedure Law No. 27444, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO LPAG), through Letter No. 3168-2024- SMV/10, the administrative file to which this resolution refers was made available to SCOTIA SAFM for review;

II. MATTERS TO BE DETERMINED
7. In the present administrative procedure, at the discretion of this Adjunct Superintendency of Prudential Supervision, it corresponds to determine the following:
a. Whether SCOTIA SAFM incurred or did not incur an infraction of Article 262, established in the Single Text of the Securities Market Law, Legislative Decree No. 861 and its amendments, approved by Supreme Decree No. 020-2023-EF (hereinafter, TUO LMV), and Article 141 of the Regulation of Mutual Funds of Investment Securities and their Administrator Societies, approved by Conasev Resolution No. 068-2010-SMV/01 and its amendments, in force at the time the facts occurred (hereinafter, REGULATION), given that it failed to constitute the required guarantee in favor of the SMV, backing the commitments undertaken with the participants of the mutual fund named Scotia Fondo de Fondos Distributivo IG FMIV (hereinafter, DISTRIBUTIVE FUND) during the period between April 30, 2021 and January 12, 2022; b. Whether SCOTIA SAFM incurred or did not incur an infraction of Article 245 of the TUO LMV and Article 91 of the REGULATION, given that the administrator society did not carry out the correction of the excess participation of the PARTICIPANT within the established deadline, nor did it inform the PARTICIPANT that they had sixty (60) useful days to correct said excess participation;
c. Whether it corresponds or does not correspond to sanction SCOTIA SAFM for what is stated in the preceding letters;

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III. ANALYSIS
3.1 FIRST CHARGE: FAILURE TO CONSTITUTE GUARANTEES IN ACCORDANCE WITH APPLICABLE REGULATIONS
8. Article 262 of the TUO LMV establishes the following:
“Article 262.- Guarantee 1
(…)
Administrator societies must constitute a guarantee in favor of the SMV, in backing of the commitments undertaken with the participants under their charge, for an amount no lower than the percentage that by general norm establishes the SMV based on the net equity administered of each mutual fund. The guarantee referred to in the previous paragraph has an intangible character and cannot be subject to judicial measure or encumbrance. Said guarantee may adopt the following modalities:
a) Bank deposit at the order of the SMV; b) Bank guarantee letter in favor of the SMV; and, c) Surety bond issued by insurance companies in favor of the SMV.
The SMV may demand a guarantee for higher amounts due to the volume and nature of the mutual funds, or other substantiated circumstances.”
9. In the same line, Article 141 of the REGULATION,
establishes the following:
“Article 141°.- CONSTITUTION OF GUARANTEES.-
Administrator societies must constitute a guarantee in favor of CONASEV, in backing of the commitments undertaken with the participants under their charge, for an amount no lower than zero point seventy-five percent (0.75%) of the net equity administered of each mutual fund. This guarantee may not be lower than zero point seventy-five percent (0.75%) of the net equity required in subsection b) of Article 245 of the Law. The guarantee referred to in the previous paragraph may adopt the modalities indicated in Article 265 A of the Law. The renewal of guarantees or their replacement by the constitution of a new one, must be carried out no later than, the useful day prior to its expiration. In case the administrator society opts for the modality of bank guarantee letter or surety bond, said instrument must consider as a cause for execution the non-renewal of the guarantee or non-constitution of a new one in the deadline established in the previous paragraph. The General Management of CONASEV, expired the deadline, and having not renewed or constituted a new one, must execute it and substitute it by the modality of bank deposit at the order of CONASEV.”
10. Likewise, Article 142 of the REGULATION establishes

1 Article 265-A of the Securities Market Law, Legislative Decree No. 861.

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the following:
“Article 142°.- UPDATE OF GUARANTEES.-
The amount of the guarantee referred to in Article 141 of the Regulation must be updated monthly, based on the value of the net equity at the close of each month, constituting the additional guarantee that results necessary.
Said guarantee must be updated within ten (10) useful days following the close of the respective month.”
OF THE FACTS OCCURRED
11. The DISTRIBUTIVE FUND was registered in the Public Registry of the Securities Market (RMPV) on January 28, 2020, automatically,
as a mutual fund directed exclusively to institutional investors 2 ;
12. Through important events of February 13, 2020 and March 11,
2020, SCOTIA SAFM communicated that the DISTRIBUTIVE FUND initiated the placement of quotas on February 12, 2020 and initiated the operational stage on March 11, 2020, respectively;
13. With General Superintendency of Entity Supervision Resolution No. 056-2021-SMV/10.2 dated April 29, 2021 3
, (hereinafter,
RESOLUTION), it resolves to approve the registration of modifications to the simplified prospectus and annex of the participation regulation of the DISTRIBUTIVE FUND. The modifications referred, among others, to the modifications of the target audience to which it is directed and entered into force from April 30, 2021. In consequence, from that date, the DISTRIBUTIVE FUND ceased to be a mutual fund directed exclusively to institutional investors;
14. In that sense, considering that the DISTRIBUTIVE FUND ceased to be a fund directed exclusively to institutional
investors, through Letter No. 078-2022-SMV/10.2 4 notified on January 07, 2022 (hereinafter, LETTER OF REQUIREMENT), the IGSE required SCOTIA SAFM to constitute a guarantee in favor of the SMV, in backing of the commitments undertaken with the participants of the DISTRIBUTIVE FUND, for an amount no lower than zero point seventy-five percent (0.75%) of the net equity administered by the DISTRIBUTIVE FUND, given that on that date it was identified that SCOTIA SAFM had not delivered the required guarantees for the DISTRIBUTIVE FUND;
15. On January 12, 2022, SCOTIA SAFM delivered 5 to the
SMV the Bank Guarantee No. 10633835-000 dated January 11, 2022 issued by Scotiabank for an amount of S/ 3 812 516.00 (three million eight hundred twelve thousand five hundred sixteen and 00/100 soles), valid from January 13, 2022;
16. By written submission presented on January 19, 2022,
SCOTIA SAFM responds to the LETTER OF REQUIREMENT and states that it has constituted the required guarantee for the DISTRIBUTIVE FUND 6 ;

