Superintendent Resolution No. 125-2025-SMV/02

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship Superintendent Resolution No. 125-2025-SMV/02 Lima, October 15, 2025 The Superintendent of the Securities Market SEEN:
File No. 2024050031, Report No. 1471-2025-SMV/06, from the Legal Advisory Office, through which it issues an opinion on the challenging appeal filed by Esquema Investment S.A. (hereinafter, ESQUEMA) against the Superintendent Resolution Adjunct SMV No. 023-2025-SMV/10 (hereinafter, the SANCTIONING RESOLUTION), and after hearing the oral report from the representatives of the appellant; CONSIDERING:

1. That, through the SANCTIONING RESOLUTION 1
   , notified on May 8, 2025, the Adjunct Superintendence of Prudential Supervision (hereinafter, SASP) resolved, among others, the following: (i) Declare that ESQUEMA has committed one (1) very serious infringement typified in clause 1.1, number 1, letter A) of Annex III of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for failing to comply with article 51 of the Single Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF (hereinafter, TUO LMV) and articles 4 and 11 of the Regulation of Primary Public Offerings and Sale of Securities, approved by CONASEV Resolution No. 141-1998-EF/94.10, for having carried out public offerings without having previously registered the securities in the Public Registry of the Securities Market (hereinafter, RPMV); (ii) Sanction ESQUEMA with a fine of three hundred (300) UIT, equivalent to S/ 1,260,000.00 (one million two hundred sixty thousand and 00/100 soles) for the commission of the aforementioned infringement;
   I. OF THE CHALLENGING APPEAL:
2. That, through a document presented on May 29, 2025, ESQUEMA filed an appeal for reconsideration, requesting that the office of the Adjunct Superintendent of the SASP act and value the new evidence offered, revoking in all its aspects the SANCTIONING RESOLUTION and declaring the filing of the present sanctioning procedure (hereinafter, PAS). Subsequently, the SASP considered that the appeal presented was one of appeal and referred it to the office of the Superintendent of the Securities Market;

1 Rectified by Superintendent Resolution Adjunct SMV No. 025-2025-SMV/10.

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship
3. That, through a document presented on June 19, 2025, the appellant presented complementary arguments so that the Superintendent of the Securities Market declares the SANCTIONING RESOLUTION null or that it is revoked in all its aspects and declares the filing of the present PAS;
4. That, through Superintendent Resolution No. 065-2025-SMV/02 dated June 2, 2025, notified on the same day, it was resolved, among others, the following: (i) qualify the present PAS as high complexity, according to number 3 of article 1 of SMV Resolution No. 013-2024-SMV/01 2
; and (ii) declare that the aforementioned resolution was not appealable in the administrative venue, according to what is established by article 5 of Legislative Decree No. 1683, Legislative Decree that establishes the deadlines for the attention of administrative appeals presented in high complexity sanctioning administrative procedures of the Securities Market Superintendence 3 ;
5. That, through Office No. 5554-2025-SMV/14 of September 26, 2025, the use of the word was granted to the appellant, whose hearing took place on October 3, 2025, with the participation of its representatives Nicole A. Espinoza Rengifo and Diego A. Chávez Ampuero;
6. That, through Report No. 1471-2025-SMV/06 of October 15, 2025, the Legal Advisory Office issued a legal opinion on the arguments contained in the appeal, ratified in the hearing of the use of the word;
II. EVALUATION
7. That, from the evaluation carried out, it has been verified that the appeal filed by ESQUEMA meets the requirements established in articles 113, 207 and 211 of Law No. 27444, General Administrative Procedure Law 4
(hereinafter, LPAG), since it was filed within the deadline of fifteen (15) days of notification of the administrative act and is founded 5 ;
8. That, below are summarized the arguments exposed by the appellant in the documents presented and ratified in their oral report:
Document presented on May 29, 2025
A. ON THE DUTY OF DIVISO SAB
ESQUEMA maintains that the indications considered in the SANCTIONING RESOLUTION refer exclusively to actions attributable to Diviso Bolsa Sociedad Agente de Bolsa S.A. (hereinafter DIVISO SAB), not to the appellant. In this context, ESQUEMA emphasizes that it does not have the legal duty to monitor or supervise the placement activity of DIVISO SAB, as it is a specialized agent in securities market matters and is in a better position to appreciate the risks of incurring a public offering. Likewise, it specifies that DIVISO SAB placed the securities to investors without requiring acceptance by the appellant. In line with the above, ESQUEMA states that its responsibility in a securities offering is mainly framed in defining, jointly with the

