SBS Resolution No. 01048-2023: Modification of the Regulations on Special Regimes and Liquidation of Financial System and Insurance System Companies

Lima, March 24, 2023

SBS Resolution
No. 01048-2023

The Superintendent of Banking, Insurance and Private Pension Fund Administrators

CONSIDERING:

That, Section One of the General Law of the Financial System and the Insurance System and Organic Law of the Superintendence of Banking and Insurance, Law No. 26702 and its amendments, hereinafter the General Law, regulates the supervision regime, intervention regime, and dissolution and liquidation of financial system companies authorized to capture public deposits, as well as those referred to in Article 7 of the aforementioned Law, and of the insurance system;

That, likewise, Section One of the General Law regulates the grounds for revocation of the operating authorization certificate for financial system companies not authorized to capture public deposits;

That, the General Law, in letter h) of numeral 2 of Article 95, establishes as an applicable ground for subjecting financial system companies authorized to capture public deposits, as well as those referred to in Article 7 of the aforementioned Law, to the supervision regime, the loss or reduction of more than 40% (forty percent) of effective equity, a percentage that was increased to 60% until March 31, 2023, for financial system companies included in numerals 1, 2, 3, 4, 5 and 7 of Literal A of Article 16 of the General Law through Urgency Decree No. 037-2021;

That, the General Law, in numeral 4 of Article 104, establishes as a ground for intervention of financial system companies authorized to capture public deposits, as well as those referred to in Article 7 of the aforementioned Law, or insurance companies, the loss or reduction of more than 50% (fifty percent) of effective equity in the last 12 months, a percentage that was increased to 80% until March 31, 2023, for financial system companies included in numerals 1, 2, 3, 4, 5 and 7 of Literal A of Article 16 of the General Law through Urgency Decree No. 037-2021;

That, the General Law, in numeral 2 of Article 28-A, establishes as a ground for revocation of the operating authorization certificate for financial system companies not authorized to capture public deposits, the loss or reduction of more than 50% (fifty percent) of effective equity in the last 12 months;

That, through SBS Resolution No. 455-99 and its amendments, the Regulations on Special Regimes and Liquidation of Financial System and Insurance System Companies were approved;

That, through Legislative Decree No. 1531, the General Law is modified to continue adapting the regulatory framework to the Basel III capital standard and subsequently the regulation is adapted to what is established in said Legislative Decree, regulating the structure of effective equity, as well as the elements that count and are deducted from the different sub-levels and levels of effective equity, according to the characteristics of each element;

That, the grounds for supervision, intervention, and revocation of the operating authorization certificate cited in the previous considerations, are not referred to a reduction of effective equity as a consequence of the application of regulatory changes, a situation that escapes the control of the companies;

That, the Second Final Complementary Provision of Legislative Decree No. 1531 empowers this Superintendence to establish, through general rules, the forms and deadlines for adaptation to comply with the modifications of Articles 184, 185, 199 and 233, as well as the incorporations of Articles 199-A and 199-B of the General Law;

That, for the aforementioned reasons, it is considered necessary to provide that for the determination of the ground for subjecting to the supervision regime contemplated in letter h) of numeral 2 of Article 95 and of the ground for intervention contemplated in numeral 4 of Article 104 of the General Law, for financial system companies authorized to capture public deposits, as well as for those referred to in Article 7 of the aforementioned Law, the reduction of effective equity that has occurred due to the deduction of the assets referred to in letters v, vi, and vii of letter h) of numeral 1.1 of Article 184 of the General Law, as well as the deduction of assets recognized for the difference between the fair value and the nominal value of the acquired credit portfolio, by application of Legislative Decree No. 1531, shall not be considered until December 31, 2023;

That, in keeping with what is stated in the previous consideration, it is considered necessary to provide that for the determination of the ground for revocation of the operating authorization certificate contemplated in numeral 2 of Article 28-A of the General Law, for financial system companies not authorized to capture public deposits, the reduction of effective equity that has occurred due to the deduction of the assets referred to in letters v, vi, and vii of letter h) of numeral 1.1 of Article 184 of the General Law, as well as the deduction of assets recognized for the difference between the fair value and the nominal value of the acquired credit portfolio, by application of Legislative Decree No. 1531, shall not be considered until December 31, 2023;

