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Superintendent Resolution No. 055-2024-SMV/02

Lima, 6 May 2024

The Superintendent of the Securities Market

WHEREAS:

File No. 2022020166 containing, among others, the appeal filed by Inversión y Desarrollo Sociedad Agente de Bolsa S.A.C. (hereinafter, INVERSIÓN Y DESARROLLO SAB), against Deputy Superintendent Resolution SMV No. 027-2022-SMV/10 and Report No. 214-2024-SMV/06 issued by the Legal Advisory Office; as well as the briefs of INVERSIÓN Y DESARROLLO SAB; and having heard the oral reports by the representatives of said company;

CONSIDERING:

That, by Deputy Superintendent Resolution SMV No. 027-2022-SMV/10 of 28 October 2022 (hereinafter, SANCTION RESOLUTION), the Deputy Superintendency of Prudential Supervision resolved, among others, to sanction INVERSIÓN Y DESARROLLO SAB with a fine of seven (07) UIT, equivalent to S/ 29,050.00 (Twenty-Nine Thousand Fifty and 00/100 Soles), for having incurred one (01) infraction of a very serious nature typified in Annex X, numeral 1, subsection 1.7 of the Sanctions Regulation, approved by CONASEV Resolution No. 005-2001-EF/94.10 (hereinafter, FORMER SANCTIONS REGULATION) and in Annex X, numeral 1, subsection 1.4 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, CURRENT SANCTIONS REGULATION), for not observing that its representative, Mr. Oscar Chávez Li (hereinafter, MR. CHAVEZ), meets the requirements established in the current regulations for conducting operations with debt financial instruments;

That, by brief submitted on 22 November 2022, INVERSIÓN Y DESARROLLO SAB filed an appeal against the SANCTION RESOLUTION, seeking its annulment;

That, by Report No. 214-2024-SMV/06 of 16 February 2024 (hereinafter, REPORT), the Legal Advisory Office issued an opinion on the appeal filed by INVERSIÓN Y DESARROLLO SAB;

That, by Official Letter No. 650-2024-SMV/14 of 20 February 2024, the REPORT was forwarded to INVERSIÓN Y DESARROLLO SAB, so that it may submit its arguments within a period of five (5) business days, as provided by article 18 of the CURRENT SANCTIONS REGULATION;

That, on 27 February and 4 April 2024, INVERSIÓN Y DESARROLLO SAB submitted written arguments;

That, on 7 March and 4 April 2024, two (2) Oral Reports were held by INVERSIÓN Y DESARROLLO SAB;

I. DEFENSE ARGUMENTS OF INVERSIÓN Y DESARROLLO SAB

That, the arguments contained in the appeal filed by INVERSIÓN Y DESARROLLO SAB, its argument briefs and its oral reports are set out succinctly below:

1.1. On the Repo Operation

(i) INVERSIÓN Y DESARROLLO SAB argues that, in Annex F, literal e), of the Regulation of Intermediation Agents, approved by SMV Resolution No. 034-2015-SMV/01 and its amendments (hereinafter, “RAI”), no professional suitability examination has been provided for representatives that contemplates the specialized component of «repo operations». In this sense, since it is materially impossible to pass a professional suitability examination on the aforementioned financial instrument, it is not appropriate to require representatives to have an authorization to carry out such type of operations;

(ii) It states that, in accordance with literal k) of article 2 of the RAI, repo operations are identified as a financial instrument different from debt or equity financial instruments. In this sense, it is understood that Annex F, literal e), of the RAI refers only to instruments representing equity, debt and properly financial derivatives, excluding repo operations;

(iii) It alleges that the very nature of repo operations does not change depending on the underlying asset that is the subject of the operation, that is, the analysis of specific operability, liquidity analysis, its risk rating, among others, responds to the same logic of repo operations;

(iv) Likewise, regarding recitals 63 to 65 and 70 to 72 of the SANCTION RESOLUTION, it points out that, since there is no professional suitability examination directed for the case of repo operations, it is not appropriate to require that representatives have a specific authorization for their development. In this sense, it has not been determined that investors have been specifically affected or caused economic harm;

