Resolution SBS No. 3966-2018: Amending the Market Conduct Management Regulation, Investment Bank Regulation, Internal Audit Regulation, Credit and Debit Card Regulation, and Accounting Manual for Financial System Companies

Los Laureles Nº 214 - Lima 27 - Perú Telf. : (511) 6309000 Fax: (511) 6309239 Lima, October 11, 2018

Resolution S.B.S.
No. 3966 -2018

The Superintendent of Banks, Insurance and Private Pension Fund Administrators

CONSIDERING:

That, by Resolution SBS No. 3274-2017, the Market Conduct Management Regulation of the Financial System was approved, with the aim that companies have adequate market conduct management reflected in the practices they adopt in their relationship with users, in the offer of financial products and services, the transparency of information, and the management of complaints;

That, as a result of supervisory actions, it has been considered necessary to modify the Market Conduct Management Regulation of the Financial System with the aim of incorporating provisions and establishing clarifications that allow the development of the offer of financial products and services in a digital environment; as well as adapting the scope of the current regulatory framework considering the products and services offered by companies, their size and volume of operations;

That, likewise, it is necessary to modify the Internal Audit Regulation approved by Resolution SBS No. 11699-2008; as well as the Accounting Manual for Financial System Companies approved by Resolution SBS No. 895-98;

That, in order to collect users' opinions regarding the draft regulation, the draft resolution was pre-published on the Superintendence's electronic portal, under the provisions of Supreme Decree No. 001-2009-JUS;

Having the approval of the Deputy Superintendencies of Banking and Microfinance, Risks, Economic Studies, Legal Advisory, and Market Conduct and Financial Inclusion; and,

In exercise of the powers conferred by paragraphs 7 and 9 of Article 349 of the General Law of the Financial System and the Insurance System and the Organic Law of the Superintendence of Banking and Insurance, Law No. 26702 and its modifying norms;

Los Laureles Nº 214 - Lima 27 - Perú Telf. : (511) 6309000 Fax: (511) 6309239

RESOLVES:

Article First.- Modify the Market Conduct Management Regulation of the Financial System, approved by Resolution SBS No. 3274-2017, as indicated below:

1. Modify paragraph 9.2 of Article 9, paragraph 10.3 of Article 10, item 5 of paragraph 25.2 of Article 25, paragraph 32.1 of Article 32, item 1 of Article 36, paragraph 39.1 of Article 39, paragraph 41.6 of Article 41, item 2 of paragraph 49.1 and paragraphs 49.2 and 49.4 of Article 49, paragraph 52.1 of Article 52, paragraph 54.3 of Article 54 and items 5 and 10 of Annex No. 1-A, according to the following text:

“Article 9.- Responsibilities and functions of the market conduct officer (...)
9.2 The market conduct officer, for the proper fulfillment of their responsibilities and functions, must prepare an annual work program that must be submitted to the Board of Directors for prior consideration and must be approved by them before December 31 of each year. This program must contain the description of activities to be carried out, the objectives set for each of them, and a schedule for their execution. The Superintendence may request its submission by electronic means, according to the conditions established by multiple official notice.

Article 10.- Submission of management reports
(...)
10.3 Both reports must be brought to the knowledge of the company's Board of Directors and sent to the Superintendence. The method of submission is by physical means, unless the Superintendence, alternatively, requires submission by electronic means, according to the conditions established by multiple official notice.

Article 25. Information on active products
(...)
25.2 The summary sheet must contain the following information:
(...)
5. The amount and detail of commissions and expenses that are part of the active product. Charges that respond to user requests and are agreed upon on each occasion are not considered in this item, except those that are applied periodically (such as the cost for sending statements by physical means), regarding which it must be indicated that the related information is disseminated through the list or tariff schedule. Commissions must be presented in accordance with the categories and/or designations established. Regarding insurance, the type of insurance, the amount of the premium, the name of the insurance company issuing the policy, the risks covered, and the policy number, if applicable, must be reported.
(...)

