Regulatory Alerts2016-02-09 | DOF 5424746Added
Resolution modifying the general provisions applicable to financial entities and other persons providing investment services
The CNBV amends the general provisions for financial entities and investment advisors, introducing specific rules for generalized investment recommendations, mandatory record-keeping of verbal advice, and detailed conflict of interest policies. It establishes a distinct regulatory regime for investment management services provided to issuers of indexed fiduciary trust certificates that do not seek returns exceeding their reference index. The resolution sets staggered effective dates for compliance, ranging from March 31, 2016, to January 1, 2017, depending on the specific articles and annexes modified.
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DOF: 09/02/2016
RESOLUTION modifying the general provisions applicable to financial entities and other persons providing investment services
A seal with the National Coat of Arms appears at the margin, which reads: United Mexican States.- Ministry of Finance and Public Credit.- National Banking and Securities Commission.
The National Banking and Securities Commission, based on the provisions of articles 191; 200, fraction VIII, second paragraph; 226, fraction IX and last paragraph, and 413 of the Securities Market Law; 46, fraction IX; 53, first paragraph; 81, first paragraph, and 96 Bis, first paragraph of the Credit Institutions Law; 39 Bis 2; 39 Bis 3; 39 Bis 4; 40 Bis 3 of the Investment Funds Law; as well as 4, fractions XXXVI and XXXVIII, and 16, fraction I of the Law of the National Banking and Securities Commission, and
CONSIDERING
That it is convenient to adapt the regime applicable to investment advisors when they provide advised investment services, taking into account their particular characteristics and thereby making the provision of their services more efficient, in matters such as the scope of generalized recommendations they may make to their clients under the umbrella of advised investment services; adjusting the content of certain obligations related to the registration, conservation, and disclosure to their clients of various information, use of logs when they make verbal recommendations, as well as expressly establishing the circumstances that could update a conflict of interest for these persons, and
That it is likewise indispensable to establish the regime to which financial entities and investment advisors providing the investment management service to issuers of indexed fiduciary trust certificates that do not explicitly seek returns greater than those of the index, financial asset, or reference parameter, or well, of fiduciary trust certificates whose primary purpose is investment in Securities and whose assets are invested predominantly in Securities, on average over the last six months, must be subject to, therefore, for the benefit of the securities market, the correct provision of advised investment services, and the adequate dissemination of information to the investing clientele, has resolved to issue the following:
RESOLUTION MODIFYING THE GENERAL PROVISIONS APPLICABLE TO FINANCIAL ENTITIES AND OTHER PERSONS PROVIDING INVESTMENT SERVICES
FIRST.- Articles 24, first paragraph; 26, first paragraph; 29; 36; 44, first paragraph; 45, last paragraph, 52 are REFORMED; Articles 2, with a fifth paragraph; 5 Bis; 13 Bis; 24, with a second and third paragraphs, shifting the current second paragraph in its order and as appropriate; 25, with a third paragraph, shifting the current third paragraph in its order and as appropriate; 26, with a second paragraph, shifting the remaining paragraphs in their order and as appropriate; 28, with a penultimate paragraph, shifting the last paragraph in its order and as appropriate; 46, with a last paragraph, and Annex 5 Bis are ADDED; and Annexes 3, 4, 5, 6, 11, 12, 13, 14, and 16 of the "General Provisions Applicable to Financial Entities and Other Persons Providing Investment Services," published in the Official Gazette of the Federation on January 9, 2015, and modified through Resolutions published in the same Gazette on July 29 and October 26, 2015, are SUBSTITUTED, to read as follows:
TITLES FIRST to SIXTH
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ANNEXES 1 and 2
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ANNEX 3
Elements to determine the client profile in Advised Investment Services
ANNEX 4
Elements to determine the profile of the Financial Product in Advised Investment Services
ANNEX 5
Minimum content of the general framework of action to provide Investment Management
ANNEX 5 Bis
Minimum content of investment and operating policies to provide Investment Management to issuers of indexed fiduciary trust certificates that do not explicitly seek returns greater than those of the index, financial asset, or reference parameter, or of fiduciary trust certificates whose primary purpose is investment in securities and whose assets are invested predominantly in securities, on average over the last six months
ANNEX 6
Securities or instruments subject to commercialization or promotion
ANNEXES 7 to 10
...
ANNEX 11
Registration of recommendations made, information provided, and client instructions
ANNEX 12
Standards for the disclosure of information via the worldwide electronic network known as the internet
ANNEX 13
On conflicts of interest
ANNEX 14
Additional information that account statements and operation reports will contain
ANNEX 15
...
ANNEX 16
Regulatory reports for Investment Services (Securities Portfolio)
ANNEXES 17 to 19
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" Article 2.-
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...
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I. to V.
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Regarding Financial Entities and Investment Advisors whose clients are issuers of indexed fiduciary trust certificates that do not explicitly seek returns greater than those of the index, financial asset, or reference parameter, or of fiduciary trust certificates whose primary purpose is investment in securities and whose assets are invested predominantly in securities, on average over the last six months, during the validity of the issuance, they will only be obligated to comply with what is stipulated in articles 13 Bis, 20, 21, 22, 25, 26, 30, 31, 46, 47, 48, 49, 50, 51, and 52, as well as in Annex 5 Bis of these provisions. "
" Article 5 Bis.- Investment Advisors, as part of the Advised Investment Services they provide, may make generalized recommendations regarding the securities indicated in Annex 6 of these provisions, in which case they must provide their clients with information regarding the profile of the Security in question, enumerating potential benefits, risks, costs, and any other warning that the client should know, in accordance with what is mentioned in Annex 7 of these provisions. In all cases, they must make it known to their clients that this is not a personalized recommendation.
Generalized recommendations on Securities other than those indicated in the aforementioned Annex 6 may only be made to Sophisticated Clients. In these circumstances, Investment Advisors are prohibited from doing the following:
I.
Providing elements of opinion or value judgments regarding the Securities, in relation to the client in question;
II.
Using expressions or terms that invite the client in question to make investment decisions regarding Securities, or
III.
Employing words or expressions in the information they provide, regarding Financial Products, such as the best option in the interest of the client in question, or that which could satisfy their particular investment needs.
The provision of services referred to in this article in no case guarantees the result, success, or returns of the investments.
" Article 13 Bis.- Financial Entities and Investment Advisors providing the Investment Management service to issuers of indexed fiduciary trust certificates that do not explicitly seek returns greater than those of the index, financial asset, or reference parameter, or well, of fiduciary trust certificates whose primary purpose is investment in Securities and whose assets are invested predominantly in Securities, on average over the last six months, during the validity of the issuance, will be obligated to:
I.
Establish investment and operating policies under which the trust assets will be invested, in terms of what is provided in Annex 5 Bis of these provisions. These policies must determine if the investments are reasonable for the trust, as well as take into account, the management of potential conflicts of interest or, in their case, the absence thereof. The investment and operating policies must be authorized by the board of directors, equivalent body, or person in charge of administration.
II.
Analyze and evaluate the result of the trust management through investment in the assets or the execution of operations that allow them to replicate the index, financial asset, or reference parameter.
III.
Issue the measures required to comply with the placement prospectus.
IV.
Disclose on their page on the worldwide electronic network known as the internet the information referred to in fraction VIII of Annex 5 Bis of these provisions.
" Article 24.- Prior to the provision of Investment Services, Financial Entities and Investment Advisors must provide to their potential clients, in standardized format and clear language, an Investment Services guide that describes the services they can offer them, as well as the characteristics and differences between each one, or indicate the electronic page on the worldwide network known as the Internet where they can consult said guide. In both cases, they must record having provided the information to the clients. The guide must include the information specified in Annex 10 of these provisions.
Investment Advisors must disclose in the guide referred to in the previous paragraph, as well as in their advertising, propaganda, and information directed to the general public and their potential clients, the registration folio number assigned by the Commission to the Register of Investment Advisors and the warning regarding that the Commission exclusively supervises the provision of securities portfolio administration services when investment decisions are made on behalf and for the account of third parties, as well as services consisting of providing investment advice on Securities, analysis, and issuance of investment recommendations in an individualized manner, therefore lacking the authority to supervise or regulate any other service provided by Investment Advisors.
They must also inform that registration in the Register of Investment Advisors maintained by the Commission in terms of the Securities Market Law does not imply that Investment Advisors adhere to the applicable provisions in the services provided, nor the accuracy or truthfulness of the information provided.
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" Article 25.- ...
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When Financial Entities or their agents to celebrate operations with the public or their employees provide information for the contracting of services with a financial entity abroad of the same type, they must keep a record of such clients, as well as have documented procedures for this. Such procedures must be included in the policies and guidelines for information dissemination referred to in fraction V of article 19 of these provisions.