(v) On the other hand, it alleges that what is stated in the REPORT lacks legal basis, since, in accordance between literal q) of article 90 of the Single Ordered Text of the Securities Market Law, approved by Supreme Decree No. 020-2023-EF (hereinafter, TUO of the LMV) and article 1 of Superintendent Resolution No. 0014-2014-SMV/01, no current regulation on operator functions can be applied restrictively to the conduct of repo operations, since, previously, it is necessary for the Securities Market Superintendency – SMV to approve a respective regulation project. Additionally, it reiterates that there is no regulation establishing that the representative who intermediates with repo operations must previously obtain the knowledge certification indicated in Annex F of the RAI; and,

(vi) Furthermore, it argues that, in the aforementioned REPORT, an operability without normative support derived from the essential procedure that validates it is imposed, which results from an interpretation of the regulations, an exclusive and excluding attribution of the Board of Directors of the Superintendency of the Securities Market – SMV.

1.2. On the atypical nature of the infraction

(i) INVERSIÓN Y DESARROLLO SAB alleges that an extensive interpretation of the sanctionable assumption has been made, since it has been unduly understood that compliance with requirements has as its purpose the execution of operations. However, neither in the text in force at the date of the facts nor in the text currently in force is the mention «for the execution of operations» included;

(ii) It states that, in this way, by having subsumed into the sanctionable assumption facts that are considered an infraction, but that would not be provided for or explicit in the aforementioned assumption, the sanctioning body has incurred not only in interpreting that the facts not provided for or explicit are included in the sanctionable assumption, but also in inserting in its allusion to the sanctionable assumption the mention «for the execution of operations»;

(iii) It points out that the acts or operations carried out by MR. CHAVEZ do not infringe the norms in question, since literal b) of article 40 of the RAI empowers him without any limitation to carry out repo operations, in his capacity as operator. Likewise, it specifies that the general provisions on repo operations do not establish any norm regarding the requirements that the representative of a stock brokerage firm must comply with to carry out this type of operations;

(iv) It states that literal d) of article 41 of the RAI does not constitute a limitation, since it empowers him to carry out operations with financial instruments, and the repo operation is a financial instrument, which is independent and has been separated by the legislator from the other three (03) financial instruments: equity, debt or derivatives;

(v) For this reason, it considers that the provisions of article 44 of the RAI have not been infringed, since not only are there no requirements approved by the general norm to carry out repo operations, but the current regulatory norms do not specify any requirement;

(vi) On the other hand, INVERSIÓN Y DESARROLLO SAB states that in the SANCTION RESOLUTION the atypical modality of general or indeterminate clauses has also been incurred, which has been developed by the Constitutional Court in grounds 40 and 41 of the judgment in File No. 01873-2009-PA/TC – LIMA, which provides the following:

«b) The principle of typicity

40. This principle allows sanctionable conducts to be duly delimited so that general or indeterminate clauses are proscribed, that is, those whose content is not express and knowable, but must be “filled in” or concretized through arguments used for that purpose, but for that very reason, sometimes subsequent to the act intended to be sanctioned.

41. Then, it turns out that the much-mentioned “knowledge” of the prohibited conducts is no longer such, given that the administrative body can go about filling in the content of such indeterminate legal concepts according to the fact it intends to sanction, thus leaving the act of “completing” the content of such acts to the discretion or arbitrariness of the administrative entity»

(vii) Likewise, it maintains that numeral 24 of literal a) of article 2 of the Political Constitution of Peru is being contravened, which provides that no one is obliged to do what the law does not command. Consequently, the ground for nullity provided in the TUO DE LA LPAG has been incurred;

II. EVALUATION OF THE APPEAL

2.1. Formal requirements of the appeal

In accordance with the provisions of numeral 217.1 of article 217 of the Single Ordered Text of Law No. 27444, General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO de la LPAG), against an «act that is supposed to violate, disregard or impair a right or legitimate interest, its contradiction proceeds in the administrative venue through the administrative resources indicated in the following article, initiating the corresponding recourse procedure»;