Article 32.- Modification of fixed-term credits or fixed-term deposits
32.1 In fixed-term credit contracts or fixed-term deposit contracts, the agreed interest rate may only be modified in the following cases:

1. In fixed-term credit contracts: by novation of the obligation, considering for this purpose the provisions of the Civil Code.
2. In fixed-term deposit contracts: by renewal of the deposit, for which companies must previously communicate any variation in the agreed conditions, if these imply a detriment to the client. This communication must be made through the mechanisms indicated in item 2 of Article 36, before the maturity date of the deposit.
3. When there is effective negotiation, on each occasion when such modifications are intended to be made. It is understood that there is effective negotiation when it can be evidenced that the clause contemplating the possibility of modifying the interest rate does not constitute a mass condition that is part of the adhesion contract and conditions its signing; that is, when it can be evidenced that the user has influenced the content of the clause.
   (...)

Article 36. Communication means to be used
(...)

1. Companies must use direct communication means that allow for a record of the communication, such as communications by physical or electronic means, for contractual modifications referred to:
   (...)

Article 39.- Contractual resolution at the user's request
39.1 Companies must make available channels that are easy to access so that the user may exercise their right to resolve the contract, establishing as a minimum the same channels used to contract the financial product or service, without additional requirements or demands that hinder the exercise of said right. Companies must have available to the Superintendence the justification for the limitations existing in the channels used for contracting, in which the resolution of contracts is not permitted.
(...)

Los Laureles Nº 214 - Lima 27 - Perú Telf. : (511) 6309000 Fax: (511) 6309239

Article 41.- Resolution or modification by application of prudential norms
(...)
41.6 When information requests by government entities concern cases where the initiation, resolution, or modification of the contract is associated with the anti-money laundering regime, only the entity is communicated that the contracting, resolution, or modification were carried out in accordance with the provisions of Article 85 of the Code.

Article 49.- Contracting of financial products and services
49.1 In the contracting of financial products and services, the following must be considered:

1. The company must verify the client's identity and keep a record of the acceptance of the contract, which includes the summary sheet or information booklet, as well as any other information that corresponds.
2. For the celebration of the contract and during its execution, the company must use some authentication factor or a combination of them to carry out what is established in item 1, in accordance with the provisions of current regulations.
3. Authentication factors may be implemented, such as: physical or virtual devices in the client's possession, their handwritten signature, fingerprint, identification key, signature or digital certificate, biometric means, among others.
   49.2 Companies may determine that the contract, including the summary sheet or information booklet, as well as any other information that corresponds, be delivered and/or made available through any of the following means:
4. In the customer service offices of the companies.
5. At the address established by the client.
6. By sending or making the contract available by electronic means, provided that its reading, printing, conservation, and reproduction without changes are allowed.
   The means used by the company for the delivery and/or making available of the contract, in accordance with the provisions of the preceding item, must be informed to the user.
   If the contracting is celebrated in the customer service offices with the intervention of a company official, the client may request that the contract be delivered immediately.
   (...)
   49.4 Companies must prove the delivery to the client, by any means, of the number of the Superintendence resolution by which the general clauses corresponding to the contract celebrated were approved.

Los Laureles Nº 214 - Lima 27 - Perú Telf. : (511) 6309000 Fax: (511) 6309239

Article 52.- Dissemination of general contracting clauses and requirements applicable in front of imperative norms
52.1 Companies must disseminate, through their website, the contractual forms that have general contracting clauses previously approved by the Superintendence, indicating the number of the resolution by which they were approved.
(...)

Article 54.- Periodic information to clients
(...)
54.3 Clients may request that the information be sent through physical means (to the address indicated by the client), for which companies must make their service channels available to the client, considering as a minimum the customer service offices, the telephone line and/or the website, for the presentation of their request. Companies must prove said request, as well as the information delivered to the user regarding the charges applicable for the sending of information through this means.