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" Article 26.- Financial Entities providing the Investment Advisory service or those providing the Commercialization or promotion service, must provide their clients with the recommendations, as well as the information referred to in the fourth paragraph of article 5 of these provisions, in written or verbal form and record them in electronic or digital media.
Additionally, for all Investment Services, they must keep in electronic, digital, or magnetic register, the entirety of the originals of the respective documents, voice recordings, or any other medium containing the recommendations made, information provided, and instructions from their clients. The aforementioned files must be kept by Financial Entities for a period of at least five years as an integral part of their accounting.
Investment Advisors must keep, for a period of at least five years, in electronic or physical media, the recommendations made, as well as the information provided regarding the Investment Services and Financial Products they offer. Additionally, they may use logs regarding recommendations made and information provided through verbal or telephone communications.
...
...
" Article 28.-
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Investment Advisors who receive instructions and transmit the corresponding orders to securities market intermediaries or financial institutions abroad of the same type for the celebration of operations with securities, under the mandate referred to in article 226, fraction I of the Securities Market Law, will be obligated to identify such instructions and orders, as well as maintain an electronic or written record containing the information detailed in Annex 11 of these provisions. Additionally, they must prove that they warned the client that the operations requested by the clients themselves would not come from a recommendation in terms of what is provided by article 5 or 5 Bis of these provisions, that they made known to them the risks derived from this type of operations, and that therefore, it would be the responsibility of the client themselves to verify that the Securities or Financial Derivative Instruments are consistent with their investment objectives, as well as to evaluate their inherent risks.
...
Article 29.- Financial Entities will be obligated to record or document, as well as to conserve, any verbal or written communication they maintain with their clients, at the time of the provision of Investment Services and the execution of transactions, if applicable, as well as to keep it available to the Commission. "
" Article 36.- Financial Entities, through their board of directors or equivalent body or person in charge of administration, in the latter case regarding Investment Advisors, must approve policies and guidelines on the provision of Investment Services to generally avoid the existence of conflicts of interest.
Investment Advisors must include in said policies and guidelines at least the elements indicated in Section A, fraction II of Annex 13 of these provisions. Additionally, in the case of Investment Advisors who are not independent, they must consider the circumstances referred to in Section A, fraction I, of said Annex 13.
The policies and guidelines referred to in the two previous paragraphs must contain the minimum elements indicated in Section B of the aforementioned Annex 13. In the case of investment fund operating companies, fund share distributors, and Investment Advisors, these policies must be contained in the code of conduct that, in terms of the applicable provisions, they elaborate.
When Financial Entities or Investment Advisors fall under any of the circumstances contained in Section A of Annex 13 of these provisions, and do not have the policies and procedures indicated in this article, or do not adhere to them, it will be considered that they incurred in a conflict of interest.
Additionally, it will be presumed that they incurred in a conflict of interest, unless proven otherwise, when, being in the circumstances of Section A of Annex 13 of these provisions, they make recommendations, advice, or suggestions or carry out operations that are not reasonable, or provide false or misleading information, receiving an income, commission, or any other consideration for said activities.
Likewise, it will be considered that Financial Entities incurred in a conflict of interest when they execute operations under the Operation Execution service, regarding which there is evidence of having provided the client with recommendations, advice, or suggestions that would have updated any of the circumstances established in Section A of Annex 13 of these provisions.
In addition to complying with policies and guidelines to avoid conflicts of interest, Financial Entities or Investment Advisors that fall under any of the circumstances referred to in Section A of Annex 13 of these provisions, must inform the client prior to carrying out the recommendations or operations that would imply the provision of the Investment Service in question, and, if applicable, inform of the commission received for the distribution of the Security and that is paid by a third party, and keep all of this available to the Commission.
" Article 44.- Brokerage houses, investment fund operating companies, and companies or entities providing the fund share distribution services, as well as Investment Advisors, must inform their clients prior to the provision of any Investment Service, of the commissions or considerations they will charge for these, ensuring to differentiate them from those coming from any other service they provide. The disclosure must be made through the Investment Services guide referred to in article 24 of these provisions, and the concepts of said commissions must be consistent with those made known through account statements in terms of Annex 14, or, regarding distributor companies that are authorized by the Commission to perform only the operations referred to in article 40 Bis, fractions I and VI of the Investment Funds Law, as well as Investment Advisors, through the reports on the operations they deliver to their clients in terms of what is indicated in these provisions.
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Article 45.-
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Regarding investment fund operating companies, distributor companies that are authorized by the Commission to perform only the operations referred to in article 40 Bis, fractions I and VI of the Investment Funds Law, and Investment Advisors, they must provide their clients with reports on the securities positions they maintain for their own clients. These reports must contain the specifications indicated in Annex 14 of these provisions. Investment Advisors must provide said reports to their clients at least semi-annually.
Article 46.-
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In the provision of Investment Services, Financial Entities or Investment Advisors may use and, if applicable, disseminate documents that have characteristics similar to Analysis Reports, that have been prepared abroad by foreign entities, provided that said entities are authorized, regulated, and supervised by some authority with functions equivalent to those of the Commission and belong to States that are designated members of the Council of the International Organization of Securities Commissions, or the body that replaces it. This condition must be included in the policies referred to in article 19, fraction V of this instrument, and the mechanisms, procedures, and criteria established in article 25, first and second paragraphs of these provisions, must consider the foregoing.
Article 52.- Financial Entities and Investment Advisors providing Investment Services must send to the Commission the information indicated in Annex 16 of these provisions, with the periodicity indicated in said Annex, within twenty-five natural days following the close of the corresponding months.
SECOND.- Articles SECOND and THIRD Transitory are REFORMED and Articles FIFTH and SIXTH Transitory are ADDED to the "General Provisions Applicable to Financial Entities and Other Persons Providing Investment Services," published in the Official Gazette of the Federation on January 9, 2015, and modified through modifying Resolutions published in the same Gazette on July 29 and October 26, 2015, to read as follows:
SECOND.- The norms contained in articles 1, 2, 3, 6, 9, third paragraph, 11, second paragraph, 19, 20, 21, 22, 25, 32, 34, 35, 36 first, second, and third paragraphs, 37, 38, 39, 40, 43, 46, 47, 48, 49, 50, as well as Annexes 2, 8, first paragraph, fraction I, 9, Section A, first paragraph, fractions III, V, and VII, third paragraph, 13, 15, and 18 of these Provisions regarding investment fund operating companies, fund share distributing companies, entities providing said services, and investment advisors, will enter into force on June 30, 2016.
THIRD.- The norms contained in articles 4, 5, 5 Bis, 7, 8, 9, first, second, and last paragraphs, 10, 11, first paragraph, 12, 13, 13 Bis, 14, 15, 16, 17, 18, 23, 24, first paragraph, 26, 27, 28, 29, 30, 31, 33, 36, fourth, fifth, and last paragraphs, 41, 42, 44, 45, 51, 52, and 53, as well as Annexes 3, 4, 5, 5 Bis, 6, 7, 8, first paragraph, and fractions II to VI and second and third paragraphs; 9, Section A, first paragraph, fractions I, II, IV, VI, VII, first and second paragraphs, VIII, as well as Sections B and C; 10, 11, 12, 14, 16, and 17 of these Provisions, regarding investment fund operating companies, fund share distributing companies, entities providing said services, and investment advisors, will enter into force on December 1, 2016.
FIFTH.- The norms contained in article 24, second, third, and last paragraphs of these Provisions regarding investment advisors, will enter into force on March 31, 2016.
SIXTH.- The norms contained in fraction VI of Annex 6 of these Provisions regarding credit institutions and brokerage houses will enter into force on January 1, 2017.
TRANSITORY
SOLE.- This Resolution will enter into force the day following its publication in the Official Gazette of the Federation.
Respectfully,
Mexico, D.F., January 25, 2016. - The President of the National Banking and Securities Commission, Jaime González Aguadé. - Initialled.
ANNEX 3
ELEMENTS TO DETERMINE THE CLIENT PROFILE IN ADVISED INVESTMENT SERVICES
A. Elements to consider
I.
Client knowledge and experience:
a)
The level of education, age, occupation, current professional activity, and, if applicable, previous occupations or professional activities that are relevant for
the determination of the profile;
b)
The Securities and Financial Derivative Instruments in which the client has invested, indicating
its frequency, term, and volume, specifying the type of Security or Financial Derivative Instrument, including, in an illustrative but not exhaustive manner:
Debt instruments issued by the United Mexican States;
Instruments representing debt owed by corporations or trusts;
Shares representing the social capital of investment funds;
Structured securities referred to in the General Provisions applicable to securities issuers and other participants in the securities market, published in the Official Journal of the Federation on March 19, 2003, and their respective modifications;
Asset-backed securities referred to in the General Provisions applicable to securities issuers and other participants in the securities market, published in the Official Journal of the Federation on March 19, 2003, and their respective modifications;
Fiduciary stock certificates for development, real estate, energy and infrastructure investment, and investment projects referred to in the General Provisions applicable to securities issuers and other participants in the securities market, published in the Official Journal of the Federation on March 19, 2003, and their respective modifications;
Shares of public limited companies or public limited companies promoting stock investment of high, medium, low, or null stock liquidity;
Foreign securities, and
Collective investment vehicles, listed and quoted throughout stock exchange sessions on stock exchanges, whose primary objective is to seek to reproduce the behavior of one or more indices, financial assets, or reference parameters.