That, in this regard, article 218 of the TUO DE LA LPAG provides that administrative resources are the reconsideration resource and the appeal resource; and that their filing must be raised within a peremptory period of fifteen (15) days;

That, in addition to the foregoing, articles 124 and 221 of the TUO DE LA LPAG provide the requirements that the appeal must comply with;

That, however, from the evaluation carried out on the basis of said legal framework, it has been verified that the appeal filed by INVERSIÓN Y DESARROLLO SAB complies with the requirements established in the TUO DE LA LPAG, given that it was filed within the term of fifteen (15) business days, is based on questions of pure law and complies with the other requirements established by the regulations, so it is appropriate to issue an opinion on its grounds;

2.2. Evaluation of the arguments of the appeal

a. Regarding the Repo Operation

That, INVERSIÓN Y DESARROLLO SAB mainly denies that Annex F, literal e), of the RAI provides that representatives must develop a professional suitability examination with a specialty in «repo operations», as well as that for its development they must have an authorization; even more so when, in accordance with literal k) of article 2 of the RAI, repo operations are identified as a financial instrument different from debt or equity instruments;

That, additionally, INVERSIÓN Y DESARROLLO SAB disagrees that the nature of the repo operation changes depending on the underlying asset of the operation; and that the REPORT lacks legal basis; since, in accordance between literal q) of article 90 of the TUO DE LA LMV and article 1 of Superintendency Resolution No. 0014-2014-SMV/01, no current rule on the functions of an operator can be applied restrictively to the carrying out of repo operations, since, previously, it is necessary that a respective regulatory project be approved;

That, in relation to the arguments alleged by INVERSIÓN Y DESARROLLO SAB, it is necessary to review, previously, the legal and regulatory provisions that specifically regulate the authorization of the representatives of the brokerage agent, in order to carry out an integrated and

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coherent; and, determine whether Mr. Chávez was previously authorized or not to carry out repo operations with debt instruments;

That, in this regard, literal b) of article 40 of the RAI contemplates the types of operations that an operator-type representative can carry out:

«Article 40.- Types of Representatives

For the exercise of its functions, the Agent may have the following types of Representatives, who assume joint and several liability, together with the Agent, for the fulfillment of their functions:

(…)

b) Operator: Natural person who can carry out the operations contemplated in subparagraphs a), p), q) and s) of article 194 of the Law in the case of Agent Companies, or in subparagraphs c) and d) of article 207 of the Law in the case of Intermediary Companies.

The Operator may carry out the operations indicated in subparagraphs a) and b) of article 194 and subparagraphs c), d) and e) of article 207 of the Law, with Financial Instruments.

The Operator is the only representative who can perform the function of market maker and temporary price stabilizer.

The Operator may exercise the acts indicated in subparagraphs a), b) and c) of article 47;

The function of the Operator-type Representative, in a certain type of instrument, includes that of Advisor in the same type of Financial Instrument.

(…)» (Emphasis and underlining added)

That, from the aforementioned article it is important to highlight that the Representative, operator type, may carry out, among others, the operations contemplated in literal q) of article 194 of the Securities Market Law, Legislative Decree No. 861 and its amendments —currently contemplated in article 190 of the TUO DE LA LMV—, among which it includes repo operations:

«Article 190.- Operations.- Agent companies are empowered to carry out the following operations:

(…)

q) Carry out securities loans and repo operations in accordance with the general provisions issued by the SMV;» (Underlining and emphasis added)

That, in this sense, from the reading of the aforementioned articles 40 of the RAI and 190 of the TUO DE LA LMV, it follows —expressly— that repo operations are considered as one of the operations that an Operator-type Representative can carry out;

That, for its part, literal d) of article 41 of the RAI establishes three types of financial instruments that said type of representative can operate: a) equity; b) debt and, c) derivatives; it being important to emphasize that for this it should previously request the respective authorization:

«Article 41.- Authorization of Representatives

The authorization of Representatives is of automatic approval with the presentation to the SMV of the following documents:

(….)

d) Current Knowledge Certification, issued by the certifying entity designated to accredit the knowledge, in accordance with the provisions of Annex F of the RAI. This certificate is not a requirement when it concerns the authorization of the Investment Officer.

