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Superintendent Resolution No. 002-2024-SMV/02

Lima, 10 January 2024

The Superintendent of the Securities Market

WHEREAS:

File No. 2021025721, Report No. 1354-2023-SMV/06 issued by the Legal Advisory Office, the written arguments and the oral report heard from Mr. Ernesto Javier Ferrand Salaverry (hereinafter, MR. FERRAND) through his attorney, held on 2 November 2023;

CONSIDERING:

That, by Deputy Superintendent Resolution SMV No. 035-2021-SMV/10 (hereinafter, the RESOLUTION), MR. FERRAND was sanctioned with a fine of thirty (30) UIT, equivalent to S/ 121,500.00 (One hundred twenty-one thousand five hundred and 00/100 Soles), for having incurred one (1) infraction of a very serious nature classified in Annex X, numeral 1, subsection 1.8 of the Sanctions Regulations, approved by CONASEV Resolution No. 055-2001-EF/94.10 (hereinafter, SANCTIONS REGULATIONS), in force at the time the facts occurred, for failing to comply with article 16A of the Securities Market Law, Legislative Decree No. 861 (hereinafter, LMV) and with the conduct rules established in article 3, numerals b), c), f) and g) of the Intermediation Agents Regulations, approved by SMV Resolution No. 034-2015-SMV/01 (hereinafter, RAI), by not observing its duties towards clients and the market, as well as the principles related to care and diligence, honesty and neutrality, observance and prevention of conflicts of interest with respect to investors in its capacity as representative of a stock brokerage firm;

That, by written submission presented by email at 23:49 on 30 September 2021 to the email address of the SMV's Document Processing Office, dated and entered into the reference file on 1 October 2021, MR. FERRAND files an appeal (hereinafter, the APPEAL) against the RESOLUTION;

That, Report No. 1548-2021-SMV/06 of 16 December 2021 recommended declaring the appeal filed inadmissible, in view of the fact that the filing date appearing in the file and appeal brief is 1 October 2022, one day after the mandatory deadline for filing the appeal had expired;

That, by written submission of 31 December 2021, MR. FERRAND presents written arguments to the report referred to in the preceding paragraph, stating that his appeal brief was submitted by email on 30 September 2021 at 23:49, and therefore would be within the legal term;

That, through Report No. 1354-2023-SMV/06 of 10 October 2023 (hereinafter, the REPORT), the Legal Advisory Office addressed the admissibility of the appeal as having been filed in a timely manner and issued an opinion on the substantive aspects;

That, on 2 November 2023, MR. FERRAND took the floor through his attorney and presented his written arguments;

That, below, the arguments contained in the APPEAL filed by MR. FERRAND, in the use of the floor and his written arguments, and the evaluation thereof are set out succinctly;

I. Application of the statute of limitations period

That, in the context of the health emergency caused by COVID-19, certain regulations with extraordinary measures were published that affected the computation of the terms applicable to the public administration; among these, Urgency Decree No. 029-2020 (hereinafter, DU), and its extensions1;

That, in relation thereto, MR. FERRAND states that he does not agree with the RESOLUTION when it states that the statute of limitations for the facts is also extended, which would constitute an extensive interpretation, through which the scope of a legal norm is extended to situations not expressly included in its text;

That, in the present case, MR. FERRAND refers to the extensive interpretation of a norm that extraordinarily suspends the computation of the terms for the initiation and processing of administrative sanctioning procedures and of any kind, and not of a norm that determines an infraction type, therefore, there is no congruence between his argument and the legal provision he cites;

That, with regard to what was argued by MR. FERRAND, it should be noted that the term for initiating the administrative sanctioning procedure is determined by the statute of limitations period for the authority's power to determine whether certain facts constitute or not an infraction, therefore what is stated by the RESOLUTION in grounds 81, 82 and 94 - cited by MR. FERRAND - is reasonable, since it is reasoning based on premises that allow arriving at a logical conclusion, and not an extensive interpretation of the norm, which departs from its true purpose;

That, MR. FERRAND makes a comparison between the text of article 28 of the DU and the following text of THE RESOLUTION: "Therefore, the referred norms provide for the extension of the computation of the term for initiating this administrative sanctioning procedure. Consequently, the statute of limitations for the facts that had 5 May 2021 as its limit is also extended", and He maintains that this would be the

[1] “Article 28.- Declare the suspension for thirty (30) business days counted from the day following the publication of this Urgency Decree, of the computation of the terms for the initiation and processing of administrative procedures and procedures of any kind, including those regulated by special laws and provisions, that are subject to a term, that are processed in entities of the Public Sector, and that are not included within the scope of the Second Final Complementary Provision of Urgency Decree No. 026-2020; including those that are in process at the entry into force of this Urgency Decree.”

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definition that the doctrine uses to explain the concept of “extensive interpretation”, however, this comparison does not fit with what the doctrine defines as extensive interpretation, besides the fact that the text of a norm is being compared with a fragment of the analysis carried out by the RESOLUTION on the defenses presented;

That, MR. FERRAND points out that the RESOLUTION considers that the statute of limitations is part of the administrative sanctioning procedure and that the legal rules established for these particular legal provisions apply to all administrative sanctioning procedures, without any exception, which does not mean that the statute of limitations is part of the sanctioning procedure, or a procedure in itself, or part of one, but rather it is a guarantee of the administered party against the punitive power of the administration:, which is constitutionally recognized;

That, in this regard, it can be observed that the statute of limitations referred to in article 252 of the TUO LPAG, besides being a guarantee, is a determining aspect within an administrative sanctioning procedure, since it sets the deadline for its initiation;

That, regarding the statement by MR. FERRAND about the existence of actions prior to the initiation of the administrative sanctioning procedure, and that these would not be part of the procedure, but rather preliminary inquiries, although this is correct according to numeral 2 of article 255 of the TUO LPAG, it must be remembered that, by virtue of these “prior actions”, the authority will decide whether or not to impute any charge, and initiate the procedure, and for this, as already mentioned, the administration has a maximum term, which corresponds to the statute of limitations period, so it is seen that, since the initiation of the sanctioning procedure is subject to the statute of limitations period, this was also suspended as provided by the DU;

That, MR. FERRAND points out that the initiation term of an administrative procedure depends on the type of procedure, and on whether it is a procedure initiated at the request of the administered party or ex officio, although as a general rule, in request procedures it would begin with the filing of an application in the Mesa de Partes or equivalent of an entity, the initiation term being automatic, since an application would be filed and the term would begin to count from that moment, and under normal situations this rule would have worked efficiently, but the COVID-19 emergency generated an interruption of said rule, due to the extraordinary and unforeseeable situation, which would have led to a scenario in which applications could continue to be filed by administered parties, but the entities were not in such operational capacity that would have allowed them to evaluate said applications, and therefore, the DU would have broken the rule of an automatic initiation term of administrative procedures, suspending it for as long as the emergency process lasts, and all applications that could have been filed did not generate an initiation and computation of the administrative term, but rather said effects remained suspended by virtue of the DU;