For the purposes of the foregoing, Financial Entities or Investment Advisors must consider investments that the client has made in the last 2 years and cannot take isolated transactions into account.
c) Investment strategies of the transactions carried out by the client;
d) The Investment Services known by the client, and
e) The general level of financial knowledge regarding the transactions carried out, if applicable, and with respect to the Investment Services advised to be contracted.
II. Client's financial situation and capacity:
a) The origin and approximate percentage of their income and assets that will be allocated to the transactions of the Investment Services;
b) The percentage of financial commitments that, if applicable, the client assumes in the contracting of the Investment Services, in relation to the equity of said client, and
c) The percentage that the resources invested in the Financial Entity represents, in relation to those invested in others.
III. Client's investment objectives, with respect to the amounts invested in the account in question:
a) Purpose of the investment;
b) Expected duration for the investment;
c) The client's level of risk tolerance for each investment objective, and
d) Limitations and restrictions for investment, by the client's will.
Financial Entities and Investment Advisors must evaluate the client's knowledge and experience, financial situation and capacity, as well as investment objectives, considering more or fewer elements than those indicated in the previous subsections, prior to determination by the committee responsible for the analysis of Financial Products, and whose justification must be included in the policies and guidelines provided for in fraction I of article 19 of these provisions.
When Financial Entities or Investment Advisors do not have the necessary elements to determine the investment profile of the client referred to in this Section, or when the client themselves does not provide sufficient information, the Financial Entity or Investment Advisor must assume that, with respect to the omitted or insufficient aspect, the client has no prior knowledge or experience in financial matters, has not invested in Securities or Financial Derivative Instruments, or that their level of risk tolerance is the most conservative or the highest risk aversion of the Financial Entity or Investment Advisor, as applicable.
The client's profile may be specified in each of the accounts that they maintain with the Financial Entity or Investment Advisor, in accordance, if applicable, with their different investment objectives with respect to the amounts invested in each of the accounts.
In the case of clients that are corporations, the Financial Entity or Investment Advisor will determine those aspects contained in this Section that are applicable to them, in order to evaluate their financial situation, knowledge and experience in financial matters, as well as their investment objectives.
Regarding clients who are considered as Sophisticated Clients, for the preparation of the profile referred to in this Annex, Financial Entities or Investment Advisors will only be obligated to know their investment objectives.
B. Obligations in determining the client's investment profile
Financial Entities or Investment Advisors may carry out the evaluation regarding the fractions of Section A of this Annex simultaneously or individually for each of them.
Additionally, the information that Financial Entities or Investment Advisors obtain in order to carry out the evaluation of said fractions will be based on the Financial Product or Investment Service advised, and may consider a greater or lesser number of the aspects indicated in each of them.
When Financial Entities or Investment Advisors, in accordance with the policies and guidelines approved by their board of directors or equivalent body, or those determined by the Investment Advisor themselves if they are natural persons, use the interviews or questionnaires referred to in the last paragraph of article 19 of these provisions, said interviews or questionnaires may not induce the client to respond in a certain way; contain answers referring only to numerical scales without being associated with qualitative elements; allow for the possibility of generating multiple responses for the same client with respect to the same account. Likewise, the interviews or questionnaires must contain clear and easy-to-understand questions for clients that allow them to respond appropriately.
The evaluation referred to in this Annex must be carried out again, in order to determine a different investment profile, when the clients themselves provide additional information to the Financial Entity or Investment Advisor, when in their judgment elements that could modify the profile should be considered, or when the information available to the Financial Entity or Investment Advisor is insufficient to verify that the recommended Financial Product is reasonable.
C. Report of the investment profile to clients
Once the evaluation has been carried out considering the elements indicated in Section A of this Annex, Financial Entities or Investment Advisors must inform the client of the profile that resulted, explaining its meaning in detail in order to obtain their agreement with said profile. In the event that the client does not give their agreement, the Financial Entity or Investment Advisor must request more information from them so that this determines a profile that is acceptable to the client and that the Financial Entity or Investment Advisor themselves considers applicable. Regarding clients who do not provide additional elements or information but who wish for their investment profile to be riskier with respect to the one proposed by the Financial Entity or Investment Advisor, it will be necessary for the person responsible for supervising compliance with the provisions on Advised Investment Services referred to in article 22 of these provisions, the compliance officer, or the person or area that in accordance with the code of conduct of Investment Advisors that are corporations is in charge of internal control mechanisms, to intervene in its determination, in which case said person must verify that the client is informed of the risks of receiving Advised Investment Services with such a profile. When the Financial Entity or Investment Advisor does not have the client's agreement on their investment profile, they cannot provide Advised Investment Services.
Additionally, the Financial Entity or Investment Advisor must request that the client confirm, at least once every two years, that the elements used to determine their profile have not undergone significant changes. In the event of not having this confirmation, Financial Entities or Investment Advisors must warn their clients that they will continue to provide Advised Investment Services with that same investment profile.
Financial Entities or Investment Advisors that use profile categories may in no case request that their clients select any of them and must:
I. Associate them with quantitative and qualitative variables;
II. Explain the differences between the different categories, using clear and easy-to-understand language, as well as refrain from using phrases open to interpretation or value judgments, and
III. Clearly reflect the relationship between risk and return of the category in question.
D. Use of systems
Financial Entities or Investment Advisors that use systems or electronic means as tools for carrying out the client evaluation referred to in this Annex in order to determine their profile, must ensure that said systems or electronic means are used in the circumstances and in the markets in accordance with which they were designed. Additionally, Financial Entities or Investment Advisors that are corporations must ensure that the personnel, areas, or collegiate bodies responsible for determining the client's profile adequately know the systems or electronic means they use to carry out such evaluation.
Likewise, Financial Entities or Investment Advisors must determine the scope of use of the systems or electronic means, as well as have tools that allow them to validate the general results or of each of the concepts evaluated by such systems or electronic means.
E. Other obligations
Financial Entities or Investment Advisors must keep documentary support of the evaluation referred to in this Annex, identifying the date on which it was carried out, as an integral part of the client's file, mentioning, if applicable, the account in question. Likewise, Financial Entities or Investment Advisors that are corporations must identify and designate the persons, areas, or collegiate bodies responsible for carrying out the client evaluation, as well as the systems, tools, or electronic means used in terms of Section D of this Annex. For the case of Investment Advisors that are natural persons, they must clearly identify and document the corresponding systems, tools, or electronic means.
Financial Entities or Investment Advisors may deliver the justification referred to in article 7 of these provisions, regarding the fact that the recommended Investment Strategy or composition of the recommended investment portfolio is reasonable, together when they inform their clients of the determination of their investment profile.
ANNEX 4
ELEMENTS FOR DETERMINING THE PROFILE OF THE FINANCIAL PRODUCT
IN ADVISED INVESTMENT SERVICES
A. Financial Products in general
For the purposes of carrying out a reasonable analysis of the Financial Products referred to in this subsection and to determine their profile, Financial Entities or Investment Advisors must consider the public information related to the following elements, when applicable to said Financial Products and according to their nature:
I. The investment needs that could be satisfied;
II. The objectives and specifications;
III. The associated risks, including credit, liquidity, and market risk, as well as the evaluation of risks inherent to the underlying assets.
Financial Entities or Investment Advisors regarding Securities that have a rating granted by any securities rating agency, must consider additional elements to said rating to determine credit risk;
IV. Their liquidity, the existence of a secondary market, and the options that exist for their negotiation. Additionally, they must consider if the distribution of the Security is among the general public investor;
V. The current and historical financial situation of the Issuer of the Security, counterparty, or provider of the Financial Derivative Instrument;
VI. The volatility of its price;
VII. The associated operating costs, including commissions and compensations that must be paid;
VIII. The quality of the custodians, trustees, asset managers, or guarantors associated with the Security or Financial Derivative Instrument;
IX. The price in function of the risks of the Financial Product;
X. Information about its characteristics;
XI. The priority in its payment, in the event of the commercial bankruptcy of the Issuer or counterparty;
XII. For the case of Capital-representative Securities, consider if they are subject to an initial public offering or if they are considered for the calculation of any of the stock indices, and
XIII. Regarding the Securities or Financial Derivative Instruments indicated in Section B of this Annex, they must additionally evaluate the following:
a) The underlying assets or components from which the cash flows associated with the Security or Financial Derivative Instrument depend, if applicable;
b) The structure of the Security or Financial Derivative Instrument, including its cash flows, the way in which associated risks are mitigated or increased, and the functions and responsibilities of third parties in said structure, if applicable;
c) The availability and relevance of information about the Security or Financial Derivative Instrument in the market where it is traded, as well as of the underlying assets or components that integrate it, and
d) That the analysis of the underlying assets or components of the Security or Financial Derivative Instrument has been carried out based on relevant information about said assets or components, if applicable.