The authorization of the Advisor Representative and the Operator is granted according to the type of financial instrument they advise or operate, which may be equity, debt or derivative Financial Instruments.» (Underlining and emphasis added)

That, in light of the foregoing, it is evident that the previously cited literal requires certification of knowledge for representatives who carry out operations with equity, debt, and derivative financial instruments. In that same sense, literal e) of Annex F of the RAI requires the representative to prove a professional suitability examination only with respect to those three types of instruments:

ANNEX F

«RULES FOR THE CERTIFICATION OF KNOWLEDGE OF SECURITIES MARKET PROFESSIONALS

Any person who intends to be a Representative of an Agent must obtain a Certification of Knowledge from a Certifying Entity. For this purpose, the following rules applicable to the entire certification process are established.

(…)

e) Professional Suitability Examinations

The specialized component is related to the specific functions that the Advisory, Operator or Portfolio Manager Representative will perform in relation to the following Financial Instruments:

a) Equity instruments;

b) Debt instruments; or,

c) Derivative instruments;

Additionally, the specialized component for the Portfolio Manager Representative must include, in addition to all of the foregoing, topics related to the portfolio management function» (Underlining and emphasis added)

That, the three types of financial instruments established in literal d) of article 41 and literal e) of Annex F of the RAI cannot be read in isolation from article 40° of the RAI, which qualifies repurchase operations as a type of operation to be carried out by the operator-type agent, who depending on the underlying of said operation (financial instrument in question) must have the respective certification of knowledge, as applicable in accordance with the provisions of literal e) of Annex F of the RAI;

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That, the aforementioned in the previous paragraph is especially relevant to respond to the argument presented by INVERSIÓN Y DESARROLLO SAB in its briefs of arguments regarding the non-existence of regulations, previously disseminated within the framework of the provisions of article 1° of Superintendency Resolution No. 0014-2014-SMV/011, that establish that the representative who intermediates with repurchase operations must obtain the certification of knowledge indicated in Annex F of the RAI; since, from the current regulations it is evident that repurchase operations are not considered within the types of financial instruments for which the Operator Representative is authorized to operate, which in accordance with the last paragraph of article 41 of the RAI cited above, are solely referred to financial instruments of i) equity, ii) debt, or iii) derivatives. In that sense, although in accordance with the provisions of article 40 of the RAI and 190 of the TUO DE LA LMV, operator Representatives may carry out repurchase operations, prior to carrying them out, they must request authorization to operate with the financial instrument underlying the repurchase operation they wish to carry out, whether it be a debt or equity instrument, as applicable, and must prove, among others, the certification of knowledge, in accordance with article 41 and literal e) of Annex F of the RAI;

That, according to the information in the file, it is noted that on 02 July 2018, INVERSIÓN Y DESARROLLO SAB requested that authorization be granted to MR. CHAVEZ to serve as Representative, operator type, with respect to equity instruments. Consequently, considering that the referred procedure is of automatic approval, as of said date, MR. CHAVEZ was authorized to carry out, among others, repurchase operations, in accordance with literal b) of article 41, but only with equity instruments;

That, it is worth mentioning that it has been noted that the referred request was made using the form established in Circular No. 407-2017-SMV/10.2, by which the Deputy Superintendency of Prudential Supervision (SASP) previously informed its supervised entities about the existence of a table of operations and phases equivalent to each type of representative (Annex 1):

ii. Documents to be submitted for representative authorization:

1. Request according to Form No. 1 (indicate the type or types of representative, the operations requested to be carried out and, if applicable, the phases of the intermediation process in which they will participate). In order to harmonize the operations and phases of the intermediation process requested with the type or types of representative whose authorization is requested, Annex 1 is attached with the table of operations and phases equivalent to each type of representative. (Highlight added)

[1] «Article 1.- Prior dissemination of draft norms of general scope The draft legal norms of general scope that the Superintendency of the Securities Market - SMV must issue within its competence, must be disseminated prior to their final approval, through the citizen consultation procedure regulated in the following article, in order to receive comments and suggestions from interested parties. Such comments or suggestions are not binding for the SMV».