2 File No. 2020002406.
3 File No. 2021002695.
4 File No. 2022000581.
5 File No. 2022001242.
6 File No. 2022000581.

PERÚ Ministry of Economy and Finance

OF THE FORMULATED CHARGE
17. According to the exposed facts, from April 30, 2021, the DISTRIBUTIVE FUND ceased to be a fund directed exclusively
to institutional investors, therefore from that date it was no longer applicable to SCOTIA SAFM what is provided in Article 207 of the REGULATION 7 . That is, from April 30, 2021, it became applicable to SCOTIA SAFM the obligation to constitute a guarantee in favor of the SMV in backing of the commitments undertaken with the participants of the DISTRIBUTIVE FUND, according to what is provided in Article 262 of the TUO LMV and Article 141 of the REGULATION;
18. Nevertheless, upon review of the constituted guarantees valid as of January 2022, according to the communications sent by SCOTIA SAFM to the SMV, referring to the constituted guarantees, it was observed that SCOTIA
SAFM did not maintain guarantees constituted in favor of the SMV in backing of the commitments undertaken with the participants under its charge with regard to the DISTRIBUTIVE FUND, in accordance with what is established in Article 262 of the TUO LMV and Article 141 of the REGULATION, which had to be constituted additionally considering what is established in Article 142 of the REGULATION, which provides that administrator societies have the obligation to update monthly the amount of the guarantees;
19. Therefore, as a consequence of the review of the detail of the amounts of the guarantees constituted by the administrator society in favor of the SMV in backing of the commitments undertaken with the participants of the DISTRIBUTIVE FUND, as well as of the amounts of the required guarantees applicable to the DISTRIBUTIVE FUND from April 30, 2021, the following result was obtained:
Table No. 1
Detail of Required Guarantees and Constituted Guarantees Date Net Equity (Soles) 8 Guarantee Requirement (Soles) Update Limit Date Constituted Guarantee No. Amount (Soles) 30/04/2021 284 464 038.59 2 133 480.29 - - - 31/05/2021 281 278 145.40 2 109 586.09 14/06/2021 - - 30/06/2021 236 040 351.51 1 770 302.64 14/07/2021 - - 31/07/2021 324 832 373.02 2 436 242.80 13/08/2021 - - 31/08/2021 390 814 293.19 2 931 107.20 14/09/2021 - - 30/09/2021 464 279 904.22 3 482 099.28 18/10/2021 - - 31/10/2021 472 884 238.11 3 546 631.79 16/11/2021 - - 30/11/2021 488 751 324.37 3 665 634.93 15/12/2021 - - 31/12/2021 484 128 985.99 3 630 967.39 17/01/2022 10633835-000 3 812 516.00

“Article 207°.-GUARANTEES.-
The net equity administered of mutual funds directed exclusively to institutional investors should not be considered for determining the amount to be constituted as guarantee, to which Chapter V of Title IV of the Regulation refers” (Underlining added).
8 Net equity of the DISTRIBUTIVE FUND expressed in soles, according to the information sent by SCOTIA SAFM via the Account Balances file established in the Technical Specifications of the Information to be sent by Mutual Fund Administrator Societies of Investment in Securities.

PERÚ Ministry of Economy and Finance

In that context and as a result of the LETTER OF REQUIREMENT, SCOTIA SAFM complied with delivering the Bank Guarantee No. 10633835-000 issued on January 13, 2022 9 in favor of the SMV, for the amount of S/ 3 812 516.00
(three million eight hundred twelve thousand five hundred sixteen and 00/100 soles), that is, for an amount superior to the required one on December 31, 2021 amounting to S/ 3 630 967.39 (three million six hundred thirty thousand nine hundred sixty-seven and 39/100 soles);
Consequently, considering what was exposed above, SCOTIA SAFM would not have complied with constituting the required guarantee in favor of the SMV and in backing of the commitments undertaken with the participants of the DISTRIBUTIVE FUND during the period between April 30, 2021 and January 12, 2022; and in this way, would have failed to comply with what is provided in Article 262 of the TUO LMV and Article 141 of the REGULATION;
Therefore, it was attributed to SCOTIA SAFM that it would have incurred in one (1) serious infraction typified in Annex I, numeral 2, subsection 2.26 of the Sanctions Regulation, approved by SMV Resolution No. 35-2018-SMV/01, (hereinafter, SANCTIONS REGULATION), according to which it constitutes an infraction: “Not constituting the guarantees, not updating them, renewing them or replacing them, in the form, amount and conditions provided for in the regulations on the matter or those determined by the SMV.”;
OF THE DEFENSES
Regarding this charge, SCOTIA SAFM
manifests that it expressly recognizes its responsibility for the commission of the infraction contained in Annex I, numeral 2, subsection 2.26 of the SANCTIONS REGULATION, for having failed to comply with the constitution of the required guarantee in backing of the commitments undertaken with the participants of the DISTRIBUTIVE FUND, during the period between April 30, 2021 and January 12, 2022, according to what is established in Article 262 of the TUO LMV and Article 141 of the REGULATION;
Likewise, SCOTIA SAFM states that it has carried out organizational actions with the aim of avoiding subsequent failure to comply with the constitution of guarantee in the mutual funds it administers and/or will administer in the future;
On the other hand, SCOTIA SAFM manifests that each of the sanctioning criteria established in the SANCTIONS REGULATION must be analyzed, which, in the opinion of the administrator society, must be applied according to the principle of reasonableness and the criteria expressly contemplated in numeral 3) of Article 248 of the TUO LPAG;
In such sense, regarding the circumstances of the commission of the infraction, SCOTIA SAFM points out that, a few days after the notification of the LETTER OF REQUIREMENT, it complied with constituting the corresponding bank guarantee, dated January 12, 2022. Also, regarding the economic damage caused and its repercussion on the market, SCOTIA SAFM specifies that, in accordance with Article 141 of the REGULATION, the purpose of constituting guarantees in favor of the SMV is the backing of the commitments undertaken with the