Financial Entities or Investment Advisors must ensure that the profiling referred to in this Annex is updated at all times. In virtue thereof, they are obligated to consider any change in the elements provided for in it, as well as relevant events of the Issuers.
B. Other Financial Products
The Financial Products indicated below are subject to fraction XIII of Section A above for the purposes of determining their profile:
I. Structured securities.
II. Asset-backed securities, fiduciary stock certificates for development, real estate, energy and infrastructure investment, and investment projects referred to in the General Provisions applicable to securities issuers and other participants in the securities market published in the Official Journal of the Federation on March 19, 2003, and their respective modifications.
III. Securities issued abroad recognized by the Commission in terms of the General Provisions applicable to the International Quotation System published in the Official Journal of the Federation on December 18, 2003, and their respective modifications, or analogous.
IV. Capital instruments that can be considered for the purposes of capital integration, in terms of the General Provisions applicable to credit institutions published in the Official Journal of the Federation on December 2, 2005, and their respective modifications, in case the issuer of said instruments is part of the same Consortium or Business Group to which the Financial Entity belongs;
V. Securities issued by collective investment vehicles, listed and quoted throughout stock exchange sessions on stock exchanges, registered in the Registry whose primary objective is to seek to reproduce the behavior of one or more indices, financial assets, or reference parameters, when said vehicles fall under any of the following circumstances:
a) They maintain invested directly or indirectly less than 80 percent of their equity in assets that are part of the index, financial asset, or reference parameter to which they are referenced.
The above circumstance will not be applicable regarding collective investment vehicles, listed and quoted throughout stock exchange sessions on stock exchanges, registered in the Registry whose primary objective is to seek to reproduce the behavior of one or more indices, financial assets, or reference parameters, whose underlying, in all cases, are financial derivative instruments referred to commodities. Financial assets will be understood as those defined as such in the "General Provisions applicable to brokerage houses", published in the Official Journal of the Federation on September 6, 2004, and their respective modifications, particularly in Annex 5, criterion C-1 "Recognition and derecognition of financial assets", or the one that replaces it.
b) They are of active management, understood as acts that result in the turnover of any good or right integral to the assets of the vehicle, with the purpose of seeking to take advantage of market opportunities and increase the expected return, and thereby surpass the reference parameter;
c) There are credits, loans, or financing owed by the investment vehicle that must be paid with the financial assets of the vehicle itself;
d) They take short positions in any of the assets subject to investment, which result from transactions other than the lending of securities;
e) They seek to reproduce mathematically or statistically in an inverse or exponential manner, the assets, the index, or the reference parameter;
f) The indices, financial assets, or reference parameters that they reproduce mathematically or statistically, are inverse or exponential of other indices, financial assets, or reference parameters, and
g) The indices, financial assets, or reference parameters that they reproduce mathematically or statistically do not have a public methodology that allows replicating said indices, assets, or reference parameters.
VI. Securities issued by collective investment vehicles, listed and quoted throughout stock exchange sessions on stock exchanges, registered in the Registry, whose primary objective is to seek to reproduce the behavior of one or more indices, financial assets, or reference parameters, when in turn they invest directly or indirectly in Securities issued by societies or investment mechanisms known internationally as "hedge funds".
VII. Financial derivative instruments.
VIII. Other Complex Financial Products, including Foreign Securities not listed in the international quotation system of stock exchanges nor registered in the Registry.
Financial Entities and Investment Advisors may consider more or fewer elements than those indicated in this Annex, prior to determination by the committee responsible for the analysis of Financial Products, and whose justification must be included in the policies and guidelines provided for in fraction II of article 19 of these provisions.
ANNEX 5
MINIMUM CONTENT OF THE GENERAL FRAMEWORK OF ACTION FOR
PROVIDING INVESTMENT MANAGEMENT
A. Financial Entities or Investment Advisors that provide Investment Management will be obligated to elaborate a general framework of action in accordance with the Investment Strategy that has been determined in terms of these provisions, which must contain the following:
I. The nature and scope of the powers or discretion of the attorney-in-fact or of the Investment Advisor themselves when this is a natural person, to carry out transactions with the public in relation to the transactions they carry out on behalf and for the account of the client;
II. Any significant risk associated with the nature and scope of the discretion of the attorney-in-fact to carry out transactions with the public or of the Investment Advisor themselves when this is a natural person, derived from the provision of the Investment Management service, as well as the form and terms under which such discretion will be exercised;
III. The way in which the client can modify the agreed discretion in the Investment Management service;
IV. The characteristics of the Securities and Financial Derivative Instruments that could make up the account in question, including possible market, credit, liquidity, operational, counterparty, and legal risks. In all cases, the Financial Entity or Investment Advisor must explain clearly what such risks consist of and how they could affect the return of the Security or Financial Derivative Instrument in question, as well as the return of the account as a whole;
V. The Investment Strategies that will be followed when providing Investment Management, indicating:
a) The type of Securities or Financial Derivative Instruments in which investment can be made, including:
i. The relationship between said Securities and Financial Derivative Instruments and the level of risk that the client is willing to tolerate according to their profile and investment objective, taking into account the value at risk of the Securities or Financial Derivative Instruments or the "beta" parameter regarding shares representing the social capital of Issuers, national or foreign, or credit titles that represent them;
ii. The term that is estimated or considered adequate for the client to maintain their investment;
iii. The maximum investment limits by type of Security or Financial Derivative Instrument, specifying the Issuer, sector, or any other factor that the Financial Entity or Investment Advisor themselves determines, and
b) The bases that will be used as a reference to compare the return of the investment, if applicable;
VI. The investment policy that the Financial Entity or Investment Advisor will follow, which may be:
a.)
Activa, through the taking of risks with the purpose of obtaining returns above the benchmark, or
b)
Passive, through the taking of risks exclusively to ensure that the return of the
account reaches the benchmark, making only the necessary investments for
this purpose.
VII.
The policy that the Financial Entity or Investment Advisor will follow regarding:
a)
The liquidity of the investment portfolio, and
b)
The contracting of securities loans, short sales, and leverage operations.
VIII.
The selection criteria to be followed regarding investments in shares of public limited companies or public limited companies promoting stock investment, in relation to:
a)
Target economic sectors;
b)
Marketability;
c)
The membership of the share in a specific stock index;
d)
The dividend policy of the company;
e)
The nationality of the company;
f)
The size of the companies, and
g)
Any other aspect that is relevant to the client.
IX.
The selection criteria to be followed regarding investments in debt-representative securities, in relation to:
a)
The target duration of the investment portfolio;
b)
The composition of probable investments by type of Issuer, indicating whether they are
governmental, state, municipal, banking, corporate, or trust-based, or if it will be
integrated by a mix of such Securities, and
c)
The credit rating granted by a securities rating agency.
X.
The investment in the Securities and Financial Derivative Instruments indicated in Section B
of Annex 4 of these provisions, indicating:
a)
The underlying assets that will be considered;
b)
The assumptions under which the Security or Financial Derivative Instrument could be
cancelled or amortized early, and
c)
The markets where such Securities or Financial Derivative Instruments are traded.
XI.
The policy to be followed in conditions of high volatility in financial markets, or in cases of
economic or political uncertainty;
XII.
The type of securities transactions that may be carried out.
ANNEX 5 BIS
MINIMUM CONTENT OF INVESTMENT AND OPERATION POLICIES TO PROVIDE
INVESTMENT MANAGEMENT FOR ISSUERS OF INDEXED FIDUCIARY CERTIFICATES
THAT DO NOT EXPLICITLY SEEK RETURNS HIGHER THAN THOSE OF THE INDEX, FINANCIAL
ASSET OR REFERENCE PARAMETER OR OF FIDUCIARY CERTIFICATES
WHOSE PRIMARY PURPOSE IS INVESTMENT IN SECURITIES AND WHOSE ASSETS ARE INVESTED
MAJORITARILY IN SECURITIES, ON AVERAGE OVER THE LAST SIX MONTHS
The investment and operation policies of Financial Entities or Investment Advisors who
are contracted to provide the Investment Management service, by Issuers of indexed fiduciary
certificates that do not explicitly seek returns higher than those of the index, financial asset
or reference parameter or of fiduciary certificates whose primary purpose is investment
in securities and whose assets are invested majoritarily in securities, on average over the last six
months, must contain the following:
I.