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That, likewise, the aforementioned table establishes the following:

ANNEX 1 Table of Equivalent Functions by Type of Representative

Type Representatives	Art. 194 of the LMV	Art. 207 of the LMV	Art. 47 of the RAI
Advisor	b)	e)	a) and b)
Operator	a), p), q), s), b) and f)*	c), d), e)	a), b) , c) and d)
Portfolio Manager	a), p), q), s), b), f)* and i)	b), c), d) and e)	a), b), c) and d)
Investment Officer	c), d), f)**	a)
* Only includes the price maker option
**Does not include the price maker option

The activities included in literals e), g), h), j), k), l) m), n), o), r), t), u) of Art. 194 of the LMV and in literals f), g), h), i) of Art. 207 of the LMV do not require authorization from the SMV.

That, as can be observed, the cited table establishes the operations according to the type of representative to whom authorization is granted, taking as a direct reference the operations established in articles 194 and 207 of the Securities Market Law and 47 of the RAI. Thus, it is established that operator-type representatives may carry out the repurchase operations included in literal q) of article 194 of the Securities Market Law —or literal q) of article 194 of the TUO OF THE LMV—, which does not mean that they should not prove the knowledge required for the financial instrument involved in the repurchase operation;

That, consequently, it can be inferred that, at the time of submitting the application on 02 July 2018, INVERSIÓN Y DESARROLLO SAB had taken into consideration the types of operations that an operator-type representative could carry out, as well as the three types of financial instrument that it could operate. However, as previously stated, in said application, INVERSIÓN Y DESARROLLO SAB requested that authorization be granted to MR. CHAVEZ to serve as an operator-type Representative with respect to, solely, equity instruments. Nevertheless, during the period from 27 July to 27 December 2018, said gentleman carried out repurchase operations with debt instruments;

That, it should be noted that, from the review of the file, it is observed that on 01 July 2019, INVERSIÓN Y DESARROLLO SAB only then requested authorization for MR. CHAVEZ to also be able to operate with debt instruments. For this purpose, it attached Certificate No. 2019-004 dated 28 March 2019, by which the Pontificia Universidad Católica del Perú certified that MR. CHAVEZ had passed the Professional suitability examination under the category of

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Operator in the Fixed Income specialty, on 24 March 2019, that is, after the repurchase operations subject of the infringement;

That, in summary, article 40 of the RAI recognizes repurchase operations as a type of operation that an operator-type representative may carry out and article 41 requires that the representative have accredited knowledge of equity, debt and derivative financial instruments, in order to carry out the operations included in article 40 of the RAI with said types of financial instruments;

That, notwithstanding the foregoing, it should be noted that INVERSIÓN Y DESARROLLO has alleged that the REPORT imposes an operability without normative support derived from the essential procedure that validates it, which results from an interpretation of the regulations, a power that has been attributed exclusively and exclusively to the Board of Directors of the Superintendency of the Securities Market – SMV;

That, in this regard, it should be indicated that the REPORT is not making an interpretation of the rule, since it is not obscure or ambiguous; rather, in legitimate exercise of the administrative power, an application of it to the specific case is made. Thus, it has been evidenced: (i) article 40 of the RAI recognizes repurchase operations as a type of operation that an operator-type representative may carry out; and, (ii) the operator-type Representative must prove the professional suitability of the types of financial instruments (equity, debt or derivatives) with respect to which it will carry out, among others, repurchase operations, as provided by article 41 of the RAI;