9 According to what is specified in the Bank Guarantee.

PERÚ Ministry of Economy and Finance

participants under the charge of the administrator society. In that sense, according to what SCOTIA SAFM mentions, since the guarantee is not constituted in favor of the investors, and being necessary to be constituted in favor of the SMV, no accident occurred that warranted its execution, therefore there would have been no affectation neither to the market nor to the investors; EVALUATION OF THE DEFENSE
27. On this particular, it must be noted that SCOTIA
SAFM has expressly recognized its responsibility for the commission of the infraction subject of analysis, based on what is provided by Article 26, letter a) of the SANCTIONS REGULATION, which will be considered when determining the sanction to be imposed;
28. In such sense, in the present case it has been proven that SCOTIA SAFM, during the period between April 30, 2021 to January 12, 2022, did not comply with the obligation that administrator societies of mutual funds have regarding the constitution of the required guarantee in favor of the SMV, in backing of the commitments undertaken with the participants of the DISTRIBUTIVE FUND, according to what is provided in Article 262 of the TUO LMV and Article 141 of the REGULATION;
29. Likewise, regarding the carrying out of organizational actions, in order to avoid subsequent failures regarding the constitution of guarantee, it is worth noting that, without prejudice to the fact that these have not been accredited, such actions do not exempt the administrator society from the non-compliance in which it has incurred.
30. On the other hand, regarding the arguments developed concerning the sanctioning criteria alleged by the administrator society, it must be indicated that these aspects will be subject to evaluation at the moment of determining the sanction to be imposed;
31. For the reasons exposed, it is noted that SCOTIA SAFM incurred in one (1) infraction classified as serious, according to Annex I, numeral 2, subsection 2.26 of the SANCTIONS REGULATION, according to which it constitutes an infraction: “Not constituting the guarantees, not updating them, renewing them or replacing them, in the form, amount and conditions provided for in the regulations on the matter or those determined by the SMV.”
3.2. SECOND CHARGE: FAILURE TO COMPLY WITH REGULATIONS REGARDING PARTICIPATION LIMITS OF THE FUND
OF APPLICABLE REGULATIONS
32. Article 245 10 of the TUO LMV provides the following:
“Article 245.- Maximum Participation.-
No natural or legal person may be the direct or indirect holder of more than ten percent (10%) of the net equity of a mutual fund, unless it concerns:
(…)

Article 248 of the Securities Market Law, Legislative Decree No. 861.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría b) The increase in participation as a consequence of the decrease in the number of shares due to redemptions made by other participants. In this latter case, the participant shall not acquire new shares while their investment represents an excess in relation to the fund's net asset value; and, (…).”
33. Along these lines, Article 91 of the REGULATION establishes the following:
“Article 91.- Redemption of Excesses.-
(…).
For the purposes of subsection b) of Article 248 of the Law, an excess of participation due to the redemption of third parties is considered a cause not attributable to the participant. In such a case, within five (5) days of the occurrence of the excess due to a non-attributable cause, the management company must communicate, directly and in writing, the excess to the participant, indicating that if the indicated situation is not regularized within a period of sixty (60) days, counted from the occurrence of the excess, it will proceed to redeem all the excess that allows maintaining a maximum of ten percent (10%) participation in the mutual fund. Without prejudice to what is stated in the previous paragraph, the management company may request the SMV for an extension of time. This request must be submitted before the expiration of the indicated sixty (60) day period, attaching the communication sent to the participant. (…)”. OF THE FACTS OCCURRED
34. Through General Management Resolution No. 051-2007-EF/94.11 of March 29, 2007, the registration of the securities investment mutual fund named “Scotia Fondo Mixto Balanceado FMIV” (hereinafter, MIXED FUND) in the RPMV was ordered, and through General Supervision of Entities Intendancy Resolution No. 160-2024-SMV/10.2 of December 13, 2024, its exclusion from the RPMV was ordered;
35. On October 23, 2021, an excess of participation occurred in the MIXED FUND, by PARTICIPANT 11, having more than 10% participation in the MIXED FUND, that is, 10.498355%; this was due to redemptions by third parties 12; which had to be remedied until January 25, 2022;
36. With Letter No. 469-2022-SMV/10.2 of February 2, 2022 13 (hereinafter, LETTER 469), SCOTIA SAFM was requested to immediately remedy the excess participation of the PARTICIPANT, since the period established in Article 91 of the REGULATION for its regularization had expired. Additionally, the following information was requested:

11 Attached to this resolution is the complete data of the natural persons to whom the designations used in this resolution belong, and also, if applicable, email addresses.
12 On October 25, 2021, SCOTIA SAFM communicated as a significant event the excess participation of a participant of the MIXED FUND, for causes not attributable to the management company.
13 File No. 2022004264.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría (i) The reasons why it did not redeem shares within the period established in the REGULATION; (ii) The written communication sent to the PARTICIPANT informing them of the excess participation; and (iii) The actions to be implemented in internal control procedures, with the aim of timely detecting excesses of participation and monitoring the periods established by applicable regulations for the remediation of such excesses;
37. In response to LETTER 469, through a document presented on February 9, 2022, SCOTIA SAFM communicated that, in order to remedy the excess participation, they proceeded to redeem the pending excess participation and that said operation was settled on February 8, 2022. It also noted that the remediation of the excess participation was not carried out within the established period due to an operational error where they redeemed fewer shares than actually corresponded, which in turn caused an error in reporting via a significant event on January 19, 2022 regarding the occurrence of a new excess participation, which was rectified 14. With said document, they attached the following documentation:
(i) Communication to the PARTICIPANT informing them of the excess participation presented in the MIXED FUND. Said communication, according to SCOTIA SAFM, was made on October 28, 2021; (ii) Screenshots of the SCOTIA SAFM system as support for the settlement of redemption operations; (iii) The significant event of February 9, 2022 15, through which what was informed in the significant event of January 19, 2022 is rectified;
38. According to the review performed on the Participant Archive, sent by SCOTIA SAFM on February 7, 2022 16, it was observed that since February 5, 2022 the excess participation of the PARTICIPANT was corrected, given that their participation in the MIXED FUND from that date amounted to 9.791283% possessing a total of 28,259.72 participation shares out of a total of 288,621.23;
OF THE CHARGE FORMULATED
39. As a result of the review of the Participant Archives sent daily 17 by SCOTIA SAFM to the SMV, it was observed that on October 23, 2021 the PARTICIPANT's participation reached the percentage of 10.498355% with respect to the total number of shares of the MIXED FUND, without subscribing to new participation shares 18, thus giving rise to an excess of participation due to causes not attributable to the participant;
40. Being so, according to what is established in Article 91 of the REGULATION, the period to remedy the mentioned excess of