That, in this regard, it must be remembered that the administrative procedure subject of this analysis is an administrative sanctioning procedure, which, according to numeral 1 of article 255 of the TUO LPAG, is always initiated ex officio, either on its own initiative or as a consequence of a superior order, motivated request of other organs or entities, or by complaint;

That, regarding the lack of pronouncement issued by a constitutional organ that supports the argument of MR. FERRAND and the interpretation of the SASP, he points out that the SASP indicates, in recitals 84 and 85 of THE RESOLUTION, that the argument and analysis carried out in its allegations would constitute a legal interpretation that has not been supported by any constitutional organ and its analysis is the result of a systematic reading of the applicable norms and not of an illegal interpretation

That, in this regard, it must be observed that ground 842 of the RESOLUTION does not contain what is referred to by MR. FERRAND, and what it states, in reality, are the dates of facts and actions to determine whether the four (4) years were exceeded for the statute of limitations of the SMV's power to determine whether an infraction was committed; for its part, ground 85 of the RESOLUTION does not state whether the opinion was or was not supported by a constitutional organ, in fact it only refers that MR. FERRAND makes a “legal interpretation”, without qualifying it as pertinent or not. Thus, it is also not observed that he is prevented from carrying out an analysis or interpretation of the norms, nor is his right of defense deprived;

That, Mr. FERRAND maintains that the interpretation made by the SASP would not have been endorsed or supported by any constitutional body, and that it should not make an authentic interpretation, which would not be legal and would harm his right of defense;

That, on this matter, we do not find an authentic interpretation of the norm as referred to by Mr. FERRAND, but rather only the application of the norm to the present case is observed;

That, regarding the principle of legality and retroactivity as to prescription, Mr. FERRAND indicates that administrative sanctioning prescription would be a legal institution that limits the power of the public administration to determine infractions or execute final sanctions;

[2] “84. Thus we have that the facts subject to imputation of charges occurred on 5 May 2017; from 21 March to 10 June 2020 inclusive, according to the Emergency Decrees and Supreme Decree mentioned above, the prescriptive period was suspended; on 11 June 2020 said period was restarted until 5 July 2021, the date on which the OFFICIO DE CARGOS was notified to Mr. FERRAND; with the notification of the oficio de cargos the prescriptive period was suspended and this suspension was maintained during the presentation of the discharges by Mr. FERRAND occurred on 14 July 2021 and this suspension only resumes if after these acts, the processing of the file remained paralyzed for more than 25 business days for a cause not attributable to the administered. Consequently; it is observed that at the date of presentation of the discharges of Mr. FERRAND, the four-year period in which this Superintendence can determine the existence of infraction by Mr. FERRAND was not reached, rendering such request unfounded;”

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That, in this regard, article 252 of the TUO LPAG refers in subsection 252.1 to the following: “The power of the authority to determine the existence of administrative infractions prescribes in the period established by special laws, without prejudice to the computation of prescription periods with respect to the other obligations derived from the effects of the commission of the infraction. If this has not been determined, said power of the authority shall prescribe in four (4) years”, therefore, as Mr. FERRAND points out, prescription limits the sanctioning power of the administration; however, this does not mean that the only function, implications or scope of this are limited to said aspect;

That, Mr. FERRAND adds that the suspension or interruption of the computation of the prescription period of infractions and sanctions should necessarily be expressly recognized in a norm with a rank identical to that which conferred the power to the administrative authority to pursue infractions and execute sanctions;

That, in this regard, the DU that provides for the suspension of the computation of the period for the initiation and processing of all administrative procedures and of any nature has the rank of law, so it is applicable to the computation of the prescription period of this procedure from the perspective of the principle of legality, referred to by Mr. FERRAND;

That, Mr. FERRAND indicates that the principle of non-retroactivity of norms applies to administrative sanctioning prescription, so, considering that its suspension would cause the computation of the period established in the norm to be exceeded and this would affect the legal situation of the administered, the retroactivity of the norm that provides for said suspension would not be applicable;

That, on this matter, it must be taken into account that the DU does not modify or repeal norms on prescription, that is, a new legal provision that may or may not be more favorable to the alleged offender is not being issued, but rather it provides an exceptional mandate of suspension of the computation of periods, which also did not have as its purpose, nor could it, be prolonged in time, and must be subject to the effects of the exceptional and unforeseeable event that gave rise to it, that is, the health emergency as a consequence of the appearance of COVID-19;

That, thus, the explanatory memorandum of the referred DU expressly mentions it in “Requirement f): on its transience”, when it indicates: “In this case it is required that the extraordinary measures applied must not remain in force for a time greater than strictly necessary to reverse the adverse situation”;

That, regarding what was stated by Mr. FERRAND about the Spanish experience, in which the computation of the prescription period would have been suspended through a norm with the rank of law, which would not apply retroactively to facts prior to its entry into force, it must be indicated that this cannot be taken into account because it is a different legal system;

That, in relation to Resolution No. 001-2020/SERVIR/TSC (hereinafter, SERVIR RESOLUTION), Mr. FERRAND indicates that the SASP took it as a reference to establish that it would be aimed at ratifying that it is not a particular situation of the SMV, but rather at determining that the suspension of periods provided by the DU was understood in its entirety by other public entities;

That, in this regard, it is observed that the RESOLUCIÓN does not assume RESOLUCIÓN SERVIR as a binding precedent, but rather, in response to the SEÑOR FERRAND's defense regarding what was stated in the instruction report, analyzes whether it is indeed as he maintains; likewise, it mentions in its ground 164 that “…the inadmissibility of the request for prescription by señor FERRAND is based on the simple verification of the prescription period observing the applicable regulations and not on Resolution No. 001-2020-SERVIR/TSC”;

That, SEÑOR FERRAND specifies that the SMV would not have had a total stoppage of work, as did other entities linked to the financial sector, which continued operating since the work they performed was considered essential and they had the appropriate systems to do so, especially if this had been recognized by Superintendente Resolution No. 046-2020-SMV/02, published in May 2020;

That, in this regard, it should be specified that it is true that certain entities in the financial sector had to develop a contingency plan in order to continue operating in certain essential functions; however, this does not imply that all these institutions immediately had the possibility of fully deploying all their activities, and that all their personnel were enabled to, for example, carry out audit, investigation, supervision activities, among others, within the framework of the declared state of emergency, which entailed mandatory social immobilization, and thus, this mandatory social immobilization, which in the face of the global health emergency, was reasonable to establish without any prior notice, meant that there was no entity or State body, as is the case of the SMV, that could operate at one hundred percent of its capacities;

That, notwithstanding the foregoing, there is the counterpart, that is, the administered parties, and in the event that the entity had been able to act in accordance with its functions and at one hundred percent of its capacities, the administered parties did not necessarily have the same capacity to respond and address possible requirements or imputations that the administration might have made, therefore, the provision suspending the computation of the deadlines for the initiation and processing of all administrative and any other proceedings is reasonable and clear;