4 Article 113.- Requirements of the documents
Every document presented before any entity must contain the following:

1. Full names, address and National Identity Document number or foreigner's ID card of the administrator, and if applicable, the quality of representative and of the person they represent.
2. The concrete expression of what is requested, the factual grounds that support it and, when possible, the legal grounds.
3. Place, date, signature or fingerprint, in case of not knowing how to sign or being impeded.
4. The indication of the body, entity or authority to which it is addressed, understood as such, as far as possible, to the authority of the closest degree to the user, according to the hierarchy, with competence to know and resolve it.
5. The address of the place where notifications of the procedure are desired to be received, when it is different from the real address exposed by virtue of number 1. This address indication produces its effects from its indication and is presumed subsistent, unless its change is expressly communicated. Likewise, the email or, if applicable, the electronic mailbox, according to article 20 of the present law.
6. The relationship of the documents and attachments that accompany, indicated in the TUPA.
7. The identification of the file of the matter, in the case of already initiated procedures.
   Article 207. Administrative appeals
   207.1 The administrative appeals are:
   a) Appeal for reconsideration b) Appeal
   Only in the case that by law or legislative decree it is expressly established, the filing of the administrative appeal of revision is possible.

207.2 The term for filing the appeals is fifteen (15) peremptory days, and they must be resolved within thirty (30) days, with the exception of the appeal for reconsideration which is resolved within fifteen (15) days. Exceptionally, in single-instance administrative procedures of the competence of the governing councils of regulatory bodies, the appeal for reconsideration is resolved within thirty (30) days.
Article 211.- Requirements of the appeal
The appeal document must point out the act from which it is appealed and comply with the other requirements provided in article 113 of the present Law.
5 The appealed resolution was personally notified on May 8, 2025 and the appeal for reconsideration was received on May 29, 2025.

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship intermediation agent, if the placement constitutes a public offering, as established in letter a) of article 46 of the Intermediation Agents Regulation 6 , which is reflected in the master issuance contract, the respective complementary contracts, among others. In this sense, the appellant maintains having fully complied with its obligations, given that the issuance contracts specify that the offerings were directed exclusively to institutional investors. Now, ESQUEMA maintains that the Securities Market Superintendence (SMV) makes an error by not separating the roles adopted by each of the involved parties and, consequently, their responsibilities, since although the appellant is the legal person obliged to pay the securities, it does not act as a placer of these and has entrusted this activity to an expert third party like DIVISO SAB. Finally, for ESQUEMA it is evident that the SMV has completely omitted practicing the probative activity linked to its actions, since the actions of DIVISO SAB cannot be proof of the responsibility of the appellant, thus violating the principle of personal imputation by which the SMV had to determine the degree of participation of ESQUEMA based on specific evidence of this, as well as destroying the principle of presumption of lawfulness that on the basis of the indications provided by the SMV do not justify responsibility by the appellant. B. OFFERING OF NEW EVIDENCE The appellant requests that, in application of the principle contemplated in number 1.2 of article IV of the LPAG, the following evidence be acted upon: (i) Cite and interrogate the complainants and any investor that the SMV deems necessary in order to consult if they had contact with any official of ESQUEMA, if they received any offer from any official of the appellant, if they delivered any information to any official of ESQUEMA, or if in any way the appellant or its officials influenced the acquisition of the securities; and (ii) Cite and require the complainants to explain if the sworn statements of institutional investor were signed under error, fraud, violence or intimidation or any other cause that deprives them of efficacy, specifying in detail what such cause consisted of. In any case, explain the reasons why they stated a false fact in a document. Document presented on June 19, 2025
C. REGARDING THE INAPPROPRIATE QUALIFICATION OF THE APPEAL FOR RECONSIDERATION
First, ESQUEMA maintains that through the notification of Superintendent Resolution No. 06-2025-SMV/02 7 they learned that the present procedure had been qualified as one of high complexity, realizing with surprise that their appeal for reconsideration presented on May 29, 2025, had been channeled as an appeal, leaving them in complete defenselessness. Regarding the above, the appellant points out that the reconduction of their appeal for reconsideration as one of appeal constitutes an abuse of right, insofar as the administration is only authorized to this requalification when there is a manifest error of the appellant in the qualification, which has not occurred, since their appeal for reconsideration was correctly named, discarding that there is obscurity in its denomination. ESQUEMA considers that it complied with substantiating the appeal for reconsideration with new evidence. In this sense, it maintains that it complied with explaining the need to act upon the new evidence and the controversial aspects that would allow accrediting, namely: (i) the responsibility and role of the appellant in the commission of the infringement, and ii) the full validity of the sworn statements of institutional investor. Based on the above, for ESQUEMA the new evidence offered is (a) pertinent: insofar as it refers to facts object of debate, b) useful: since through the declarations of the complainants regarding the form and circumstances in which they subscribed the sworn statement of institutional investor it will be achieved to accredit if they are or are not institutional investors; c) conducive: in the sense that the means of evidence offered are idoneous to prove that the sworn statements of institutional investor are valid and valid as well as accredit the role of the appellant in the alleged public offering. In any case, if the SASP had considered that the evidence was not conducive or unnecessary it would have had to reject it in a motivated manner through the resolution of the appeal for reconsideration, being that the reconduction infringes due procedure and lacks motivation regarding the rejection of the acting of the evidence, so the nullity of the reconduction should be determined and the procedure should be retrotracted to the stage in which the SASP pronounces itself in a motivated manner on the appeal for reconsideration. ESQUEMA adds that the new evidence offered is procedent according to article 177 of the LPAG 8 , which contemplates the possibility of obtaining antecedents and documents, as well as interrogating witnesses. In this sense, the evidence conducive according to the LPAG are not only those of an instrumental nature, but all those contemplated in article 177 of the LPAG, so these are admissible and can also be offered in an appeal for reconsideration, insofar as the LPAG does not limit the type of evidence that can sustain an appeal for reconsideration. In line with the above, the appellant maintains that if the law has not
established any limitation for the offering of new evidence in the appeal for