ANNEX No. 1-A
CALCULATION OF THE EFFECTIVE ANNUAL COST (TCEA) FOR ACTIVE PRODUCTS UNDER THE REVOLVING SYSTEM (...)
5. Commissions and expenses applicable under the assumption of compliance with monthly installment payments, excluding from the calculation in all cases those corresponding to client requests (such as the cost for sending statements by physical means). In credit cards, the annual membership commission must be considered in installment No. 12.
(...)
10. Commissions and expenses applicable under the assumption of compliance with monthly installment payments, excluding from the calculation in all cases those corresponding to client requests (such as the cost for sending statements by physical means). In credit cards, the annual membership commission must be considered in installment No. 12.

2. Incorporate paragraph 50.7 of Article 50 and a Final and Transitional Provision, according to the following text:

Article 50.- General contracting clauses of prior administrative approval
“50.7 Contract annexes (including summary sheet and informational booklet) cannot be used to incorporate additional rights or obligations to those established in the general contracting clauses approved by the Superintendence, nor to modify the content of said clauses.”

Los Laureles Nº 214 - Lima 27 - Perú Telf. : (511) 6309000 Fax: (511) 6309239

Complementary Transitional Provision
“First.- For those clients who, before the entry into force of the Regulation, accessed the periodic information indicated in paragraph 54.1 by physical means, companies must make their service channels available, considering as a minimum the customer service offices, the telephone line and/or the website, so that clients communicate their email address and consent to the sending by said means and/or the making available by other electronic means of said information, in order to comply with what is established in paragraph 54.2 of the Regulation. Companies must keep a record of the communication made by the client.”

Article Second.- Modify the First Final and Complementary Provision of the Investment Bank Regulation, approved by Resolution SBS No. 3544-2015, as indicated below:

“First.- Other applicable regulations
In addition to those mentioned above in this Regulation, the following norms are applicable to investment banks, insofar as relevant considering the operations they are authorized to perform:

• Special Norms on Linkage and Economic Group, approved by Resolution SBS No. 5780-2015 or substitutes.
• Regulation on Subordinated Debt applicable to Financial System Companies, approved by Resolution SBS No. 975-2016 or substitutes.
• Regulation on the Calculation of Reserves, Profits and Capital-Representative Instruments in the Effective Equity of Financial System Companies, approved by Resolution SBS No. 4595-2009 and its modifying or substitute norms.
• Regulation for the Management of Country Risk, approved by Resolution SBS No. 7932-2015 or substitutes.
• Report on Risks from New Products or Important Changes in the Business, Operational or IT Environment, SBS Circular No. G-165-2012 and its modifying or substitute norms. Application of operational limits referred to in Articles 201 to 212 of the General Law – Circular No. B-2148-2005, F-0488-2005, S-0613-2005, CM-0335-2005, CR-0204-2005, EAF-0231-2005, EDPYME-0119-2005, FOGAPI-0026-2005 and their modifying or substitute norms.
• Internal and external evaluations of internal audit, approved by Circular G-161-2012,
• Business Continuity Management – SBS Circular No. G-139-2009 and its modifying or substitute norms.
• Information Security Management – SBS Circular No. G-140-2009 and its modifying or substitute norms.
• Regulation on the Management of Money Laundering and Terrorism Financing Risks, approved by Resolution SBS No. 2660-2015 and its modifying or substitute norms.
• Regulation on Sanctions approved by Resolution SBS No. 816-2005 and its modifying or substitute norms
• First Final Provision of the Regulation for the Consolidated Supervision of Financial and Mixed Conglomerates, approved by Resolution SBS No. 11823-2010 and its modifying norms, according to what the Superintendence indicates

Los Laureles Nº 214 - Lima 27 - Perú Telf. : (511) 6309000 Fax: (511) 6309239

• Regulation on Special Regimes and Liquidation of Financial System Companies and the Insurance System approved by Resolution SBS No. 455-99 and its modifying or substitute norms.
• Regulation on Opening, Conversion, Transfer or Closure of Offices and Use of Shared Premises, approved by Resolution SBS No. 4797-2015 or substitutes.
  The Superintendence may determine the application to investment banks of other norms and provisions issued by it.”