That, SEÑOR FERRAND adds that prescription seeks to protect the administered party from the passage of time, since it harms the capacity for defense, because, after four (4) years, without having any prior notice, he learned that past acts generated an alleged infraction, the same that occurred when he worked for another employer, so that, when trying to exercise his defense, he is limited by difficulties in accessing information, remembering events, finding those involved, among others;

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That, in this regard, as can be seen from the file, the facts that support this administrative sanctioning procedure were those that led to the departure of MR. FERRAND from Credicorp Capital Sociedad Agente de Bolsa S.A. (hereinafter, Credicorp SAB), and notwithstanding this, in this procedure he has had the possibility of exercising his defense, without any restriction, being able to access the content of the file and make his arguments in accordance with law;

That, MR. FERRAND states that in this case the intention would be to give priority to the sanctioning power over legal certainty, setting aside the principle of reasonableness that is also recognized by the LPAG;

That, in this regard, it should be remembered that the sanctioning power, in addition to being a prerogative, is a duty attributed to the administration, seeking that actions that violate legal precepts be sanctioned;

That, likewise, in accordance with the preceding recitals, it is not apparent in what way the principle of reasonableness would be violated by the RESOLUTION;

That, MR. FERRAND states that, through SBS Resolution No. 1268-2020, it is expressly stated that the terms were suspended, including the statute of limitations period, with which said administration would protect the legal certainty of the administered, this being the only valid way to generate a suspension of the statute of limitations period. He also states that the Judicial Branch would have expressly suspended the computation of the statute of limitations period through Administrative Resolution No. 177-2020-CE-P;

That, he adds that the principles of criminal law that inspire and guide those of the administrative sanctioning procedure would require an express rule by the SMV, in order to suspend the statute of limitations period, without affecting the principle of legal certainty, and so that the SMV's interpretation does not result in an arbitrary and indiscriminate application of the rule;

That, in the two cases referred to by MR. FERRAND, it is observed that they are rules that do not have the rank of law, so that, in light of the arguments of MR. FERRAND himself, they should have such rank in order to be empowered to issue such provisions. Notwithstanding this, it should be noted that SBS Resolution No. 1268-2020 does not expressly state that “the terms are suspended including the statute of limitations period”;

That, for its part, Administrative Resolution No. 177-2020-CE-P in its first article expressly states “To specify that the suspension of procedural terms established by the Executive Council of the Judicial Branch…, includes the suspension of statute of limitations and expiration periods;…” (underlining added), and does not provide that they be suspended. Consequently, it is also not found that said resolution was issued to comply with the purpose raised by MR. FERRAND;

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II. Nullity of the RESOLUTION, lack of motivation and failure to act on relevant evidence

That, MR. FERRAND denies that they accepted the commission of the facts (as stated in the RESOLUTION) and specifies that the SASP would not have conducted an investigation of the internal procedure or of his defenses and those of Mrs. Karla Lucia Aoki Kutsuma (hereinafter, Mrs. Aoki), so what was stated by Credicorp SAB would have been taken as true, without carrying out evidence of what was stated by the latter, which would not only violate due process, but also harm his right of defense;

That, in this regard, although the reference in the RESOLUTION that MR. FERRAND expressly admitted the commission of the facts is not correct, this does not invalidate the SASP's verification of the commission of the infraction through other means of evidence;

That, furthermore, what is stated in the RESOLUTION in the paragraphs preceding the citation made by MR. FERRAND is relevant:

That, as observed in the RESOLUTION, it is not only taking into account the statement of Credicorp SAB, as already mentioned, but it is evaluating other means of evidence, such as the audios of the calls, the detail of the sale of the bonds and the purchases of these, made by Mrs. Aoki, Mrs. Yong, Mr. Recarte and Mrs. Salaverry, mother of MR. FERRAND, in addition to the sell order of Mrs. Alfaro, and the purchase order of Mrs. Salaverry;

That, on the other hand, MR. FERRAND indicates that in recitals 195 to 204 of the RESOLUTION it is stated that he had access to the file, to divert attention from his request for the documents that support the compensation to Mrs. Alfaro, and that although in the letters sent by Credicorp SAB the compensation is indicated and the proof of payment to Mrs. Alfaro for four hundred twenty-six and 24/100 US Dollars (US$ 426.24) is attached, the documents supporting said payment would not be found, information that the brokerage firm

should have in its possession, and that furthermore, in its arguments it requested they be required from Credicorp SAB;

That, in this regard, it is observed that the grounds of the RESOLUTION cited by MR. FERRAND do not focus on stating that he always had access to the file to try to divert attention, which is seen from the RESOLUTION in its grounds 197 and 198:

That, that is, the RESOLUTION specifies how it becomes aware of the referred compensation, why it is made and the evidence of it, which is the proof of payment that the brokerage firm made in favor of Mrs. Alfaro - which MR. FERRAND himself refers to in the preceding paragraphs - and which is in the file, so MR. FERRAND's statement that there would be no documents supporting said payment is not true;

That, it must be kept in mind that the fact that for MR. FERRAND a certain document is not sufficient to support the payment does not invalidate what it objectively represents or what can be verified from it, that is, the compensation made by his employer to the person affected by his conduct and that of Mrs. Aoki;

That, MR. FERRAND states that in the STATEMENT OF CHARGES the generation of the compensation is not explained, which would be an important part in the analysis carried out in the instruction report to explain the economic damage caused and the repercussion in the market, which would then also be taken by the SASP to base the infraction and its sanction;

That, on this, the provisions on the administrative sanctioning procedure established in article 2553 of the

[3] “Article 255.- Sanctioning procedure Entities in the exercise of their sanctioning power adhere to the following provisions: (…) 3. Once the initiation of the sanctioning procedure is decided, the instructing authority of the procedure formulates the respective notification of charges to the possible sanctioned party, which must contain the data referred to in numeral 3 of the preceding article so that they present their defenses in writing within a period that cannot be less than five business days counted from the date of notification. (…) 5. Once the collection of evidence is concluded, if applicable, the instructing authority of the procedure concludes by determining the existence of an infraction and, therefore, the imposition of a sanction; or the non-existence of infraction. The instructing authority formulates a final instruction report in which it determines, in a motivated manner, the conducts considered proven constituting infraction, the norm that provides for the imposition of sanction; and, the proposed sanction or the declaration of non-existence of infraction, as appropriate.