The type of securities transactions that may be carried out.
II.
The selection criteria to be followed regarding investments in shares of public limited companies
or public limited companies promoting stock investment, in relation to:
a)
Target economic sectors;
b)
Marketability;
c)
The membership of the share in a specific stock index;
d)
The dividend policy of the company;
e)
The nationality of the company;
f)
The size of the companies, and
g)
Any other aspect that is relevant to the fulfillment of the trust's objectives.
III.
The selection criteria to be followed regarding investments in debt-representative
Securities, in relation to:
a)
The composition of probable investments by type of Issuer, indicating whether they are
governmental, state, municipal, banking, corporate, or trust-based, or if it will be
integrated by a mix of such Securities, and
b)
The credit rating granted by a securities rating agency, where applicable.
IV.
The selection criteria to be followed regarding investment in the Securities and Financial Derivative
Instruments indicated in Section B of Annex 4 of these provisions, indicating where
applicable:
a)
The underlying assets that will be considered;
b)
The assumptions under which the Security or
Financial Derivative Instrument could be cancelled or amortized early;
c)
The markets where such Securities or Financial Derivative Instruments are traded, and
d)
The identification of the Financial Entities that will act as counterparties in the
conclusion of the respective contracts.
V.
The Investment Strategies to be followed in achieving the investment objective of the
Issuer, indicating the following:
a)
The type of Securities or Financial Derivative Instruments in which investment is permitted,
including:
i.
The relationship between such Securities and Financial Derivative Instruments and the investment
objective of the fiduciary certificate, and
ii.
The maximum investment limits by type of Security or Financial Derivative Instrument,
specifying the Issuer, sector, or any other factor that the Investment Advisor itself determines.
b)
The reference index that will be used to compare returns, including:
i.
The characteristics and composition of the reference index;
ii.
The identification of the reference index provider, indicating whether the Financial Entity
or the Investment Advisor or any related entity has any type of participation
in the calculation methodology or in its determination, and
iii.
The participation or relative weight of the components of the reference index and its
calculation methodology.
c)
The maximum level of reasonably expected replication error
with respect to the reference index.
The investment and operation policies must establish optimization techniques or
operations that seek to replicate an index, financial asset, or reference parameter, making
only the necessary investments for this purpose.
VI.
The policy to be followed regarding:
a)
The liquidity of the investment portfolio;
b)
The contracting of securities loans, short sales, and leverage operations;
c)
The management of the risks to which the Issuer's portfolio is exposed,
including formalized, authorized, and communicated criteria for decision-making in the
execution of operations, as well as for portfolio rebalancing;
d)
The simulation of scenarios of risk factors applicable to the management of the Issuer's portfolio;
e)
The minimization of the maximum reasonably expected level of replication error, including
policies to manage and anticipate action in case of breach of this;
f)
The description of aspects that may affect the investment management of the Issuer's portfolio
of securities to replicate the reference index, such as transaction costs
of illiquid components;
g)
The calculation of deviations with respect to the defined reference index;
h)
The management of potential conflicts of interest in the management of the Issuer's portfolio of
Securities, and where applicable, regarding the determination or calculation methodology of the index
of reference, and
i)
The structure of expenses and commissions.
VII.
The policy to be followed in extraordinary market conditions or high volatility in the
financial markets that affect the management of the Issuer's portfolio.
VIII.
The indication of the page of the worldwide electronic network known as the Internet on which they must
daily reveal:
a)
The portfolio of Securities in which the trust assets are invested;
b)
The number of certificates per unit;
c)
The theoretical price per certificate;
d)
The minimum conversion unit;
e)
The Securities administered
under the Investment Management service;
f)
The total percentage of expenses and commissions charged for the provision of their services;
g)
The one, three, and five-year returns of both the reference index and the fiduciary certificate, and
h)
A graph reflecting the replication or tracking error from the date of creation of the
fiduciary certificate, with respect to the reference index.
ANNEX 6
SECURITIES OR INSTRUMENTS SUBJECT TO COMMERCIALIZATION OR PROMOTION
Financial Entities may only Commercialize or promote to clients who are not
considered as Sophisticated Clients, the following Securities:
I.
Governmental Securities as defined in Circular 3/2012 issued by the Bank of Mexico or
the instrument that replaces it, as well as those Securities guaranteed or backed by the United
Mexican States, whose maturity term at the time of providing the Commercialization or promotion
service is equal to or less than three years;
II.
Securities that are:
a)
Banking deposit instruments registered in the Registry that have a rating granted by
some securities rating agency equal to AAA, or its equivalent in terms of the table
contained in Annex 19 of these provisions.
b)
Those that have a rating granted by some securities rating agency
equal to AAA, or its equivalent in terms of the table contained in Annex 19
of
these provisions.
c)
Optional titles, issued by financial entities that are part of the same
Financial Group, Business Group, or Consortium as the Financial Entity, or Issuers that also
have a rating granted by a securities rating agency equal to AAA,
or its equivalent in terms of the table contained in Annex 19 of these provisions, in
case that they are the final responsible parties for the payment of the Security.
The foregoing, provided that the maturity term of the Securities referred to in subsections a) to c) of
this fraction, at the time of providing the Commercialization or promotion service, is equal to or
less than one year and obligate their maturity to liquidate an amount at least equal to the principal
invested by the client.
III.
Structured Securities referred to in the General Provisions applicable to the
issuers of securities and other participants in the securities market, published in the Official Gazette
of the Federation on March 19, 2003, and their respective modifications, provided that the maturity term
of the security at the time of providing the Commercialization or promotion service is
equal to or less than one year, obligate their maturity to liquidate an amount at least equal to the
principal invested by the client, as well as that the entity backing the payment of the invested principal
has a rating granted by some securities rating agency equal to AAA, or its
equivalent in terms of the table contained in Annex 19 of these provisions;
IV.
Securities that are debt instruments of corporations or trusts, provided that
the maturity term of the security at the time of providing the Commercialization or
promotion service is equal to or less than one year and have a rating granted by some
securities rating agency equal to AAA, or its equivalent in terms of the table contained
in Annex 19 of these provisions, and
V.
Shares of investment companies whose investment assets are exclusively the
Securities indicated in subsections I and IV above, or shares of investment companies
in debt instruments that are classified according to the duration of their investment assets
as short or medium term in accordance with the General Provisions
applicable to investment companies and the persons who provide services to them, published in
the Official Gazette of the Federation on December 4, 2006, and their respective modifications.
VI.
Indexed fiduciary certificates referenced to Governmental Securities as defined
in Circular 3/2012 issued by the Bank of Mexico or the instrument that replaces it, as well
as those Securities guaranteed or backed by the United Mexican States, always
and
provided that they are managed by Financial Entities and Investment Advisors.
Financial Entities, except for stock distribution companies of investment funds and
entities that provide such services, may recommend to their clients in a generalized manner under the
scope of the Commercialization or promotion service, to carry out repo operations with a term equal to or less than one
year, in terms of the Rules to which credit institutions, brokerage houses,
investment companies, specialized investment companies for retirement funds, and the Rural
Finance Company must adhere in their repo operations, issued by the Bank of Mexico on January 12, 2007, and their
respective modifications or those that replace them, regarding Securities that have a rating
granted by some securities rating agency equal to AAA, or its equivalent in terms of the table
contained in Annex 19 of these provisions or when the counterparty of the operation also has
such a rating.
ANNEX 11
REGISTRATION OF FORMULATED RECOMMENDATIONS, INFORMATION
PROVIDED AND CLIENT INSTRUCTIONS
The register and log referred to in article 26 of these provisions, as well as the register referred to in
the penultimate paragraph of article 28 of this instrument, must contain as a minimum the following
information:
I.
The account number in which the operation would be or would be executed;
II.
The Financial Product, Security or
Issuer in question, specifying the board code or series;
III.
The quantity to buy or sell, as well as, where applicable, the price;
IV.
The date and time when the client instructed the operation, and
V.
The identification of the Investment Service from which the client's instruction originates.
ANNEX 12
STANDARDS FOR THE DISCLOSURE OF INFORMATION VIA THE WORLDWIDE
ELECTRONIC NETWORK KNOWN AS THE INTERNET
The minimum specifications in the use of the worldwide electronic network known as the Internet, by
Financial Entities or Investment Advisors, in case they have one, for the disclosure
of
information, are as follows:
I.
That the information published on the Internet page be drafted in Spanish and additionally
be consistent with that contained in printed documents;
II.
The possibility of downloading documents containing information that clients
must know prior to the celebration of an operation or the contracting of an Investment
Service;
III.
That all modifications made by the Financial Entity or by the Investment Advisor
to the information published on the electronic page of the worldwide network known as
the Internet be registered, and
IV.