Article Third.- Modify the Internal Audit Regulation, approved by Resolution SBS No. 11699-2008 and its modifications, as indicated below:

Substitute item 2) of Article 19 Special Reports, according to the following:

“Article 19.- Special Reports
(...)
2) For the companies indicated in subsections I and IV of the attached annex, except Investment Banks, the evaluation of the functioning of the system for handling requests and complaints, as well as compliance with the provisions on market conduct management of the financial system, emphasizing:
a) Implementation of policies and procedures defined by the company, in accordance with the Market Conduct Principles on their business practices, information transparency, and complaint management. b) Criteria established by the company to ensure full transparency in the dissemination of interest rates, commissions, expenses, and other tariffs of active and passive operations performed, as well as their modifications. c) Timely compliance in the communication of modifications to interest rates, commissions, expenses, and other tariffs. d) Compliance with all aspects referred to in the market conduct management provisions of the financial system, regarding the information attached to contracts whose object is the performance of active and passive operations. The conclusions of said evaluation must be presented to the Superintendence through an annual special report. Said report will be presented within the timeframe established for the Annual Report of the Market Conduct Officer.”

Article Fourth.- Incorporate the Fifth Final and Transitional Provision to the Credit and Debit Card Regulation, approved by Resolution SBS No. 6523-2013, in accordance with the following:

“Fifth.- For those clients who, before the entry into force of Resolution SBS No. 3274-2017, accessed the periodic information indicated in Article 11 by physical means, companies must make all their service channels available so that clients communicate their email address and consent to the sending by said means and/or the making available by other electronic means of said information, in order to comply with what is established in Article 11 of the Regulation. Companies must keep a record of the communication made by the client.”

Los Laureles Nº 214 - Lima 27 - Perú Telf. : (511) 6309000 Fax: (511) 6309239

Article Fifth.- Modify item 1 and Complaint Report No. RR1 of Annex No. 2 of Circular G-184-2015, on the User Service, as indicated below:

“1. Scope
The provisions of the circular are applicable to the companies indicated in letters A, B, and D of Article 16, and in Article 17 of the General Law, to the Bank of the Nation, to the Fondo de Garantía para Préstamos a la Pequeña Industria Foundation (FOGAPI), to Derramas and Benefit Funds, the Regional or Provincial Associations of Funds against Traffic Accidents (AFOCAT), as well as to Private Pension Fund Administrators (AFP), hereinafter the companies.”

“ANNEX No. 2
Complaint Report No. RR1
INFORMATION ON COMPLAINTS RECEIVED FROM USERS

1. In this report, all complaints received during the quarter subject to reporting will be included, through the reception channels made available by the company directly or in association with the guild, with the exception of those applicable to the private pension system, as well as the current status of complaints reported as “in process” in the quarter prior to the reporting quarter. If the attention and resolution of a complaint is carried out within a fraction of one (1) day, it will be counted as a one (1) day attention period.
   (...)

Article Sixth.- Modify the Accounting Manual for Financial System Companies approved by Resolution SBS No. 895-98 and its modifying norms, according to the following:

1. Substitute in Chapters III Chart of Accounts and IV Description and Dynamics of Accounts, the denomination of subaccount 5202.30 “Credit cards” with “Commissions for additional credit card services”.
2. Incorporate the description of subaccount 5202.30 “Commissions for additional credit card services”, according to the following text:

5202.30 Commissions for additional credit card services
In this subaccount, commissions for additional services linked to credit cards contained in the Circular on Categories and Designations of Commissions are recorded, such as annual membership, physical statement delivery, ATM use, among others.

Los Laureles Nº 214 - Lima 27 - Perú Telf. : (511) 6309000 Fax: (511) 6309239

Article Seventh.- The modifications established in Articles First and Sixth have an adaptation period of 180 days from the publication of the Resolution.
The modification established in note 1) of Complaint Report No. RR1 will be applicable starting from the submission of statistics corresponding to the fourth quarter of 2018.

Article Eighth.- This Resolution enters into force from the day following its publication in the Official Newspaper El Peruano, except for what is established in Article Third, which enters into force starting from the audit corresponding to the 2019 fiscal year.

Register, communicate, and publish.

SOCORRO HEYSEN ZEGARRA
Superintendent of Banks, Insurance and Private Pension Fund Administrators