TUO LPAG, in which different moments can be seen within the sanctioning procedure, with differentiated stages within the procedure, with different elements that characterize them and that fulfill a specific purpose for each case, so that intending for the OFICIO DE CARGOS to develop the same elements as the instruction report or the RESOLUCIÓN, is contrary to the nature of the procedure itself and the provisions that govern it;

That, furthermore, SEÑOR FERRAND argues that the instructor never requested the statements of the allegedly affected persons, a fact that would have been key to analyzing the commission of the infraction and to determining the moment at which the orders were concretized;

That, on this matter, it is observed that, indeed, the statements of señores Alfaro, Yong and Recarte were not requested; however, this office does not consider that these are key for the analysis of the commission of the infraction, as SEÑOR FERRAND indicates, since, as previously stated, other means of proof are appreciated in the file that contribute to the identification of the commission of the infraction, and it must be reiterated that among these are the recordings of the conversations held between señora Aoki, señora Yong, señor Recarte and SEÑOR FERRAND, and from these the facts that have generated this sanctioning procedure are extracted, in addition to the results of the purchase and sale of bonds, which confirm the improper conduct of SEÑOR FERRAND;

That, he adds that, by the instructor not fulfilling his function of generating sufficient evidence that motivates the RESOLUCIÓN, it would generate its nullity, since it would leave him in a state of defenselessness by not having broken the presumption of lawfulness, attacking due process, even more so if the supposed affected parties expressly recognize that the infraction would not have been committed, as would be appreciated from the sworn statements attached as annex 1 to the appeal brief;

That, in this regard, as already mentioned, the fact that the instructor does not request the evidence that in the opinion of SEÑOR FERRAND should be requested, does not imply per se that evidence has not been generated in the sanctioning procedure, that is sufficient to break the presumption of lawfulness;

That, regarding the statements of the spouses, señora Yong and señor Recarte, it is observed that they state that the first call held between señora Aoki and señora Yong was only a negotiation, however, from the content of the recordings that are in the file of this administrative sanctioning procedure, it could not be affirmed that it is only a negotiation;

That, likewise, SEÑOR FERRAND refers that señora Yong did not have power to intervene in representation of her husband, as well as that they did not have a joint securities brokerage account, however, from the first audio it is not appreciated that these elements are an obstacle to the taking of the order, which is also confirmed with the recording of the second call;

[…] (…)” (underline added)

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That, SEÑOR FERRAND points out that the Yong-Recarte spouses also refer that no harm has been generated to them and that señora Aoki would have performed her duties with care, diligence and honesty, however, without prejudice to the fact that señora Aoki is not a party to this procedure, it must be kept in mind that the Yong-Recarte spouses are not the only persons who could have been harmed by the actions of SEÑOR FERRAND and señora Aoki, but rather, as the RESOLUCIÓN refers: “the infraction incurred by señor FERRAND has produced a concrete quantifiable harm for the client señora ALFARO”, since she did not receive the price of 106.57% that señora Yong had accepted in the first call, but rather received the price of 105.8596%, which finally also benefited the aforementioned señora Aoki and the mother of SEÑOR FERRAND, by having acquired ten (10) bonds at said price, to the detriment of señora Alfaro;

That, in this regard, what is stated in the RESOLUCIÓN must also be appreciated, regarding the price of the bonds acquired by the mother of SEÑOR FERRAND and señora Aoki:

“It must be indicated that during the month of May 2017, in the Money Market – Stock Exchange, in addition to the operation subject to charge, 5 additional operations were carried out with PACIF1BS1A; observing that of the 6 operations, the one of 05 May 2017 is the one that was executed at the lowest price, below the trend observed during said month. Likewise, the fact must be highlighted that the price at which the operation was originally going to be carried out, that is 106.57%, was a price in accordance with what the market quoted said value previously, that is 106.58% for an operation of 03 May 2017 and during April 2017 the average price at which the operations were executed was 106.6267%4; however, as previously indicated, the operation was finally carried out at 105.8596%; as observed in the following graph5;”

That, in that sense, it is observed that the person linked to SEÑOR FERRAND, that is, his mother, as well as señora Aoki, were benefited with the purchase, when señora Yong had already accepted the purchase for the totality of the bonds in favor of herself and her spouse;

III. Evaluation of substantive arguments set forth in the RESOLUCIÓN

Que, con relación a la afirmación del SEÑOR FERRAND respecto a que el órgano instructor no ha cumplido con realizar las corroboraciones respectivas para determinar si existió o no una orden en el audio de la primera conversación que tuvo la señora Yong con la señora Aoki, debe tenerse en cuenta que las grabaciones de las llamadas evidencian que la señora Aoki conoce de la voluntad de la señora Yong de comprar la totalidad de los bonos ofrecidos, ya que lo expresado por esta última es claro y no requiere de ningún tipo de interpretación; por ello, no resulta necesario realizar las corroboraciones adicionales que menciona el SEÑOR FERRAND;

Que, por otra parte, en la declaración de la señora Yong anexada al escrito de apelación, ésta manifiesta “que la primera llamada (…) fue

[4] Durante el 2017, las operaciones empezaron el año con operaciones que se ejecutaron a 103.85%; mostrando el precio una evolución favorable, así el precio de la última operación ejecutada en marzo 2017 fue 105.20% y la de abril 107.33%.

[5] En cada fecha se realizó una sola operación. Source: CAVALI – BVL – Credicorp SAB.

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“only a negotiation, it being my understanding and my will that no transaction be concluded during the said call, as indeed occurred”, however, from the content of the recordings it is evident that this does not correspond to the reality of the facts;

That, Mr. FERRAND states that the RESOLUTION in its finding 231 indicates that “(…) at no time during the first conversation, Ms. AOKI tells Ms. YONG that the latter cannot decide for her husband, because she does not have the authority to do so, they do not have a joint account (…)”, and that “(…) in the case of clients who are spouses, the amount to be purchased by each of them was to be specified immediately in the conversation and thus would be recorded and registered in the “Negotiation System” of CREDICORP SAB”, and that regarding this, the SASP would not have carried out any legal analysis on representation between spouses, when it is clear that for acts of disposal consent is required, which would not be evidenced from the first call with Ms. Yong, until Mr. Recarte enters the last conversation to express his intention to purchase;

That, in this regard, it is not considered that a legal analysis was necessary as to whether there was representation of one spouse with respect to the other, as stated in the citation made by Mr. FERRAND, since in the first conversation held between Ms. Aoki and Ms. Yong it does not appear to be an issue that could hinder the fulfillment of Ms. Yong's intention, which can be confirmed from the second conversation, in which Mr. Recarte intervenes without hesitation in the call to ratify what had already been established by his spouse;

That, likewise, it must be remembered that, in the first conversation, Ms. Aoki only interrupts the conversation with Ms. Yong due to an apparent operational problem, which ultimately leads her to the conversation with Mr. FERRAND, and as a result, she tells Ms. Yong that she will call her back so as not to leave her waiting;

That, Mr. FERRAND adds that the investigating body states that “the spouses had a joint bank account registered in CREDICORP SAB, to such an extent that it charges Mr. RECARTE's purchase to the joint bank account” and specifies that the spouses would not have a joint securities intermediation account registered in Credicorp SAB to carry out securities transactions, and that there would be no document to prove it, and what can be inferred from the conversation is that the spouses have a joint bank account and the lack of representation of Ms. Yong, nor does she have authorization to generate orders in her husband's name, which could be corroborated with the statement in Annex 1 of the appeal brief, which is why Ms. Yong's and her husband's intermediation contract should have been requested, to rule out or corroborate that there was representation;

That, regarding this, the RESOLUTION refers to a joint bank account, and not to a joint securities intermediation account, which, as the SASP points out, is extracted from the recordings of the second conversation, nor is it observed that the RESOLUTION is asserting that there is representation between the spouses, so, in line with what was maintained by Mr. FERRAND, it would not have been necessary to request their intermediation contract;