That, in this sense, it is appropriate to dismiss the arguments presented by INVERSIÓN Y DESARROLLO SAB in this part of its appeal;

b. Regarding the atypical nature of the infringement

That, on the other hand, INVERSIÓN Y DESARROLLO SAB alleges that an extensive interpretation of the sanctionable assumption has been made; since neither the text in force at the date of the facts nor the text currently in force includes the mention of «for the carrying out of operations». Thus, the sanctioning body would have resorted not only to interpreting that the facts not provided for or specified are included in the sanctionable assumption, but also to inserting in the allusion to the sanctionable assumption the mention «for the carrying out of operations». Likewise, it states that the atypical modality of general or indeterminate clauses would also have been incurred;

That, on the other hand, INVERSIÓN Y DESARROLLO SAB has indicated that numeral 24 of literal a) of article 2 of the Political Constitution of Peru would be contravened; and that the ground for nullity provided in the TUO OF THE LPAG would be incurred;

That, regarding said arguments, it should be stated that the Constitutional Court has developed in reiterated jurisprudence the principle of typicity, regarding which it has stated the following:

«The subprinciple of typicality or strictness constitutes one of the manifestations or concretions of the principle of legality with respect to the limits imposed on the criminal or administrative legislator, so that the prohibitions that define sanctions, whether criminal or administrative, are drafted with a sufficient level of precision that allows any citizen with basic education to understand without difficulty what is being proscribed under threat of sanction in a given legal provision.»2

That, from the aforementioned text, it is noted that the principle of typicality or strictness implies that the punishable conduct be described under minimum standards of precision, that is, the norm must contain a clear predetermination of the infraction, the sanction, and the correlation between the two;

That, on the other hand, numeral 4 of article 248 of the TUO DE LA LPAG provides the following, regarding the principle of typicality:

«Article 248.- Principles of the administrative sanctioning power The sanctioning power of all entities is additionally governed by the following special principles: (…) 4. Typicality.- Only infractions expressly provided for in norms with the rank of law through their typification as such constitute administratively sanctionable conduct, without admitting extensive interpretation or analogy. Regulatory provisions may develop conduct or determine sanctions, without constituting new sanctionable conduct beyond those legally provided, except in cases where the law or Legislative Decree allows infractions to be typified by regulatory norm. Through the typification of infractions, the administered cannot be imposed the fulfillment of obligations that are not previously provided for in a legal or regulatory norm, as applicable. (…)»

That, in this way, said article establishes the prohibition of carrying out an extensive or analogical interpretation; furthermore, it provides that the administered cannot be imposed the fulfillment of obligations that are not previously provided for;

That, taking the legal framework described above, the following table details the infraction type incurred by INVERSIÓN Y DESARROLLO SAB:

FACTS	INFRACTION TYPE
For the report operations comprised between 27 July and 14 December 2018	Annex X, numeral 1, subsection 1.7 of the PREVIOUS SANCTIONS REGULATION; according to which it constitutes an infraction: «To maintain directly or indirectly persons who have any legal or regulatory impediment, not to observe that these comply with the requirements established in the current regulations, or to allow or facilitate these to develop activities related to those of the intermediation agent».

FACTS

INFRACTION TYPE

For the report operations comprised between 27 July and 14 December 2018

Annex X, numeral 1, subsection 1.7 of the PREVIOUS SANCTIONS REGULATION; according to which it constitutes an infraction: «To maintain directly or indirectly persons who have any legal or regulatory impediment, not to observe that these comply with the requirements established in the current regulations, or to allow or facilitate these to develop activities related to those of the intermediation agent».

[2] Ground 40 of the Judgment of the Constitutional Court in file No. 00020-2015-PI/TC.

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For the report operations comprised between 24 and 27 December 2018	Annex X, numeral 1, subsection 1.4 of the NEW SANCTIONS REGULATION, which typifies as a very serious infraction: «To maintain directly or indirectly persons who have any legal or regulatory impediment, not to observe that these comply with the requirements established in the current regulations, or to allow or facilitate these to develop activities related to those of the intermediation agent».