14 File No. 2022002140.
15 File No. 2022005298.
16 Communicated through file No. 2022004952.
17 This obligation is established in section 3.1 of the Technical Specifications of Information to be sent by Mutual Fund Management Companies for Securities Investment, approved through General Management Resolution No. 0058-2010 and its amendments.
18 As of October 23, 2021, the PARTICIPANT held 34,165.06 participation shares.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría participation expired on January 25, 2022. Nevertheless, this situation was remedied by SCOTIA SAFM on February 5, 2022 as a result of the request made through LETTER 469, with the redemption of 1,060.77 participation shares from the PARTICIPANT's account in the MIXED FUND;
41. In this way, the excess of participation occurring due to causes not attributable to the PARTICIPANT was remedied by SCOTIA SAFM outside the limit period established in the applicable regulation;
42. It should be specified that, although on January 18, 2022, SCOTIA SAFM effected the redemption of 4,844.57 shares of the PARTICIPANT's account in the MIXED FUND, this was not sufficient to remedy the excess participation;
43. On the other hand, it is necessary to point out that, from the review of the communication allegedly sent by SCOTIA SAFM to the PARTICIPANT, it is observed that in it they are not informed that they have sixty (60) business days to remedy the excess participation situation;
44. Therefore, SCOTIA SAFM would not have complied with remedying the excess participation of the PARTICIPANT according to what is established in Article 91 of the REGULATION;
45. Consequently, SCOTIA SAFM would have incurred the infraction classified as minor typified in Annex VII, numeral 3, clause 3.4 of the SANCTIONS REGULATION which establishes as an infraction of a minor nature: “Not complying with the regulation regarding participation limits in the fund.”;
OF THE DEFENSES
46. Regarding this imputed fact, SCOTIA SAFM states that it expressly recognizes its responsibility in the commission of the infraction contained in Annex VII, numeral 3, clause 3.4 of the SANCTIONS REGULATION, for not complying with the regulation on the participation limits of the MIXED FUND, regarding the excess participation by the PARTICIPANT, produced on October 23, 2021, as established by Article 91 of the REGULATION;
47. Thus, SCOTIA SAFM indicates that it has carried out organizational actions with the aim of improving its systems for controlling excesses of participation in the mutual funds it manages;
48. On the other hand, regarding the application of sanctioning criteria, SCOTIA SAFM states that each of the sanctioning criteria established in the SANCTIONS REGULATION must be analyzed and in this sense, regarding the circumstances of the commission of the infraction, SCOTIA SAFM recognizes that, in its condition as a society supervised by the SMV, it has knowledge of the norms that regulate the securities market, and of the specific regulation applicable to the remediation of excess participations; however, it indicates that in the present case;
49. In this sense, regarding the circumstances of the commission of the infraction, on the excess participation by the PARTICIPANT on October 23, 2021, SCOTIA SAFM recognizes that, in its condition as a society supervised by the SMV, it has knowledge of the norms that regulate the securities market, and of the specific regulation applicable to the remediation of excess participations; however, the management company indicates the following:

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría (i) SCOTIA SAFM complied with informing, on October 28, 2021, the excess participation -at a percentage equal to 0.4983%- of the MIXED FUND with respect to the maximum participation limit, as well as that, if the referred excess is not regularized, SCOTIA SAFM would proceed to perform the redemption; (ii) SCOTIA SAFM proceeded to perform the redemption of the excess participation, nevertheless, it points out that the total remediation was not carried out within the period allowed by the REGULATION, this was not done due to an operational error in the calculation of the applicable limit, which would have caused the redemption of fewer shares than those that effectively corresponded, informing the SMV of this situation through a new significant event 19, in which it was noted that the PARTICIPANT generated a new excess of participation due to non-attributable causes, at a percentage amounting to 0.1339% in the MIXED FUND;
50. Likewise, SCOTIA SAFM alleges that through response to LETTER 469, in which the error that occurred was warned, the management company communicated to the SMV the remediation of the excess participation, which was carried out on February 8, 2022;
EVALUATION OF THE DEFENSE
51. Regarding this, taking into account the recognition of its responsibility in the commission of the imputed infraction, in the present case it has been proven that SCOTIA SAFM did not comply with regularizing the excess participation occurred on October 23, 2021 of the PARTICIPANT (10.498355% participation shares) in the MIXED FUND, within the period established in Article 91 of the REGULATION, since SCOTIA SAFM corrected said excess participation on a later date, February 5, 2022, as a result of the request made through LETTER 469, with the redemption of 1,060.77 participation shares from the PARTICIPANT's account in the MIXED FUND. It should be noted that the period to regularize said excess participation expired on January 25, 2022;
52. Likewise, regarding the carrying out of organizational actions with the aim of improving its systems for controlling excesses of participation, it must be pointed out that, regardless of the fact that these have not been accredited, said actions do not exempt the management company from the non-compliance in which it has incurred.
53. On the other hand, regarding the arguments developed concerning the sanctioning criteria alleged by the management company, it must be indicated that these aspects will be subject to evaluation at the moment of determining the sanction to be imposed;
54. For the above, it is noted that SCOTIA SAFM has incurred one (1) infraction classified as minor, according to Annex VII, numeral 3, clause 3.4 of the SANCTIONS REGULATION, according to which it constitutes an infraction: “Not complying with the regulation regarding participation limits in the fund.”;
III. EVALUATION OF THE SANCTION
55. In accordance with what is established in the regulation, the determination of sanctions will be carried out in accordance with Article 344 of the TUO LMV, and Article 25 of the SANCTIONS REGULATION, in concordance with Article 248,

19 File No. 2022002140.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría numeral 3, of the TUO LPAG 20, and the mitigating and exonerating conditions of responsibility regulated in Articles 26 and 27 of the SANCTIONS REGULATION, in concordance with what is established in Article 257 of the TUO LPAG 21.;
56. Within this framework, the evaluation of the sanction must consider: a) offender's antecedents; b) recidivism; c) the circumstances of the commission of the infraction; d) the damage caused and the repercussion in the market; e) the illicit benefit resulting from the commission of the infraction; f) probability of detection of the infraction; g) gravity of the damage to the public interest and/or protected legal good; h) the existence or non-existence of intent in the offender's conduct;
57. In this sense, in order to harmonize the criteria of the TUO LMV with those indicated in the TUO LPAG and the SANCTIONS REGULATION, and for these criteria to be adequately considered in order that their valuation observes the principle of reasonableness and that the sanction to be imposed adapts to them, it proceeds to analyze the mentioned criteria;
58. Regarding the antecedents of the offender, in accordance with what is provided by Article 25 of the SANCTIONS REGULATION, the antecedents of the offender constitute the sanctions imposed by the SMV and that have become final within four (04) years prior to the date of the commission of the infraction. Said article specifies that the commission of the same infraction in the year prior to the infraction to be sanctioned is not considered as antecedent;
59. In this sense, from the review performed in said period, it has been verified that SCOTIA SAFM registers the following antecedents:

“Article 248°.- Principles of administrative sanctioning power (…)
3. Reasonableness.- Authorities must foresee that the commission of the sanctionable conduct does not result in more advantage for the offender than complying with the infringed rules or assuming the sanction. However, the sanctions to be applied must be proportional to the non-compliance qualified as an infraction, observing the following criteria that are indicated for their graduation:
a) The illicit benefit resulting from the commission of the infraction; b) The probability of detection of the infraction; c) The gravity of the damage to the public interest and/or protected legal good; d) The economic damage caused; e) Recidivism, for the commission of the same infraction within a period of one (1) year from when the resolution sanctioning the first infraction became final. f) The circumstances of the commission of the infraction; and g) The existence or non-existence of intent in the offender's conduct”. “Article 257°.- Exonerating and mitigating conditions of responsibility for infractions 1.- The following constitute exonerating conditions of responsibility for infractions:
a) Force majeure or fortuitous event duly proven. b) Acting in compliance with a legal duty or the legitimate exercise of the right of defense. c) Mental incapacity duly proven by the competent authority, provided that this affects the aptitude to understand the infraction. d) Mandatory order of competent authority, issued in the exercise of its functions. e) Error induced by the Administration or by confusing or illegal administrative provision. f) Voluntary remediation by the possible sanctioned person of the act or omission imputed as constitutive of an administrative infraction, prior to the notification of the charge imputation referred to in subsection 3) of Article 253. 2.- The following constitute mitigating conditions of responsibility for infractions:
a) If an administrative sanctioning procedure has started and the offender recognizes their responsibility expressly and in writing.
In cases where the applicable sanction is a fine, it is reduced to an amount no less than half of its value. b) Others that are established by special norm”.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría NO RESOLUTION RESOLVED FINALITY Literal () i Adjunct Superintendent Resolution SMV No 080-2017-SMV/10 SCOTIA SAFM is sanctioned with a fine of three (03) UIT, equivalent to S/. 11,400.00 (Eleven thousand four hundred and 00/100 Soles) for having incurred one (01) very serious infraction typified in Annex VII, clause 1, numeral 1.15, of the Sanctions Regulation, approved by CONASEV Resolution No. 055-2001-EF/94.10 (hereinafter, Previous Sanctions Regulation), due to the Internal Control Officer not performing his functions as provided in the Mutual Funds Regulation, by not reporting to the body he depends on the results of his supervision tasks and by not performing his functions with exclusive dedication. 25/09/2017 a) ii Adjunct Superintendent Resolution SMV No 022-2018-SMV/10 SCOTIA SAFM is sanctioned with two (02) admonitions, for having incurred one (01) serious infraction typified in Annex I, numeral 2, clause 2.11 of the Previous Sanctions Regulation, for not timely sending the communication of the detail of the fund merger process, and for not timely sending the statements of account, respectively. 06/06/2018 a) and b) iii Adjunct Superintendent Resolution SMV No 028-2018-SMV/10 SCOTIA SAFM is sanctioned with nine (09) admonitions and a fine of 2.472 UIT, equivalent to S/. 9,764.40 (Nine thousand seven hundred sixty-four and 40/100 Soles), for having incurred ten (10) minor infractions typified in Annex I, numeral 3, clause 3.1 of the Previous Sanctions Regulation, for not having complied with presenting occasional information within the period established by the applicable regulation. 11/06/2018 a) and b) iv Adjunct Superintendent Resolution SMV No 008-2021-SMV/10 SCOTIA SAFM is sanctioned with three (3) admonitions and with a fine of 4.944 UIT, equivalent to S/. 20,038.65 (twenty thousand thirty-eight and 65/100 Soles) for having incurred eight (8) minor infractions typified in Annex I, numeral 3, clause 3.1 of the Sanctions Regulation, for not having complied with presenting occasional information within the period established by the applicable regulation referred to significant events. 06/04/2021 a) and b) v Adjunct Superintendent Resolution SMV No 026-2021-SMV/10 SCOTIA SAFM is sanctioned with a fine of 2 UIT equivalent to S/ 8,400.00 (Eight thousand four hundred and 00/100 Soles) for having incurred one (1) minor infraction typified in Annex VII, literal A), numeral 3, clause 3.4 of the Sanctions Regulation, for not complying with the regulation relative to participation limits in a mutual fund 22. 16/06/2021 a) and b) vi Adjunct Superintendent Resolution SMV No 043-2021-SMV/10 SCOTIA SAFM is sanctioned with a fine of 5.7165 UIT, equivalent to S/ 24,009.30 (Twenty-four thousand nine and 30/100 Soles), for having incurred nine (9) minor infractions
typified in Annex I, numeral 3, clause 3.1 of the Sanctions Regulation, for not having complied with presenting occasional information within the period established by the applicable regulation referred to significant events. 23/11/2021 a) and b) () Literals of consideration 7 of this resolution.
60. With reference to recidivism for the commission of the

22 It should be indicated that Adjunct Superintendent Resolution SMV No. 026-2021-SMV/10 additionally declared that SCOTIA SAFM incurred one (1) serious infraction, according to Annex VII, numeral 2, clause 2.4 of the Sanctions Regulation, for not having complied with observing investment limits for a fund it administers; however, the exonerating condition of responsibility for voluntary remediation contained in Article 257, clause 1, literal f) of the TUO LPAG was applied, and therefore, the archiving of the administrative sanctioning procedure in this regard.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría same infringement, the firm sanction imposed by the SMV within the period of one (1) year prior to the commission of the infringement is taken into account. Within this framework, it must be stated that considering what has been said regarding sanctioning antecedents, SCOTIA SAFM does not record sanctions for the commission of the infringement subject matter of the first charge referred to the failure to constitute guarantees (hereinafter FIRST CHARGE);
61. However, with respect to the infringement subject matter of the
second charge for non-compliance with regulations regarding participation limits (hereinafter, SECOND CHARGE), the circumstances are presented that constitute recidivism, since SCOTIA SAFM records as a firm sanction Resolution of the Assistant Superintendent of SMV No. 026-2021-SMV/1023 dated May 25 of 2021 which sanctioned it with a fine of 2 UIT equivalent to S/ 8,400.00 (Eight thousand four hundred and 00/100 Soles) for having incurred one (1) infringement of a light nature typified in Annex VII, letter A), numeral 3, clause 3.4 of the Sanctions Regulation, for failing to comply with the regulation relative to participation limits in a mutual fund. This sanction became final on June 16, 2021.
62. As for the circumstances of the commission of the
infractions, it must be pointed out that SCOTIA SAFM, in its capacity as a company supervised by the SMV, knows the norms that regulate the securities market, of the specific regulation for investment mutual funds in securities and the societies that administer them, which include the scope, form and deadlines to constitute the necessary guarantees established by the REGULATION, as well as the form and deadlines to remedy excesses of participation due to causes not attributable to the participants;
63. With regard to the FIRST CHARGE, SCOTIA SAFM states
that the imputed fact occurred under circumstances of the entry into force of the modification of the conditions of the DISTRIBUTIVE FUND. Likewise, SCOTIA SAFM alleges that, a few days after the notification of the REQUIREMENT OFFICE, it complied with constituting the corresponding surety bond. Nevertheless, it must be noted that although SCOTIA SAFM complied with constituting the guarantee required in favor of the SMV and in support of the commitments undertaken with the participants of the DISTRIBUTIVE FUND, this was done after a total of 257 days had elapsed without the corresponding guarantee being constituted, that is, for more than 08 months the aforementioned fund operated without having the coverage 24 provided by the guarantee for the participants thereof; with which they adopted investment decisions exposed to risks not considered as part of their evaluation of whether or not to invest in the DISTRIBUTIVE FUND;
64. Regarding the SECOND CHARGE, SCOTIA SAFM alleges
that it complied with informing -on October 28, 2021-, the excess participation of the MIXED FUND, as well as also, that it would proceed to redeem in case the