That, Mr. FERRAND indicates that the RESOLUTION states that “Mr. Ferrand did have access, as of the date the events occurred, to the trading screens, so he could see market prices”, which would be based on Office No. 1125-2014-SMV/10.2, which authorized Mr. FERRAND as representative of Credicorp SAB to “participate in the stages of the intermediation process relating to the receipt and registration of orders on behalf of third parties, as well as the transmission and execution of orders on behalf of third parties, so given that he could participate in the execution of orders on behalf of third parties, then he participated in the operational procedures that the manual assigns to the sales desk trader; consequently, Mr. FERRAND had access, as of the date the events occurred, to the trading screens, so he could see market prices”;

That, he adds that he would not have had access to the aforementioned Communication cited by the SASP, which would limit his right of defense, and that the fact of having authorization to perform several functions would not necessarily mean in practice that he performs them or that he is internally authorized to perform them, so it cannot be presumed that, by having authorization, he had access to the negotiation screens, even more so when there would be no evidence of the functions or responsibilities that he and Ms. Aoki had on that date, which could have been requested from Credicorp SAB in a timely manner;

That, in this regard, it is noted that it has not been proven that it was MR. FERRAND who changed the price offered by Ms. Aoki, but rather that she herself is the one who makes such change, in addition, it is observed that, with the modification in the price, Ms. Aoki and the mother of MR. FERRAND are benefited, and to the detriment of Ms. Alfaro;

That, without prejudice to the foregoing, what is stated by the RESOLUTION should be taken into account when it specifies: “following what the manual6 indicates, they carried out the process of contacting counterparties who want to buy the securities, so the procedure used was to negotiate with both parties the required conditions in order to reach an agreement and define the price and the rate in order to close the transaction; therefore, the manual does not indicate that the price is set or modified by the Fixed Income Manager, Sales Desk Trader or any other specific area or position (…)”;

That, on the other hand, regarding Letter N° 1125-2021-SMV/10.2, although we agree with MR. FERRAND in that it is not part of the file of this proceeding, in said communication he is authorized as representative of Credicorp SAB, that being the sole purpose of such document; therefore, it cannot be asserted that not having access to it may determine a limitation to his right of defense;

Que, Mr. FERRAND indicates that, according to the SASP, the conclusive evidence to determine the infringement is the order log of the Credicorp SAB system, so that, if we rely solely on this log, it would not be clear how he would have coordinated with Ms. Aoki for the buy order, whether said orders, except this one, preceded the sell order, or how Mr. FERRAND and Ms. Aoki would have known that there was a sell order and what its

[6] Credicorp SAB Operating Procedures Manual

characteristics were, being necessary and indispensable to substantiate the version of the SASP, that is, to prove that the coordination took place, the time and day of the audios sent by Credicorp SAB, of which there would have been no record or evidence;

That, in this regard, it is not observed that the RESOLUCIÓN has adhered solely to the aforementioned record, much less that it has qualified it as “reliable evidence” to determine the infraction, as MR. FERRAND claims; it is observed in the RESOLUCIÓN that the conversations held between Mrs. Aoki and Mrs. Yong are taken into account, as well as the one in which MR. FERRAND intervenes, which is finally reflected in the aforementioned operations record; thus, what the SASP states must be appreciated when it refers that: “According to what Mr. FERRAND himself indicated in his arguments, the practice at CREDICORP SAB was to enter orders into the system only when there was a buyer; that is why the times of the orders appearing in the CREDICORP SAB records are the times that were registered in the “Trading System” of CREDICORP SAB so that the “Sales Desk Traders” place the corresponding proposals in the BVL system”, that is, that the same explanation given by MR. FERRAND allows a correct appreciation of what the operations record shows, and in turn, responds to the questions raised by it in the preceding recitals;

That, MR. FERRAND states that the SASP concludes, in recitals 250 and 251, that there is an infraction on the part of MR. FERRAND and Mrs. Aoki based on the statement made by Credicorp SAB, without having corroborated the statements of the latter nor having acted evidence to determine the alleged infraction committed, especially if it were considered that there is a conflict of interest between the accused and Credicorp SAB;

That, on this, it is important to observe that ground 250 of the RESOLUCIÓN begins by referring the following: “From the information provided by CREDICORP SAB, it is evident that this stock brokerage company states the following (…)” (underlining and highlighting added). As can be seen, the RESOLUCIÓN is only listing what the brokerage company indicated, without issuing judgment; and in the following ground, cited by MR. FERRAND, it adds “all of the foregoing has been stated in the instructing report and on those facts and on the others indicated in this resolution is based the determination of the infraction committed by Mrs. AOKI and Mr. FERRAND” (underlining and highlighting added); that is, although what was stated by Credicorp SAB has been taken into account to determine the infraction, it is also true that they are not the only elements on which the RESOLUCIÓN is based to reach the decision taken; therefore, it is not appropriate to take as true what MR. FERRAND states regarding that “the only evidence and motivation” that could be observed throughout the RESOLUCIÓN would be based on the statement made by Credicorp SAB;

That, Mr. FERRAND points out that in recital 260 of the RESOLUTION it is mentioned that “Mr. FERRAND violated the conduct rule of care and diligence because he did not take care of the best interest of his client Mrs. ALFARO and did not carry out the best execution for her, which meant that her 60 bonds be sold at the price of 106.57%”; and that he did not set said price, and the order was sent to him through Mrs. Alfaro's direct “banker” and that he would only be in charge of executing the order with the information he received; he adds that on

this the instructing body would not have ruled, would not have requested any evidence from Credicorp SAB by which it can be verified that Mr. FERRAND breached his duty of diligence, being only an executor of the order received, which would also have been requested at the oral hearing;

That, in this regard, it is noted that, had Mr. FERRAND not intervened, the transaction would have been closed with Mrs. Yong and Mr. Recarte at a price of 106.57% and with respect to the 60 bonds offered for sale;

That, regarding the setting of the sale price of the bonds, it has already been referred to in the preceding paragraphs; notwithstanding this, it must be noted that from the Manual of Organization and Functions and the Manual of Operating Procedures of Credicorp SAB, both dated 27 December 2016, in force at the date the events occurred, as stated in the RESOLUTION, “no responsibility, specific function and operating procedure is found related to prices being set and modified by a determined area or person and these being displayed in some internal system and serving as a reference for the Representatives in charge of offering the securities to interested clients”; this is also consistent with the SASP in that what is reasonable is that each of the representatives modifies the prices at the time they are offered to different clients, as is the case of Mrs. Aoki;

That, Mr. FERRAND states that the instructing body makes an assertion that would be one of the important pillars for sanctioning the administered party, stating that “Mr. FERRAND violated the conduct rules of honesty and neutrality, because by his act he did not maintain neutrality in his performance and granted a privilege to his mother so that she could instruct her purchase order for 5 bonds, which was discussed and agreed with Mrs. AOKI, when they already knew that Mrs. YONG's decision was to buy all of the 60 bonds offered for sale”.