That, likewise, it is considered convenient to extend the suspension of the limits referred to in Article 185 of the General Law for the period between April 1, 2023, and June 30, 2023;

That, additionally, it is necessary to provide that excesses to the operational limits referred to in the General Law and the regulations issued by this Superintendence that have occurred subsequent to the execution of the operations that caused the excesses, due to the decrease in effective equity from the deduction of the assets referred to in letters v, vi, and vii of letter h) of numeral 1.1 of Article 184 of the General Law, as well as by the deduction of assets recognized for the difference between the fair value and the nominal value of the acquired credit portfolio, in the framework of Legislative Decree No. 1531, shall not be sanctionable, temporarily, provided that the company exceeds said excess within a period not exceeding December 31, 2023;

Being in accordance with the opinion of the Deputy Superintendencies of Banking and Microfinance, Risks, Economic Studies and Legal Advice, and;

In exercise of the powers conferred in numerals 7 and 9 of Article 349 of the General Law, and based on the exceptional conditions established in Article 14 of Supreme Decree No. 001-2009-JUS and its amendments;

RESOLVES:

Article First.- Incorporate as the tenth final provision of the Regulations on Special Regimes and Liquidation of Financial System and Insurance System Companies approved by SBS Resolution No. 455-99 and its amendments, the following:

“TENTH.- Determination of grounds by reduction of equity

For the determination of the ground for subjecting to the supervision regime contemplated in letter h) of numeral 2 of Article 95 and of the ground for intervention contemplated in numeral 4 of Article 104 of the General Law, for financial system companies authorized to capture public deposits, as well as for companies referred to in Article 7 of the same General Law, the reduction of effective equity originating from the deduction of the assets referred to in letters v, vi, and vii of letter h) of numeral 1.1 of Article 184 of the General Law, as well as the deduction of assets recognized for the difference between the fair value and the nominal value of the acquired credit portfolio, by application of Legislative Decree No. 1531, must not be considered until December 31, 2023.

Likewise, for the determination of the ground for revocation of the operating authorization certificate contemplated in numeral 2 of Article 28-A of the General Law, for financial system companies not authorized to capture public deposits, the reduction of effective equity originating from the deduction of the assets referred to in letters v, vi, and vii of letter h) of numeral 1.1 of Article 184 of the General Law, as well as the deduction of assets recognized for the difference between the fair value and the nominal value of the acquired credit portfolio, by application of Legislative Decree No. 1531, must not be considered until December 31, 2023.

This provision does not affect the calculation of effective equity reported through the Annexes and Reports sent to this Superintendence.”

Article Second.- Replace Article Four of SBS Resolution No. 3952-2022, with the following:

“Article Fourth.- The limits in the computation of effective equity referred to in Article 185 of the General Law, modified by Legislative Decree No. 1531, are suspended from January 1, 2023, to June 30, 2023, entering into effect from July 1, 2023.”

Article Third 1.- Excesses to the operational limits referred to in the General Law and the regulations issued by this Superintendence, that have occurred subsequent to the execution of the operations that caused the excesses, due to the decrease in effective equity from the deduction of the assets referred to in letters v, vi, and vii of letter h) of numeral 1.1 of Article 184 of the General Law, as well as by the deduction of assets recognized for the difference between the fair value and the nominal value of the acquired credit portfolio, in the framework of Legislative Decree No. 1531, shall not be sanctionable, temporarily, provided that said excess is overcome within a period not exceeding December 31, 2023, submitting an adjustment plan, to the satisfaction of this Superintendence. In these cases, companies may not increase their exposure until they are again within the legal limit. Likewise, in the determination of the grounds indicated in letters d) and e) of numeral 2 of Article 95 of the General Law, the excesses that arise from the causes indicated in this article are not considered.

Article Fourth.- This Resolution enters into effect from March 31, 2023.

Register, communicate and publish,

MARÍA DEL SOCORRO HEYSEN ZEGARRA
SUPERINTENDENT OF BANKING, INSURANCE AND AFP

1 Article replaced by SBS Resolution No. 02192-2023 published on 26/06/2023, effective from 30/06/2023.