In case hyperlinks are used, the clear indication to the client of the moment when they are
leaving the electronic page of the worldwide network known as the Internet of the Financial Entity
or the Investment Advisor, warning that they are entering a different site, whose content is not
the responsibility of the Financial Entity or the Investment Advisor in question.
In any case, Financial Entities or Investment Advisors must allow free consultation and
download to the general public, of the investment services guide referred to in article 24 of
these provisions through their electronic page on the worldwide network known as the Internet, as well as the
characteristics of the interviews or questionnaires referred to in article 19, last paragraph of these
provisions.
ANNEX 13
ON CONFLICTS OF INTEREST
A.
On the conflicts of interest referred to in article 36 of these provisions
I.
Financial Entities or non-independent Investment Advisors must have
policies and procedures to avoid conflicts of interest, which refer at least to the
following scenarios:
a)
Providing Advised Investment Services regarding Securities that have been issued
by the Financial Entity itself or by Related Persons with this directly or through
trusts and are placed by the brokerage house as Lead Underwriter, member of the
underwriting syndicate, or as Participant in the placement and the Financial Entity itself or the
non-independent Investment Advisor whose shareholders, partners, directors, executives,
attorneys, or employees participate in the capital or administrative bodies of said
Financial Entity, intends to sell to its own clients up to twenty percent of the
issuance in question, unless it concerns clients who are Sophisticated Clients to whom
the Investment Advisory service is being provided;
b)
Providing Advised Investment Services regarding Securities that have been
issued by persons who are not related, and are placed by the brokerage house as
Lead Underwriter, member of the underwriting syndicate, or as Participant in the placement and the
Financial Entity or non-independent Investment Advisor whose shareholders, partners,
directors, executives, attorneys, or employees participate in the capital or administrative
bodies of said Financial Entity, intends to sell to its own clients up to
forty percent of the issuance in question, unless it concerns clients who are
Sophisticated Clients to whom the Investment Advisory service is being provided;
c)
Providing Commercialization or promotion to Sophisticated Clients regarding Securities that
have been issued by the Financial Entity itself or by Related Persons with this
directly or through trusts and are placed by the brokerage house as Lead
Underwriter, member of the underwriting syndicate, or as Participant in the placement and the Financial
Entity that is part of the Consortium or Business Group to which the brokerage
house belongs, intends to sell to its own clients said Securities;
d)
Providing Investment Advisory to Sophisticated Clients in any of the
scenarios referred to in article 38, subsection III or Section D of this Annex;
e)
Providing Advised Investment Services or, providing Commercialization or
promotion regarding Securities and Financial Derivative Instruments regarding which the
Financial Entity itself or the non-independent Investment Advisor whose shareholders,
partners, directors, executives, attorneys, or employees participate in the capital or administrative
bodies of said Financial Entity has participated in their structuring, and
f)
Providing Advised Investment Services regarding Securities subject to public offer
that have been issued by the Financial Entity itself or by Issuers that are part of the
same Financial Group, Business Group, or Consortium as the Financial Entity or non-independent
Investment Advisor, which result in a holding among the clients of the Financial Entity itself
or non-independent Investment Advisor of up to twenty percent of the total issuance, unless it concerns clients who are Sophisticated Clients to whom
the Investment Advisory service is being provided.
II.
Investment Advisors in the provision of Advised Investment Services must have
policies and procedures to avoid conflicts of interest, which refer at least to the
following scenarios:
a)
When any other service or activity is additionally provided, including without
limitation, mergers, acquisitions, credit management, and wills.
b)
When exclusivity agreements are celebrated or non-economic benefits can be
obtained for the client, with certain intermediaries of the securities market or
financial institutions from outside the same type, which imply an interest in the
recommendations they formulate to their clients.
c)
Providing Advised Investment Services when there is any other potential
conflict of interest that by the nature of their operations had not been identified,
and must immediately inform their clients of the existence of said potential
conflict of interest, explicitly indicating what it consists of, as well as the mechanisms
for its management.
B.
Minimum content of policies and guidelines to avoid the existence of conflicts
of
interest
The policies and guidelines referred to in article 36 of these provisions must contain, at least,
the following:
I.
The procedures to supervise the flow of information within the different areas that
integrate the Financial Entity or
the Investment Advisor that is a legal entity, including the
communications made by personnel assigned to the Business Areas or any other that
could imply a conflict of interest, with those persons who work in the areas
responsible for providing Investment Services;
II.
The prohibition to avoid any pressure, persuasion, or transmission of confidential
information by personnel who work in the areas,
where applicable,
responsible for the design and structuring of
Financial Products, corporate financing, investment banking, placement of Securities,
management of investment fund assets, distribution of investment fund shares, or
any other that could imply a conflict of interest, regarding the activities of the
persons who work in the areas responsible for providing Investment Services
and their
clients;
III.
The procedures to prevent or control the exchange of information between executives and
employees of the Financial Entity or the Investment Advisor that is a legal entity, when
such exchange of information could be to the detriment of the interests of one or more clients;
IV.
The definition of those responsible for the handling of proprietary operations of the Financial
Entity or the Investment Advisor that is a legal entity, as well as the obligation to separate
adequately the functions and responsibilities of said persons regarding the employees
and executives of the Financial Entity or the Investment Advisor that is a legal entity
responsible for the provision of Investment Services, and
V.
The prohibition for Analysts, attorneys for conducting operations with the public, stock
operators, and other employees of Financial Entities or Investment Advisors that are
legal entities providing Investment Services, to accept economic benefits or of
any other kind from persons who have an interest in the direction of the recommendations or
operations they formulate or carry out.
C.
On the conflicts of interest referred to in article 37 of these provisions
Financial entities or non-independent investment advisors whose shareholders, partners, directors, executives, authorized representatives, or employees participate in the capital or governing bodies of the financial entity in question, if they fall under any of the following circumstances, will incur a conflict of interest for failing to comply with the obligation to diversify issuance. The circumstances are:
I.
Providing Advised Investment Services with respect to Securities in public offering, whose placement among their own clients exceeds twenty percent of the total issuance as a result of such Advised Investment Services, regarding Securities issued by the financial entity itself or by Persons related to it, or when the non-independent investment advisor whose shareholders, partners, directors, executives, authorized representatives, or employees participate in the capital or governing bodies of the financial entity in question, recommends the acquisition of such Securities;
II.
Providing Advised Investment Services with respect to Securities in public offering, whose placement among their own clients exceeds forty percent of the total issuance when it concerns issuances by persons who are not related to the financial entity or non-independent investment advisor whose shareholders, partners, directors, executives, authorized representatives, or employees participate in the capital or governing bodies of the financial entity in question, in the following cases:
a)
It concerns Securities subject to public offering in which the financial entity acts as Lead Underwriter, member of the underwriting syndicate, is part of the process of such public offering, or is a Participant in the placement, or when the non-independent investment advisor whose shareholders, partners, directors, executives, authorized representatives, or employees participate in the capital or governing bodies of the financial entity in question, recommends the acquisition of such Securities;
b)
It concerns Securities subject to public offering and a part or all of the resources obtained through it are destined for the payment of obligations or liabilities in favor of the placing financial entity or the legal entities that form part of the same Consortium or Business Group to which said financial entity belongs, or when the non-independent investment advisor whose shareholders, partners, directors, executives, authorized representatives, or employees participate in the capital or governing bodies of the financial entity in question, recommends the acquisition of such Securities;
c)
It concerns Securities backed by assets referred to in the General Provisions applicable to securities issuers and other participants in the securities market published in the Official Journal of the Federation on March 19, 2003 and their respective modifications, when the assets belong to the financial entity or to the persons that form part of the same Consortium or Business Group to which it belongs, or when the non-independent investment advisor whose shareholders, partners, directors, executives, authorized representatives, or employees participate in the capital or governing bodies of the financial entity in question, recommends the acquisition of such Securities, or
d)
It concerns Securities that are in the own position of the financial entity, the non-independent investment advisor, or in the position of any entity that forms part of the same Consortium or Business Group to which these belong, if in the initial public offering it acted as Lead Underwriter, member of the underwriting syndicate, or Participant in the placement.
D.
Exceptions to the limits provided in Article 38, fraction III and Section C of this Annex to avoid a conflict of interest
It will be considered that Financial Entities or Non-independent Investment Advisors do not incur in any of the conflicts of interest referred to in Article 38, fraction III and Section D above, in the cases and under the following conditions:
I.
When they provide Advised Investment Services exceeding the limits referred to in Article 38, fraction III or Section C above, fraction II, provided that:
a) they have obtained prior authorization from the committee responsible for the analysis of Financial Products or equivalent body or responsible person for each issuance or for each placement program, the latter regarding short-term issuances; the authorization will be granted with respect to placement programs in which successive realization is foreseen, provided that in each corresponding issuance the conditions provided in these provisions are met, and
b) it concerns any of the following securities:
a)
Securities that have a rating equal to or higher than AAA or AA or its equivalent, in terms of the table contained in Annex 17 of these provisions, issued by a securities rating agency, or
b)
Structured securities referred to in the General Provisions applicable to securities issuers and other participants in the securities market, published in the Official Journal of the Federation on March 19, 2003 and their respective modifications, when the total term at the time of issuance of the instrument is equal to or less than one year and obligate its maturity to liquidate an amount at least equal to the principal invested by the client.