That, Mr. FERRAND adds that said assertion has not been proven by the instructing body, since in the conversation that he and Mrs. Aoki had, it is not heard that “Mrs. YONG's decision was to buy all of the 60 bonds” is transmitted, and as can be heard in the audio presented by Credicorp SAB, Mr. FERRAND would refer to “5 thousand dollars” and “Reserved”, but it would not be heard in any conversation that he was aware of the order that Mrs. Yong transmitted to Mrs. Aoki;

That, in this regard, in addition to the words that Mr. FERRAND refers to in the preceding recital, it is important to listen to the audio in its entirety and the voices of the participants

That, as can be seen, in the second conversation, Mrs. Aoki tells Mrs. Yong “... Miguel's matter has already been arranged here in the system, but Ernesto7 beat me by a hand's throw, and now I have 50 K available, so, if you want it can be thirty (30) you and twenty (20) Miguel8 …”, and adds “And he sends you many greetings…”, also stating “the positive part is that since we have adjusted the size9

[7] THE APPELLANT 8

[8] Mr. Recarte

[9] English phrase that refers to size. In the present case it refers to the fact that the sale of bonds is varying in quantity, from 60 to 50.

we have improved the rate level for you”; as can be seen, in addition to the conversation that Mr. FERRAND holds with Mrs. Aoki, from the second call between Mrs. Aoki and Mrs. Yong, cited in the preceding lines, it is noted that there is indeed knowledge on the part of Mr. FERRAND of what was agreed with Mrs. Yong, aside from the fact that ultimately it is Mr. FERRAND's mother who acquires 5 of the 60 bonds;

IV. On the type of infraction

That, Mr. FERRAND states that the SASP concludes that he incurred one (1) infraction classified as very serious, typified in Annex X, numeral 1, subsection 1.8 of the SANCTIONS REGULATIONS; however, since the SANCTIONS REGULATIONS was not in force at the date of the sanction, it would qualify as a serious infraction in Annex I, numeral 2, subsection 2.25 of the Sanctions Regulations in force, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, CURRENT SANCTIONS REGULATIONS);

That, in this regard, the application of the CURRENT SANCTIONS REGULATIONS to the present case is not the result of the SANCTIONS REGULATIONS not being in force at the date of the sanction, but, as stated in the RESOLUTION, is due to the application of the exception to the principle of non-retroactivity10, in view of the fact that it is more favorable to the administered party that the infraction in the CURRENT SANCTIONS REGULATIONS be established as serious, and not very serious as in the SANCTIONS REGULATIONS;

That, MR. FERRAND adds that the infraction type would be explicitly open, and to specify which are the rules of conduct that were infringed, the SASP would have had to cite not only article 16A of the LMV, but also subparagraphs b), c), f) and g)11 of the RAI, clearly carrying out an extensive interpretation;

That, the reference to the LMV and the RAI does not constitute an extensive interpretation, but rather these rules previously determine the obligations that the representative of a stock brokerage firm must observe and comply with regarding its clients, and thus, in the present case they are specifically referred to in article 16-A of the LMV12 and to the following general rules of conduct set out in article 3 of the RAI in its subparagraphs: b) Care and Diligence, c) Honesty and Neutrality, f) Observance of the rules that regulate its activities, and g) Prevention of Conflicts of Interest, which, it is noted, were developed in the RESOLUTION, and therefore it is also not accurate to state that it has been established as

[10] TUO LPAG Article 248 5.- Non-retroactivity.- The sanctioning provisions in force at the time the administered party engages in the conduct to be sanctioned are applicable, unless subsequent ones are more favorable to it. Sanctioning provisions have retroactive effect insofar as they favor the presumed offender or the offender, both regarding the classification of the infraction and the sanction and its prescription periods, including with respect to sanctions in execution when the new provision enters into force 11 Does not specify the article. Given the present case, it should be referring to article 3 of the RAI 12 According to the TUO of the LMV approved by Supreme Decree No. 020-2023-EF: Article 17.- Duties toward Clients

[12] and the Market.- Persons registered in the Registry who act in the securities market, whether receiving or executing investment orders or advising or managing investments in securities on behalf of third parties or autonomous estates, must behave with diligence and transparency in the interest of their clients and in defense of the integrity of the market. Likewise, they must organize themselves in such a way as to minimize the risks of conflicts of interest and, in a situation of conflict, give priority to the interests of their clients, without privileging any of them. These persons must manage their activity in an orderly and prudent manner, taking care of the clients' interests as if they were their own, ensuring that they have all the necessary information about their clients and keeping them always adequately informed.

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infraction a generic or blank formula, under which non-compliance with rules or regulations is stipulated as punishable without specifying which specific act is the one classified as an infraction;

That, MR. FERRAND indicates that it would be important to carry out the analysis of the infraction type, since by verifying that the conducts it proscribes have been complied with, one could reach the conclusion of the existence of the infraction, which would not have been carried out by the SASP, which would outright generate the nullity of the RESOLUTION;

That, in this regard, it is noted that from ground 14 to 36 of the RESOLUTION, the SASP analyzes the charge formulated, for which it is finally sanctioned; in said part of the RESOLUTION it can be observed that the facts are analyzed, in contrast with the duties and rules of conduct that would have been breached by MR. FERRAND, in his capacity as representative of the stock brokerage firm;

That, MR. FERRAND maintains that the infraction type, established in numeral 2.25 of Annex I of the CURRENT SANCTIONS REGULATION, would present two parts, the first would establish as punishable conducts the verbs not having, not approving or not implementing; however, he considers that the realization of any of said conducts would not be enough to have incurred in infraction, since the second part of the infraction type would indicate that the conduct of failing to comply with the rules of conduct or the internal rules of conduct, among others, must additionally concur; this would respond to the fact that “ni” is a copulative conjunction, which would have as its function to coordinate words in an additive manner, functioning equivalently to “and”, inseparably linking the two conducts described in the type; thus, since it is impossible to incur in any of the conducts indicated in the first part of the infraction type, because it is not his function nor is it within his scope of control, nor does the establishment, approval or implementation of the rules of conduct depend on his will, the infraction type could not be configured with respect to MR. FERRAND and there would be no commission of the infraction;

Que, agrega que se podría pretender desconocer el uso copulativo de la conjunción “ni”, argumentando que el uso de la coma previa la vuelve independiente de las conductas previas, sin embargo, el uso de la coma en las conjunciones ha sido regulado por la Real Academia de la Lengua Española; y el uso de la coma previa a una conjunción copulativa no enervaría su significado como un vínculo indesligable entre dos vocablos, por lo que no resultaría válido argumentar que la coma previa cambia el sentido copulativo del “ni” o que vuelva independiente al verbo “cumplir” respecto de la ocurrencia necesaria y concurrente de los verbos “contar, aprobar, implementar” para la configuración del tipo infractor, y que si el legislador hubiera pretendido que se configure el tipo infractor con la ocurrencia de uno solo de los verbos, no habría usado la conjunción copulativa “ni” pues habría bastado con agregar una coma;