23 Notified on May 25, 2021.
24 REGULATION: "Article 146°.- EXECUTION OF GUARANTEES.- The guarantee may be executed by the Assistant Superintendent of Prudential Supervision of the SMV when, during the management of any of the mutual funds, the administering society incurs in any of the following causes: (*) a) Fail to fulfill the obligations undertaken with the participants, as provided in the participation regulation, the Regulation and other current norms; b) Incur in fraud or negligence in the development of its activities that causes damage to the mutual fund; and, c) The administering society or mutual fund enters liquidation process, when the administering society cannot meet its obligations. (…).”

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría had regularized the aforementioned excess;
65. On this point, it is necessary to point out that although on October 28
of 2021, SCOTIA SAFM communicates to the PARTICIPANT about the excess of participation, it was also observed that it did not inform the PARTICIPANT about the deadline of sixty (60) business days available to remedy the excess of participation as provided in article 91 of the REGULATION;
66. Likewise, the administering society maintains that
it carried out the redemption of the excess participation on January 18, 2022, notwithstanding, according to what it states, the total remediation was not carried out within the deadline allowed by the REGULATION due to an operational error in the calculation of the applicable limit, which would have caused the redemption of fewer shares than actually corresponded, informing said situation to the SMV;
67. In this regard, it should be indicated that SCOTIA SAFM has the
obligation to carry out its activities with diligence and in this way adopt the measures or actions necessary to allow it to comply with the requirements demanded by the regulation, in order to avoid committing infractions, such as the occurrence of the excess of participation, from October 23, 2021 to February 05, 2022, a period of approximately 3 months, in contravention of what is provided in article 245 of the TUO LMV;
68. It should be indicated that from October 23, 2021
to January 18, 2022 no increase was observed in the number of shares subscribed by the PARTICIPANT. With the redemption of January 18, 2022, the number of shares subscribed by the same went from 34165.06 to 29320.49 (10.133976%), and subsequently with the redemption of February 05, 2022 to 28259.72 shares (9.791283%);
69. With regard to what has been stated, it must be mentioned that
SCOTIA SAFM communicated as a significant event on January 19, 2022 25 the occurrence of an excess of participation in the Mixed Fund not attributable by 10.1339%, information that was rectified on February 09, 2022 26 through another significant event stating that the excess reported on January 19, 2022 was the same significant event communicated on October 25, 2021 27;
70. In this regard, the administrator mentions that this situation was due to operational errors; however, it must be noted that this situation is not acceptable for an entity that is authorized to function and operate in a specialized market such as the securities market, particularly considering that the communication of January 19, 2022 could have induced that since it was a new excess of participation limit, the deadline for its remediation started counting only from that date and not from October 23, 2021. Additionally, it must be considered that the communication of the significant event of February 09, 2022 occurred subsequent to the notification of February 02, 2022 of Office No. 469-2022-SMV/10.2, through which SCOTIA SAFM was requested to immediately remedy the excess of participation of the PARTICIPANT, since the deadline established in article 91 of the REGULATION for its regularization had expired;

25 File No. 2022002140.
26 File No. 2022005298.
27 File No. 2021040077.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría
71. As for the damage caused, it can be indicated that no
it has been possible to evidence that the infractions in which SCOTIA SAFM has incurred in the present sanctioning procedure have caused concrete economic damage to the participants of the market or have had repercussion in the market; that is, it has not been determined that there has been concrete affectation or caused economic damage to one or more investors, so it has also not been evidenced that there has been repercussion in the market;
72. As for the illicit benefit resulting from the
commission of the infringement, it must be noted that by not having constituted the guarantee required by the regulation during a period of approximately 8 months, SCOTIA SAFM saved costs linked to the constitution of the surety bond that any other administrator should have assumed in conditions proper to the market, so in this sense, for purposes of determining the sanction to be imposed, it must consider what is established by article 249, numeral 3 of the TUO LPAG, that is, the authorities must foresee that the commission of the sanctionable conduct does not result more advantageous for the offender than complying with the infringed norms or assuming the sanction;
73. Regarding the probability of detection of the
infractions, it must be indicated that the infractions in which SCOTIA SAFM has incurred were evidenced as a result of the supervision and control activities carried out by the SMV, regarding compliance by the administering societies of their obligations according to the applicable regulation, related to the review of the amounts of surety bonds presented to the SMV by the entity, as well as the review of the information on the mutual funds administered sent by SCOTIA SAFM to the SMV. Therefore, it is considered that the probability of detection of the infractions was high;
74. As for the severity of the damage to public interest
and/or protected legal good, it must be indicated that it has not been able to be accredited that the action of SCOTIA SAFM in the commission of the infractions analyzed in the present sanctioning procedure have caused damage to public interest or have had repercussion in the market;
75. However, with regard to the FIRST CHARGE, it must be
pointed out that SCOTIA SAFM did not constitute the guarantee required in support of the commitments undertaken with the participants of the MIXED FUND, from April 30 of 2021 to January 12, 2022; therefore, it affected the legal good referred to the protection of said participants, as well as also, to the integrity of the mutual fund industry; it to the extent that the fact that an administering society does not comply with minimum prudential requirements, generates an affectation to the confidence that the participants, potential participants and the market in general can deposit in said industry, affecting at the same time, its development and its impact as an alternative as a source of investment, it must also be considered that the participants of a fund, in their capacity as investors, contribute to it with the confidence that the administering society will fulfill the commitments undertaken with them and in strict compliance with the regulation;
76. In this sense, it must also be indicated that the
regulation of the securities market aims to protect investors, reduce systemic risk and guarantee that markets are fair, efficient and transparent, so in that framework, the prudential requirements demanded from administering companies of funds, such as minimum guarantees, have the objective of incentivizing them to act with the diligence appropriate to fulfill the obligations undertaken with the participants and mitigate the occurrence of situations of fraud or negligence in the development of their activities that cause damage to the mutual fund; especially considering that a relationship, such as that of administrator – participant, may be involved in situations of conflict of interest, information asymmetries and position in the market; from which derives the importance that the observance by administrators of minimum guarantee requirements has;
77. In this context, the management of a public fund by
the administering society on behalf and risk of the participant is backed up by the guarantee demanded in cases where the administering society incurs in the causes established in the LMV and in the REGULATION; therefore, by not constituting it, the aforementioned legal goods are affected;
78. Likewise, with regard to the SECOND CHARGE, it is observed that SCOTIA SAFM did not carry out the remediation of the excess of participation of the PARTICIPANT in the maximum deadline established, nor did it inform the PARTICIPANT that it had sixty (60) business days to remedy the situation of excess of participation;
79. In that sense, the protection of the investor must be taken into account, since if administering societies allowed part of the fund's assets to concentrate in a single participant, or exceed the limits established in the TUO LMV, this situation could lead to said participant or participants, upon requesting the redemption of their participations, unnecessarily expose the other participants by having to liquidate positions to obtain the necessary liquidity in order to attend said redemptions, with the possibility of affecting the structure of the fund's portfolio. Similarly, the redemption of shares of participants that exceed the limits established in the regulation, constitute a way to avoid concentrations that put the stability of the funds at risk, regardless of whether the excesses are due to attributable or non-attributable causes, in such a way that the other participants are not affected in said scenarios;
80. Consequently, SCOTIA SAFM has violated
legal goods relating to the tutelage of the mutual fund industry and duties of the administering society to behave with diligence and in defense of the integrity of the market, such as managing its activity prudently, caring for the interests of the participants as if they were their own;
81. Indeed, the objective of the excess participation limit that administering societies must observe in the management of mutual funds is to achieve efficient portfolio management considering an adequate combination of profitability and assumed risk, seeking to thus avoid concentrations, among others, of participants which could harm them, the mutual fund industry and the financial system of which said industry forms part. Consequently, the non-observance by an administering society of funds of the excess participation limits by the regulation does not contribute to the achievement of the referred objective;
82. In that sense, it is the obligation of administering societies of funds that when excesses in participation occur as in the present case, take the corresponding measures in order to comply with the limits established by the TUO LMV;