II.
When they exceed the limits provided in fractions I and II, subsections a) and d) of Section C of this Annex, or when they exceed the limit provided in Article 38, fraction III of these provisions and in any of these cases provide Advised Investment Services, provided that they have obtained prior authorization of the placement program by the committee responsible for the analysis of Financial Products, it concerns optional titles, and the following is met:
a)
In the event that the optional title contains a returnable portion of its amount, the debt instruments that form part of the coverage of said amount cannot be Securities issued by the financial entity itself or by Persons related to it;
b)
The financial entity maintains until the maturity of each issuance of optional titles a hedging portfolio that compensates in an interval between 95% and 105% the exposure of the Issuer derived from the placement of the titles, to the movements of the underlying of the optional title (measured by its "delta"). This is understood in the sense that the hedging portfolio must be formed by Securities or Financial Derivative Instruments correlated with the underlying of the issued title.
Without prejudice to the foregoing, if the coverage is located outside the mentioned interval due to movements in market conditions, in order to be considered that no conflict of interest is incurred, adjustment operations must be carried out within a period not exceeding two business days counted from when the deviation occurs. In any case, the foregoing must be duly documented by the committee responsible for the analysis of Financial Products, equivalent body, or responsible person;
c)
Financial entities issuing optional titles must have a rating granted by a securities rating agency equal to AAA or AA, or its equivalent in terms of the table contained in Annex 17 of these provisions, in case it is the final responsible for the payment of the Security.
The authorization referred to in this fraction may only be granted by said committee or equivalent body or responsible person when it ensures that the provisions in all and each of the subsections above are met and this is recorded in the corresponding minutes.
III.
When it concerns any of the following Securities:
a)
Shares representing the social capital of Issuers or credit titles that represent them;
b)
Shares representing the social capital of investment societies;
c)
Securities issued by collective investment vehicles, listed and traded during stock exchange sessions, registered in the Registry whose main objective is to seek to reproduce the behavior of one or more indices, financial assets, or reference parameters;
d)
Fiduciary development, real estate, energy and infrastructure investment, and investment project exchange certificates referred to in the General Provisions applicable to securities issuers and other participants in the securities market, published in the Official Journal of the Federation on March 19, 2003 and their respective modifications, or
e)
Securities referred to in Annex 6 of these provisions.
E.
Regarding conflicts of interest with respect to Investment Advisors who are natural persons:
Investment Advisors who are natural persons must have policies and guidelines to avoid incurring conflicts of interest. It will be considered in an indicative but not exhaustive manner that Investment Advisors who are natural persons incurred a conflict of interest in the following circumstances:
I.
They obtain any non-economic benefit, including reports or analysis of Financial Products, from a Financial Entity in exchange for executing their clients' orders with said Entity or in exchange for any other arrangement between the parties and do not reveal such situation to their clients.
II.
They recommend to their clients enter into a brokerage contract or securities administration contract with a Financial Entity to execute orders, when the Investment Advisor themselves is a shareholder of a credit institution, brokerage house, investment fund operating society, investment fund share distribution society, securities rating institution, or foreign financial entity, or if they are a member of the board of directors, executive, manager, authorized representative, employee, or participate in the governing bodies of a credit institution, brokerage house, investment fund operating society, investment fund share distribution society, securities rating institution, or foreign financial entity and do not reveal such situation to their clients.
In the event that the Investment Advisor does reveal to their clients that they fall under the circumstance established in the previous paragraph, it will not be considered that they incurred a conflict of interest, but in such revelation they must also explain the reasons why they make such recommendation.
ANNEX 14
ADDITIONAL INFORMATION THAT ACCOUNT STATEMENTS AND OPERATION REPORTS WILL CONTAIN
A. Minimum information
I.
The Securities, Financial Derivative Instruments, repo operations, guarantees, securities lending, and cash that make up the investment portfolio of their clients, as well as the Intermediation Expenses and Commissions incurred in the realization and execution of any operation carried out in the period to which the information refers;
II.
The result of the calculation of the Investment Portfolio Return as well as the Net Investment Portfolio Return, carried out in accordance with what is provided in Section B of this annex;
III.
The valuation differential for each of the Securities, Financial Derivative Instruments, repo operations, guarantees, and securities lending, in accordance with the following:
a)
For each of the Securities, Financial Derivative Instruments, repo operations, guarantees, and securities lending that make up the investment portfolio at the close of the reported period, between the price provided by a price provider for the close of said period and the price at the close of the previous period reported or in case such instruments had been acquired or transferred to the contract for which the account statement or operation report is issued during the reported period, with respect to the acquisition or transfer cost, possibly using the average cost, and
b)
For each of the Securities, Financial Derivative Instruments, repo operations, guarantees, and securities lending that Financial Entities have sold or transferred to another account or contract different from the contract for which the account statement is issued during the reported period, between the sale or transfer price and the acquisition or transfer price, possibly using the average cost determined on the date of sale.
Likewise, any payment received or paid, including in case dividends, related to each Security, Financial Derivative Instrument, repo operation, guarantee, and securities lending that form part of the client's investment portfolio must be reported.
Investment Advisors will not be obligated to incorporate the information referred to in this fraction.
IV.
When a reference index had previously been agreed upon between the brokerage house or the Investment Advisor and the client, a comparison must be included between the Investment Portfolio Return during the reported month and the return of said index, and
V.
The breakdown of Intermediation Commissions and Expenses, for Investment and Administrative Services charged to the client, as well as the Withheld Income Tax, including the method of calculation and the amount of these as a proportion of the total value of the investment portfolio, including a declaration to the effect that more detailed additional information can be provided at the client's request. The Commissions charged to the client must be consistent with what is established in Article 44 and with the criteria referred to in Article 45 of these provisions, and paid expenses must also be included. For purposes of their presentation in the account statement or in the operation report, in the case of Investment Advisors, they must be classified according to the following:
a)
In the item "Intermediation Commissions and Expenses"
all amounts charged to the client, related to operations carried out during the period being reported, must be included. The revealed amounts must incorporate the Value Added Tax (V.A.T.) concerning each operation carried out.
b)
In the item "Commissions and Expenses for Services"
all amounts charged to the client for portfolio management, commissions by type of Investment Service, and performance commissions, among others, must be included. The revealed amounts must incorporate the Value Added Tax (V.A.T.) corresponding to each expense or commission charged to the client.
c)
In the item "Administrative Commissions and Expenses"
all amounts charged to the client for each concept that is not considered as "Commissions and Expenses for Services" nor as "Intermediation Commissions and Expenses" must be included. The revealed expenses and commissions must include, among others, the following: commission for securities custody, commission for check collection service, interest on debit balance. The revealed amounts must incorporate the Value Added Tax (V.A.T.) concerning each expense or commission charged to the client.
d)
In the item "Withheld Income Tax"
the total amount of Withheld Income Tax in terms of fiscal legislation must be revealed, in the corresponding period.
VI.
Regarding the account statements sent by societies or entities that provide the services of distribution of investment fund shares to their clients, they must contain, in addition to what is provided in Article 61 Bis of the Investment Funds Law, the following information:
a)
The detailed description of all operations carried out by the investor, as well as the charges on their behalf carried out by the investment fund operating society that administers the investment fund in question or, in its case, the society or entity that acts as distributor of investment fund shares.
b)
The indication of the price at which the purchase and sale operations with the investor were carried out, which must correspond to the updated valuation price of the shares of variable income investment funds and in debt instruments.
c)
In the event that the investment fund in debt and variable income instruments in question had applied the differential referred to in Article 15 of the General Provisions applicable to investment funds and persons providing services to them, published in the Official Journal of the Federation on November 24, 2014, or those that replace them, on the updated valuation price, said fund must indicate in the account statement both the adjusted valuation price and the applied differential and the resulting market price, including the position of each investor at the end of the month in question, taking into consideration the valuation price of the day of the close of the corresponding period and, in its case, the differential applied on that date.
d)
The share position on the last day of the monthly cut and the position at the previous monthly cut.
e)
The list of assets that make up the investment portfolio of the investment fund, or specify the site of the electronic page on the worldwide network called Internet of the societies or entities that provide them with the services of administration of investment fund assets and distribution of investment fund shares, where the list of said assets is published.
f)
The category corresponding to the investment fund, in accordance with what is established in Annex 1 of these provisions.
g)
The current rating granted to them by a securities rating institution, regarding investment funds in debt instruments.
h)
The data of the site of the electronic page on the worldwide network called Internet where the information of the investment fund is found.
i)
The data of the Specialized Unit that will attend to the inquiries and complaints that, in its case, clients formulate, in accordance with Article 50 Bis of the Law for the Protection and Defense of the User of Financial Services.
j)
At the foot of the corresponding account statement, the following legend: "Investments in shares of the indicated investment funds do not guarantee future returns, nor are their operating societies responsible for the losses that the investor may suffer as a consequence of said investments or assume the risk of variations in the differential of the price in favor of clients".
k)
The notice regarding modifications related to the investment or acquisition regime specific to variable income and debt instrument investment funds provided for in the second paragraph of Article 14 of the General Provisions applicable to investment funds and persons providing services to them, published in the Official Journal of the Federation on November 24, 2014, or those that replace them.