Que, al respecto, se aprecia del contenido del tipo infractor que éste busca describir distintas situaciones que constituyen infracción, las que pueden ser aplicables a los agentes de intermediación, y en otros, a sus representantes, así, en el numeral 2.2513 del Anexo I del REGLAMENTO DE SANCIONES ACTUAL se desarrollan distintos tipos infractores, que en algunos casos, recaerán sobre una entidad, como podría ser Credicorp SAB, en su condición de sociedad agente de bolsa, como sería el de aprobar las normas de conducta, y en otros, recaerán sobre los representantes de una sociedad agente de bolsa, como por ejemplo no cumplir con las normas de conducta, como es el caso del SEÑOR FERRAND;

Que, el SEÑOR FERRAND agrega que el precedente inmediato del tipo previsto en el numeral 2.25 del Anexo I del REGLAMENTO DE SANCIONES ACTUAL es el numeral 1.1714 del Anexo I y el numeral 3.2015 del Anexo X del REGLAMENTO DE SANCIONES, por lo que el tipo previsto en el numeral 1.8 del Anexo X del REGLAMENTO DE SANCIONES no encontraría correlato en ninguno de los tipos infractores vigentes, y de esa manera, habría quedado derogado, careciendo la infracción imputada del elemento de tipicidad;

Que, el tipo infractor tipificado en el inciso 1.1716 señala “No contar o no implementar o infringir las normas de conducta del emisor con respecto a la información que suministra a la SMV” (subrayado agregado), por lo que resulta claro que este otro tipo infractor no está referido a las normas de conducta que debe observar el representante de una sociedad agente de bolsa, como es el caso del SEÑOR FERRAND, sino a las normas de conducta del emisor cuando este transmite información a la SMV, y en cuanto al inciso 3.20 del REGLAMENTO DE SANCIONES, éste va referido, no al accionar del representante, sino a la actuación de la institución, ya que refiere funciones u obligaciones que no recaen en éste, tales como, contar con Normas Internas de Conducta o no aprobar un procedimiento de control; además de que el tipo claramente hace referencia a las normas internas de conducta, que no son materia del presente procedimiento, sino las normas de conducta; por lo que, tampoco constituye un antecedente inmediato del inciso 2.25 del REGLAMENTO DE SANCIONES ACTUAL;

Que, debe reiterarse que el inciso 2.25 del Anexo I del REGLAMENTO DE SANCIONES ACTUAL, contiene otros tipos infractores que son aplicables a los agentes de intermediación, y no a sus representantes; por lo que ellos no son aplicables al presente caso;

Que, sobre el principio de cuidado y diligencia, el SEÑOR FERRAND precisa que la RESOLUCIÓN en su considerando 260 señala que con sus actos vulneró la norma de conducta de cuidado y diligencia, debido a que no cuidó el mejor interés de su cliente señora ALFARO y no realizó la mejor ejecución para ella, y que con base a ello, se concluye que existió una tipificación errónea, dado que si se consideró que no cumplió sus funciones con diligencia debieron imputarle el tipo específico que sería el numeral 2.917 del Anexo I del REGLAMENTO DE SANCIONES;

[13] “2.25 No contar, aprobar, implementar, ni cumplir o modificarlas sin comunicarlo a la SMV, dentro del plazo correspondiente, las normas de conducta, las normas internas de conducta, o código de conducta, de acuerdo con la normativa de la materia, o no aprobar un procedimiento de control de dichas normas.”

[14] “1.17 Not having or not implementing or violating the issuer's internal rules of conduct with respect to the information it provides to the SMV.”

[15] “3.20 Not having duly approved Internal Rules of Conduct, or not approving a control procedure for said rules, in accordance with what is established in the applicable regulations”

[16] MR. FERRAND mistakenly refers to item 1.16, which does not correspond to the type of infringement he cites. It says 1.16 It should say 1.17, as referenced in this paragraph.

[17] MR. FERRAND begins his argument by citing the following type of infringement “2.9 Not performing the functions established by the regulations with due diligence”

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That, in this regard, it must be observed that the imputation and sanction concern the violation of conduct rules, which in the case of intermediation agents and their representatives are detailed in article 3 of the RAI in accordance with article 16 A of the LMV, and which should be known by the SAB and their representatives, it being further noted that said conduct rules are linked to the fiduciary duty of every intermediary toward its clients, or in other words, with the investors of the securities market, which implies the legal responsibility to act in their best interest, beyond the due performance of their functions; thus, it is not appreciated that numeral 2.9 of Annex I of the SANCTIONS REGULATIONS constitutes the specific type since it merely refers to the performance “with diligence [of] the functions established by the regulations”, which will not necessarily imply improper conduct toward clients and the market, therefore no erroneous typification is appreciated or that the infraction type indicated by MR. FERRAND constitutes a specific infraction type applicable to this proceeding;

That, regarding the principle or conduct rule of prevention of conflicts of interest, MR. FERRAND cites the infraction type provided in numeral 2.718 of Annex X of the SANCTIONS REGULATIONS, which he considers to be the specific type for this case, so when the RESOLUTION states in its recital 262 that he violated the conduct rules of prevention of conflicts of interest, since he prioritized his own interests over those of his client, he considers that there would have been an erroneous typification, given that if this had been considered, the infraction type cited above should have been imputed;

That, on this matter, as has been previously stated, the charge imputed and sanctioned refers to the breach of the principles or conduct rules, which, as the RESOLUTION rightly mentions, implies that the protected legal interest consisting of investor protection is affected, because the duties that the representatives of an agent company have toward their client and the market are breached, with the purpose of preventing the impairment of said interests, through requirements that seek that the clients of intermediaries be treated with honesty, neutrality, care and diligence, and that in situations of conflicts of interest, the investor's interests prevail for the benefit of the investor and the market, since non-observance of the aforementioned creates insecurity and distrust in investors regarding the fiduciary role fulfilled by stock brokerage companies and their representatives, and this distrust may be transferred to the other participants of the securities market;

That, notwithstanding the aforementioned, it must also be observed that the infraction type cited by MR. FERRAND, by specifying “on own account”, refers to an action of the intermediation agent and not of its representative;

That, on the other hand, MR. FERRAND states that ground 305 of the RESOLUTION establishes that “the exception to the

[18] MR. FERRAND places numeral 2.6, but from the content accompanying it, it is appreciated that it corresponds to subsection 2.7 which states: “To prefer the purchase or sale of securities on own account, when a request for purchase or sale of securities from a principal is made regarding the same security under equal or better conditions or to give preference to a particular client when there is a conflict of interest among its clients”

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principle of non-retroactivity contained in numeral 5 of article 248 of the TUO LPAG, and consequently, apply the sanctions corresponding to serious infractions provided in said regulation”, and that, despite this, in the operative part, it states “Article 2.- Declare that Mr. Ernesto Javier Ferrand Salaverry has incurred a very serious infraction typified in Annex X, numeral 1, subsection 1.8 of the Sanctions Regulations, approved by CONASEV Resolution No. 055-2001- EF/94.10 and its amending norms,…”; that is, although the SASP recognizes the exception to the principle of non-retroactivity in the recitals, in the operative part it sanctions him for a very serious infraction, which would generate a tangible detriment, since it would result in the impediment of subsection h), Annex B of the RAI19;