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría
83. Regarding the existence or non-existence of intent in the conduct of the offender, it has not been verified that SCOTIA SAFM acted with intent in the commission of the infractions subject matter of analysis in the present administrative sanctioning procedure;
84. In addition to the above, it corresponds to analyze the exempting and mitigating conditions of responsibility established in article 257° of the TUO LPAG 28 and in articles 27 29 and 26 30 of the SANCTIONS REGULATION, respectively;
85. In this regard, in accordance with what is determined in
article 257, numeral 1 of the TUO LPAG and in article 27 of the SANCTIONS REGULATION, it is not observed that in the present case any of the circumstances that constitute exempting conditions of responsibility have been configured;
86. With regard to the recognition of responsibility of the offender (article 257, numeral 2, clause a) of the TUO LPAG) and its contribution to the clarification of the infringement, established in article 26, clauses a) and b), respectively, of the SANCTIONS REGULATION, it must be indicated that SCOTIA SAFM, according to what is stated in the defenses, has recognized its responsibility in the infractions subject matter of the present sanctioning procedure, expressly and in writing, within the deadline granted for the presentation of defenses, and precisely, concisely, clearly, and unconditionally, without ambiguous or contradictory expressions, and has

"Article 257.- Exempting and mitigating conditions of responsibility for infractions 1.- The following constitute exempting conditions of responsibility for infractions:
a) Force majeure or fortuitous event duly proven. b) Acting in compliance with a legal duty or the legitimate exercise of the right of defense. c) Mental incapacity duly proven by the competent authority, provided that this affects the aptitude to understand the infringement. d) Mandatory order of competent authority, issued in the exercise of its functions. e) Error induced by the Administration or by confusing or illegal administrative provision. f) Voluntary remediation by the possible sanctioned person of the act or omission imputed as constitutive of administrative infringement, prior to the notification of the imputation of charges referred to in clause 3) of article 235. 2.- The following constitute mitigating conditions of responsibility for infractions:
a) If an administrative sanctioning procedure has begun and the offender recognizes his responsibility expressly and in writing. In cases where the applicable sanction is a fine, it is reduced to an amount no less than half of its value. b) Others that are established by special norm." "Article 26.- MITIGATING CONDITIONS OF RESPONSIBILITY FOR INFRACTIONS Constitute mitigating conditions of responsibility for infractions the following:
a) Recognition of responsibility of the offender expressly and in writing, once the administrative sanctioning procedure has begun.
When the applicable sanction is a fine, it is reduced, taking into account the following:

If the recognition of the infringement is presented within the deadline granted for the presentation of defenses, the reduction amount will be fifty percent (50%).
If the recognition is presented subsequently to the expiration of the deadline granted for the presentation of defenses and before the expiration of the deadline granted to formulate allegations to the instruction report, the reduction amount will be thirty percent (30%).
If the recognition is presented subsequently to the expiration of the deadline granted to formulate allegations to the instruction report and until before the issuance of the sanction resolution, the reduction amount will be ten percent (10%).
The recognition of responsibility regarding an infringement must be made precisely, concisely, clearly, expressly and unconditionally, and must not contain ambiguous or contradictory expressions; otherwise, it will not be understood as a recognition. If defenses are presented, despite having made a recognition of responsibility, it will be understood as a non-recognition, proceeding with the authority to evaluate the defenses. b) Contribution of the offender to the clarification of the infringement. c) Remediation carried out subsequent to its requirement or to the start of the administrative sanctioning procedure. "Article 27.- EXEMPTING CONDITIONS OF RESPONSIBILITY FOR INFRACTIONS Constitute exempting conditions of responsibility for infractions the following:
a) Fortuitous event, force majeure or another exceptional situation that, in the opinion of the SMV, would be comparable to fortuitous event or force majeure duly proven. b) Acting in compliance with a legal duty or the legitimate exercise of a right of defense. c) Mental incapacity duly proven by the competent authority, provided that this affects the aptitude to understand the infringement. d) Mandatory order of competent authority, issued in the exercise of its functions. e) Error induced by the Administration or by confusing or illegal administrative provision. f) Voluntary remediation by the possible sanctioned person of the act or omission imputed as constitutive of administrative infringement, prior to the notification of the imputation of charges referred to in clause 3) of article 253 of the LPAG and always that no communication demanding compliance with the obligation had been issued.