B. Calculation of investment portfolio return
Brokerage houses, Investment Advisors, and societies distributing investment fund shares, as well as entities providing said service, that provide Investment Services, will disclose to their clients through their account statements or operation report, the return of their investment portfolios, adjusting to the following:
I.
It must be carried out:
a)
For the calculation of the Investment Portfolio Return, deducting the Intermediation Commissions and Expenses of the reported period, and
b)
At the close of the last calendar day of the month in question.
II.
It must be carried out through the calculation of time-weighted return rates that adjust External Cash Flows, in accordance with the following:
III.
Securities, Financial Derivative Instruments, repo operations, guarantees, and securities lending must be registered in the investment portfolios on the dates they are settled or transferred for purposes of calculating the return.
Notwithstanding, purchase or sale operations of said instruments must be recognized in the account statement on their negotiation date, including a section in which each pending operation for settlement is presented;
IV.
In each reported period, the Investment Portfolio Return (as indicated in subsection a) of numeral I of this Section B) and the Net Investment Portfolio Return (deducting Intermediation Commissions and Expenses, Service Commissions and Expenses, Administrative Commissions and Expenses, and Withheld Income Tax) must be presented, clearly differentiating both returns;
V.
Account statements and operation reports must include the Net Investment Portfolio Return of the 11 months prior to the month in question, and
VI.
The reference of the currency used in the calculation of the return must be included.
Returns calculated for time periods less than one year cannot be annualized.
ANNEX 16
REGULATORY REPORTS OF INVESTMENT SERVICES
(SECURITIES PORTFOLIO)
R03 J-0311 Investment Services (Securities Portfolios)
The regulatory subreport R03 J-0311 Investment Services (Securities Portfolios) aims to collect information from Financial Entities regarding the characteristics of clients, including those referred to in Article 2, fractions I to V of these provisions, as well as of accounts and the composition of Securities portfolios on which they maintain custody of the Securities.
The frequency of preparation and presentation of this report must be quarterly and the information included will correspond to the last day of the months of March, June, September, and December and must be sent to the Commission within 25 natural days following the close of the corresponding month.
CAPTURE FORMAT
The filling of subreport R03 J-0311 Investment Services (Securities Portfolios) will be carried out through the following format:
INFORMATION REQUESTED
SECTION
FORM IDENTIFIER
PERIOD REPORTED
ENTITY KEY
FORM KEY
CLIENT DATA SECTION
CLIENT IDENTIFICATION NUMBER
DATE OF BIRTH
TYPE OF PERSON
TYPE OF CLIENT
CONTRACT DATA SECTION
CONTRACT NUMBER
STATUS
TOTAL VALUE IN PESOS
INVESTMENT SERVICE
TYPE OF ACCOUNT OR SUBACCOUNT
TYPE OF CONTRACT
OPENING DATE
DETERMINE IF IT HAS AN INVESTMENT ADVISOR
INVESTMENT ADVISOR
PORTFOLIO DATA SECTION
TYPE OF INVESTMENT
ISSUER
ISSUANCE OR SERIES
IDENTIFICATION CODE
TYPE OF SECURITY
NUMBER OF TITLES
TOTAL FAIR VALUE IN PESOS
COUNTRY OF ACQUISITION
RELATIONSHIP OF THE VALUE
COMMISSION
INVESTMENT SERVICE OF ORIGIN
R03 J-0313 Investment Services (Securities Portfolios Custodied Abroad)
The regulatory subreport R03 J-0313 Investment Services (Securities Portfolios Custodied Abroad) aims to collect information from Financial Entities regarding the characteristics of clients, including those referred to in Article 2, fractions I to V of these provisions, as well as of the accounts and the composition of Securities portfolios, regarding those foreign securities not listed in the international quotation system of stock exchanges nor registered in the Registry, on which Investment Services are provided within national territory and which are custodied in other entities abroad.
The frequency for preparing and submitting this report must be semiannual, and the information included must correspond to the last day of the months of June and December, and must be sent to the Commission within 25 natural days following the close of the corresponding month.
CAPTURE FORMAT
The completion of subreport R03 J-0313 Investment Services (Securities Portfolios Custodied Abroad) will be carried out through the following format:
REQUESTED INFORMATION
SECTION
FORM IDENTIFIER
PERIOD REPORTED
ENTITY KEY
FORM KEY
CLIENT DATA SECTION
CLIENT IDENTIFICATION NUMBER
PERSON TYPE
CLIENT TYPE
CONTRACT DATA SECTION
STATUS
INVESTMENT SERVICE
DETERMINE IF INVESTMENT ADVISOR IS AVAILABLE
INVESTMENT ADVISOR
PORTFOLIO DATA SECTION
SECURITY CLASSIFICATION
TOTAL FAIR VALUE IN PESOS
R03 J-0314 Investment Services (Securities Portfolios - Financial Entities and Investment Advisors)
The regulatory subreport R03 J-0314 Investment Services (Securities Portfolios - Financial Entities and Investment Advisors) aims to collect from investment fund operating companies that provide securities portfolio administration services for third parties, from investment fund share distribution companies classified as reference-classifiers under the "General Provisions Applicable to Investment Funds and Persons Providing Services to Them," published in the Official Journal of the Federation on November 24, 2014, from Investment Advisors, including those referred to in Article 2, fractions I to V, as well as from the corresponding Financial Entities, information regarding the characteristics of clients and of the accounts on which investment services are provided and where they do not maintain custody of the securities.
The frequency for preparing and submitting this report must be quarterly, and the information included must correspond to the last day of the months of March, June, September, and December, and must be sent to the Commission within 25 natural days following the close of the corresponding month.
CAPTURE FORMAT
The completion of subreport R03 J-0314 Investment Services (Securities Portfolios - Financial Entities and Investment Advisors) will be carried out through the following format:
REQUESTED INFORMATION
SECTION
FORM IDENTIFIER
PERIOD REPORTED
ENTITY KEY OR INVESTMENT ADVISOR KEY
FORM KEY
CLIENT DATA SECTION
CLIENT IDENTIFICATION NUMBER
DATE OF BIRTH
PERSON TYPE
CLIENT TYPE
CONTRACT DATA SECTION
CONTRACT NUMBER
STATUS
TOTAL VALUE IN PESOS
INVESTMENT SERVICE
CONTRACT TYPE
OPENING DATE
CONTRACT NUMBER IN THE FINANCIAL ENTITY
FINANCIAL ENTITY KEY
R03 J-0315 Investment Services (Securities Portfolios Custodied Abroad - Investment Advisors)
The regulatory subreport R03 J-0315 Investment Services (Securities Portfolios Custodied Abroad - Investment Advisors) aims to collect from Investment Advisors information regarding the characteristics of clients, including those referred to in Article 2, fractions I to V of these provisions, as well as of the accounts and the composition of Securities portfolios, regarding those foreign securities not listed in the international quotation system of stock exchanges nor registered in the Registry, on which Investment Services are provided within national territory and which are custodied in other entities abroad.
The frequency for preparing and submitting this report must be semiannual, and the information included must correspond to the last day of the months of June and December, and must be sent to the Commission within 25 natural days following the close of the corresponding month.
CAPTURE FORMAT
The completion of subreport R03 J-0315 Investment Services (Securities Portfolios Custodied Abroad - Investment Advisors) will be carried out through the following format:
REQUESTED INFORMATION
SECTION
FORM IDENTIFIER
PERIOD REPORTED
INVESTMENT ADVISOR KEY
FORM KEY
CLIENT DATA SECTION
CLIENT IDENTIFICATION NUMBER
PERSON TYPE
CLIENT TYPE
CONTRACT DATA SECTION
STATUS
INVESTMENT SERVICE
FINANCIAL ENTITY KEY
PORTFOLIO DATA SECTION
SECURITY CLASSIFICATION
TOTAL FAIR VALUE IN PESOS
Financial Entities and Investment Advisors will report the information indicated in these forms, adhering to the characteristics and specifications for filling out and sending information published on the SITI or in the medium that the Commission makes known, if applicable.
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