That, in this regard, this office observes that there is indeed no correspondence between the recitals and the operative part, and in effect, although the SASP takes as legal basis the provisions established in numeral 3 of article 248 of the TUO LPAG, to determine that the SANCTIONS REGULATIONS in force at the time of the commission of the infraction will not be applied, but rather the infraction type of the CURRENT SANCTIONS REGULATIONS will be applied for the determination of the sanction, it has not contemplated in its entirety the provisions of such disposition, which establishes the following:

“5.- Non-retroactivity.- The sanctioning provisions in force at the time the administered party incurs the conduct to be sanctioned are applicable, unless subsequent ones are more favorable to him. Sanctioning provisions produce retroactive effect insofar as they favor the presumed offender or the offender, both regarding the typification of the infraction and the sanction and its prescription periods, even with respect to sanctions in execution upon the entry into force of the new provision.” (underlining added)

That, by virtue thereof, in addition to imposing a fine corresponding to the serious infraction, it should also have been declared that he incurred in said infraction, that is, the one typified in numeral 2.25 of Annex I of the CURRENT SANCTIONS REGULATION, of a serious nature;

That, this situation generates a defect in the RESOLUTION, as there is an inconsistency between its content and the issues raised in the motivation; nevertheless, upon observing that it would be a non-transcendent defect related to the validity requirements of the administrative act, as mentioned above, the RESOLUTION must be corrected and preserved, as provided in subsection 14.2.1 of numeral 14.2 of article 14 of the TUO LPAG20; also taking into account that, essentially, this situation does not alter the meaning of what was analyzed and resolved in the RESOLUTION, such as that the imputed infraction was incurred and that the corresponding sanction should be applied;

[19] “Impediments: They cannot be organizers, or hold the position or function of director, manager, legal representative, person responsible for internal audit, person in charge of regulatory compliance, representative, those who are in any of the following situations: (…) h) Those who have received sanctions final administratively by the SMV, or equivalent foreign institutions, corresponding to: i) serious infractions in the last ten (10) years counted from when the sanction became final; or ii) very serious infractions”.

[20] “Article 14.- Preservation of the act (…) 14.2 The following are administrative acts affected by non-transcendent defects: 14.2.1 The act whose content is imprecise or inconsistent with the issues raised in the motivation (…)

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V. Evaluation of written arguments and oral report

That, through his oral report made on 2 November 2023 and his written arguments, MR. FERRAND reiterates the arguments developed in his appeal brief and supplementary brief, which have already been considered in the preceding points, and expands on some aspects of these, to which this office refers below;

That, regarding the statute of limitations, MR. FERRAND states in his ARGUMENTS that the Ministry of Justice clearly does not have the authority to interpret the DU, and additionally, that there is an incorrect supplementary application when referring to the Civil Code;

That, in this regard, the fact that the Ministry of Justice, through its legal opinions, is the one that establishes criteria that must be taken into account by State entities cannot be overlooked, and although it is of an advisory nature, it is valid to consider it, a criterion that, moreover, concurs with the position adopted by the SMV;

That, as to the possibility of an incorrect supplementary application in the referred opinion, it must be considered that article VIII of the Preliminary Title of the TUO LPAG on deficiency of sources does not make an express or direct reference to norms of a criminal nature, which is what is suggested, nor does this occur in doctrine when such aspect is analyzed, so that, although there may be important compatibilities between administrative and criminal law, it does not make it exclusive of using other supplementary sources as occurs in the present case;

That, on the other hand, MR. FERRAND states that the evidence evaluated is that delivered by Credicorp SAB, which would not have been verified by the SMV; however, it must be noted that the fact that these were requested from Credicorp SAB by the instructing body and received from it, as appears in the record of the present case, does not eliminate the evidence obtained from them, such as for example the audios, which contain the conversations between Mrs. Aoki and Mrs. Yong, which allow appreciating how the facts giving rise to the infraction developed, as well as the purchase order of MR. FERRAND's mother, aside from the request signed by Mrs. Aoki to receive the authorization for the operation of “related persons”, the report and registry of operations of the agent company, among others indicated and evaluated above, which have not been questioned as to their legitimacy, but as to whether they would be sufficient from MR. FERRAND's point of view;

VI. Sanction Criteria

That, it must be considered that, in the present case, it is one (1) single infraction of a serious nature, in application of the exception to the principle of non-retroactivity, as it is typified in that manner in the CURRENT SANCTIONS REGULATION, which is more beneficial for MR. FERRAND;

That, the referred infraction has been committed by a natural person who served as representative of a stock brokerage agent company, without holding any other management position in the organization;

That, MR. FERRAND, at the time of the imposition of the sanction by the first instance, had no prior record nor did he report any incidence in the commission of the infraction;

That, although the facts produced and the infraction committed are of profound gravity, as they undermine the integrity of the market, also harming the protected legal interest consisting of investor protection, the concrete quantifiable damage and the illicit benefit generated and obtained, respectively, by Mr. FERRAND, do not amount to one (1) UIT, for which reason this office considers that there would be no proportionality between the sanction imposed and the situation generated, and it is appropriate to impose a sanction corresponding to a lower classification than that provided;

That, by virtue of the foregoing, in this case, in application of the principle of proportionality, considering the provisions of the fourth paragraph of Article 6 of the SANCTIONS REGULATION, it is considered appropriate to graduate the sanction to one of a minor nature; and,

In accordance with the provisions of numeral 26 of Article 12 of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF;

RESOLVES:

Article 1.- To declare partially founded the appeal filed by Mr. Ernesto Javier Ferrand Salaverry against Deputy Superintendent Resolution No. 035-2021-SMV/10, regarding the inconsistency between its content and its motivation, on the application of the principle of benign retroactivity for the imposition of the sanction, and unfounded in the other extremes.

Article 2.- To correct Deputy Superintendent Resolution No. 035-2021-SMV/10, in its Articles 2 and 3, it being necessary to specify that a serious infraction was incurred, typified in numeral 2.25 of the Annex of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, in application of the exception to the principle of non-retroactivity.

Article 3.- To graduate the sanction imposed by Deputy Superintendent Resolution No. 035-2021-SMV/10 to 25 (twenty-five) UIT equivalent to the sum of S/ 101,250.00 (One hundred one thousand two hundred fifty and 00/100 Soles).

Article 4.- To consider the administrative route exhausted.

Article 5.- To transcribe this resolution to Mr. Ernesto Javier Ferrand Salaverry, Bolsa de Valores de Lima S.A. and to CAVALI S.A. I.C.L.V.

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Article 6.- To order the dissemination of this resolution on the Institutional Page of the Superintendence of the Securities Market on the Single Digital Platform of the Peruvian State (www.gob.pe/smv)

Lorena Masias Quiroga
Superintendent of the Securities Market