PERÚ Ministry of Economy and Finance

On the other hand, it is observed that the attenuating condition referred to the remediation carried out after its request, established in article 26, subsection c) of the SANCTIONS REGULATION, has also been configured, given that, in relation to the FIRST CHARGE, through REQUIREMENT OFFICE notified on January 07, 2022, SCOTIA SAFM was requested to constitute a guarantee in favor of the SMV, in support of the commitments undertaken with the participants of the DISTRIBUTIVE FUND, which the administering society carried out on January 13, 2022;
Likewise, in relation to the SECOND CHARGE through OFFICE 469, notified on February 02, 2022, SCOTIA SAFM was exhorted to immediately remedy the excess participation of the PARTICIPANT, since the deadline established in article 91 of the REGULATION for its regularization had expired, which the administering society fulfilled on February 05, 2022;
Based on the above, it is necessary to determine the sanction to be imposed on SCOTIA SAFM for having committed one (1) infraction classified as serious according to Annex I, numeral 2, subsection 2.26 of the SANCTIONS REGULATION and one (1) infraction classified as minor, according to Annex VII, literal A), numeral 3, subsection 3.4 of the SANCTIONS REGULATION;
In this regard, it must be noted that since the determined infractions are of different nature, it corresponds to impose a sanction for the most serious infraction, as stated in the second paragraph of article 29 31 of the SANCTIONS REGULATION;
According to what has been stated, since SCOTIA SAFM has committed the infraction classified as serious, according to Annex I, numeral 2, subsection 2.26 of the SANCTIONS REGULATION, it would correspond to impose a sanction in accordance with what is established in article 34 of the SANCTIONS REGULATION, which establishes that serious infractions are punishable by a fine not less than twenty-five (25) and up to fifty (50) Tax Units (UIT), or with the suspension of the operating authorization for up to twenty (20) days;
However, considering that SCOTIA SAFM has recognized the commission of the (2) infractions detailed above, and has not obstructed the clarification of the same; it corresponds to apply what is provided by article 26°, literals a), numeral 1), b) and c) of the SANCTIONS REGULATION, so the fine to be imposed must fluctuate between 12.5 UIT and 25 UIT; that is, 50% of the range established for serious infractions;
For its part, according to the sanctioning criteria analyzed in application of the Principle of Reasonableness contemplated in article 248°, numeral 3 of the TUO LPAG, which states that sanctions must be proportional to the non-compliance classified as an infraction, it must be considered that it has not been evidenced that the infractions committed by SCOTIA SAFM have caused damage to the public interest, economic detriment to market participants, nor have they had repercussion

“Article 29.- CONCURSION OF INFRACTIONS
(…)
Likewise, when several behaviors qualify as more than one infraction, the sanction corresponding to the most serious infraction is imposed.”

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Document electronically signed digitally within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship in the market, likewise, it must be taken into account that there has also been no evidence that there was intent in the actions of the administering society, or that it obtained any illicit benefit regarding this; in addition to having contributed to the clarification of said infractions;

Therefore, this Adjunct Superintendency considers that it is possible to impose on SCOTIA SAFM a sanction corresponding to a classification lower than that provided for serious infractions, according to what is stated in the third paragraph of article 25°32 of the SANCTIONS REGULATION; so it is applicable a sanction corresponding to minor infractions, according to what is established in article 35° of the SANCTIONS REGULATION;
Being in accordance with what is provided in article 32, numeral 16
of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree Nº 216-2011-EF.
RESOLVES:
Article 1º.- Declare that Scotia Sociedad Administradora de Fondos Mutuos S.A. has incurred one (1) infraction of a serious nature typified in Annex I, numeral 2, subsection 2.26, of the Sanctions Regulation, approved by SMV Resolution N° 035-2018-SMV/01, for failing to comply with the constitution of the guarantee required in favor of the SMV based on the net asset value of the Scotia Fondo de Fondos Distributivo IG FMIV mutual fund during the period comprised between April 30, 2021 and January 12, 2022, in accordance with what is provided in article 262 of the Securities Market Law, Legislative Decree N° 861 and its amendments, and article 141 of the Regulation of Mutual Funds of Investment in Securities and their Administrating Societies, approved by CONASEV Resolution N° 068-2010-EF/94.01 and its amendments.

Article 2º.- Declare that Scotia Sociedad Administradora de Fondos Mutuos S.A. has incurred one (1) infraction of a minor nature typified in Annex VII, numeral 3, subsection 3.4, of the Sanctions Regulation, approved by SMV Resolution N° 035-2018-SMV/01, for failing to remedy the excess participation of the PARTICIPANT within the established deadline, as well as for not informing said participant that they had sixty (60) business days to remedy the situation of excess participation, in accordance with what is provided in article 245 of the Securities Market Law, Legislative Decree N° 861 and its amendments, and article 91 of the Regulation of Mutual Funds of Investment in Securities and their Administrating Societies, approved by CONASEV Resolution N° 068-2010-EF/94.01 and its amendments.

Article 3º.- Sanction Scotia Sociedad Administradora de Fondos Mutuos S.A., with a fine of 8 UIT equivalent to S/ 35,200.00 (Thirty-five thousand two hundred and 00/100 soles) for the commission of the infractions referred to in articles 1° and 2° of this resolution.

“Article 25°.- Sanctioning Criteria
(…)
When, from the evaluation of the aforementioned criteria, it is evident that there is no proportionality between the sanction to be imposed and the imputed facts, by exception and through a reasoned resolution, a sanction corresponding to a classification lower than that provided may be imposed.”

PERU Ministry of Economy and Finance

Article 4º.- This resolution does not exhaust the administrative route, unless it is consented, being able to be challenged before the Adjunct Superintendency of Prudential Supervision by filing a reconsideration or appeal resource presented before the same, within the term of fifteen (15) business days counted from the day following its notification.

Article 5º.- In the event that this resolution is not subject to challenge through a reconsideration or appeal resource within the term of fifteen (15) business days of being notified and becomes final, it must be published on the Institutional Website of the SMV in the Unique Digital Platform of the Peruvian State, in observance of what is provided by numeral 1, article 7° of the Policy on diffusion of normative projects, general character legal norms, early agenda and other administrative acts of the SMV, approved by SMV Resolution Nº 014-2014-SMV/01 and its amendment, and by what is provided in article 14° of the Sanctions Regulation, approved by SMV Resolution N° 035-2018-SMV/01.

Article 6º.- Transcribe this resolution to Scotia Sociedad Administradora de Fondos Mutuos S.A.
Register, communicate and publish.
Omar Gutiérrez Ochoa
Adjunct Superintendent
Adjunct Superintendency of Prudential Supervision

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