That, as noted, it has been established as an infraction type «not to observe that the requirements established in the current regulations are complied with». In this regard, this office considers that the principle of typicality is not violated since the pertinent articles of the RAI precisely contemplate the requirements that the Representatives, operator type, must comply with —in this case, having the authorization to carry out operations with debt instruments—; therefore, INVERSIÓN Y DESARROLLO SAB was in a position to foresee, sufficiently and adequately, the consequences of its acts, so there is no violation of the principle of typicality;

That, it should be noted that the Constitutional Court3 has also indicated that the principle of typicality admits an abstract formulation, but does not admit imprecise formulations:

«(…) it must be borne in mind that both legal norms, in general, and criminal types [and also administrative types], in particular, have, by their very nature, an abstract and general character; therefore, such characteristics, per se, do not violate any constitutional norm.

Different is the case of the “imprecise” character of the criminal norm that is also questioned; since, as indicated, the legislator, by constitutional mandate, must typify crimes expressly and unequivocally, so it is appropriate to analyze each of the questioned concepts in order to verify whether this guarantee has been observed.»

That, for this reason, the fact that the texts of the OLD AND CURRENT SANCTIONS REGULATION do not contemplate «for the realization of operations», does not imply that the principle of typicality has been violated or that the atypical modality of general or indeterminate clauses is being incurred; since, as previously stated, the infraction type presents a reasonable and sufficient degree of determination to establish the scope of prohibition, which refers to the fact that the intermediation agent did not observe that its representative complies with the requirements established in the current regulations;

That, likewise, it is accredited that numeral 24 of literal a) of article 2 of the Political Constitution of Peru, to which INVERSIÓN Y DESARROLLO SAB refers, is not being violated either, nor has a ground for nullity provided in the TUO DE LA LPAG been incurred;

[3] Grounds 54 and 55 of the Judgment of the Constitutional Court issued in file No. 0010-2002-AI/TC.

That, therefore, the arguments presented by INVERSIÓN Y DESARROLLO SAB in this part of its appeal are dismissed;

That, in accordance with what has been developed and analyzed above, the RESOLUCIÓN DE SANCIÓN should not be revoked; and, consequently, the appeal filed by INVERSIÓN Y DESARROLLO SAB should be dismissed; and,

In accordance with the provisions of numeral 26 of article 12° of the Reglamento DE Organización y Funciones de la Superintendencia del Mercado de Valores, approved by Decreto Supremo N° 216-2011-EF and its amendments;

RESUELVE:

Artículo 1°.- Declare unfounded the appeal filed by Inversión y Desarrollo Sociedad Agente de Bolsa S.A.C. against Resolución de Superintendencia Adjunta SMV Nº 027-2022-SMV/10.

Artículo 2°.- Consider the administrative route exhausted.

Artículo 3°.- Transcribe this resolution to Inversión y Desarrollo Sociedad Agente de Bolsa S.A.C. and to the Bolsa de Valores de Lima S.A.

Artículo 4°.- Order the dissemination of this resolution on the Institutional Page of the Superintendencia del Mercado de Valores – SMV on the Plataforma Digital Única del Estado Peruano (www.gob.pe/smv).

Zósimo Juan Pichihua Serna
Superintendent of the Securities Market

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Superintendent Resolution No. 055-2024-SMV/02

Superintendent Resolution No. 055-2024-SMV/02

WHEREAS:

CONSIDERING:

I. DEFENSE ARGUMENTS OF INVERSIÓN Y DESARROLLO SAB

1.1. On the Repo Operation

1.2. On the atypical nature of the infraction

II. EVALUATION OF THE APPEAL

2.1. Formal requirements of the appeal

2.2. Evaluation of the arguments of the appeal

a. Regarding the Repo Operation

b. Regarding the atypical nature of the infringement

RESUELVE:

Lineage

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