8 When ESQUEMA in its documents refers to Law No. 27444 (LPAG), the numbering corresponds to the Single Text of Law No. 27444, General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS.

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship reconsideration, the public administration cannot arbitrarily point out additional requirements or only admit some type of evidence, so, in its opinion, any means of evidence established in article 174 of the LPAG are procedent in the appeal for reconsideration, an opinion shared by the author Juan Carlos Morón Urbina, additionally, ESQUEMA points out that the aforementioned evidence could only be acted upon by the public administration, in use of its ius imperium, so they could not be acted upon by the appellant, an opinion also shared by Morón Urbina. Finally, the appellant points out that there is no doubt that the appeal raised was one of reconsideration and that the reconduction carried out by the SASP was improper and illegally carried out with the purpose of leaving them without the capacity to offer evidence or present issues of pure law in an appeal, affecting irreparably their right of defense and to double instance, which originates the nullity of the resolution that resolves the present case, unless the procedure is retrotracted to the moment of the violation of their rights. D. REGARDING THE ABSENCE OF POWERS AND THE IMPROPER ATTRIBUTION OF POWERS BY THE SASP First, ESQUEMA invokes the principle of legality enshrined in number 1.1 of article IV of the Preliminary Title of the LPAG, as well as number 3 of article 139 of the Political Constitution, which guarantees for the administrators due process and effective jurisdictional protection, which includes the right to have a jurisdiction predetermined by law and established procedures. In this context, the appellant maintains that the SASP does not have powers to sanction it, considering that article 31 of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF (hereinafter, ROF SMV) establishes which are the entities under supervision of the SASP, among which ESQUEMA is not found, so it considers that the SASP is not empowered to supervise its public offerings, nor to supervise all the applicable regulation to it nor to sanction it. Likewise, the appellant maintains that according to number 22 of article 32 of the ROF SMV, the SASP can only request information regarding private offerings carried out by entities within the framework of its supervision or by autonomous patrimonies that they administer, ESQUEMA not qualifying as an entity supervised by the SASP nor as an autonomous patrimony administered by an entity supervised by the SASP, so it considers that the SASP does not have powers to request information regarding public or private offerings that it carries out, nor much less to sanction it, even when it is considered that it has carried out disguised public offerings. Subsequently, the appellant indicates that the SMV has a competent body to
sanction issuers and other participants in public offerings: the

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship Adjunct Superintendence of Market Conduct Supervision (hereinafter, SASCM), according to what is stated in numbers 4 and 5 of article 42 of the ROF SMV, since, under the logic of the SASP, ESQUEMA would be an issuer of securities placed by disguised public offering. Finally, the appellant argues that the SASP has irreparably violated the principle of legality by acting outside the powers attributed to it by law, has violated the Political Constitution by violating the principle of predetermined competence by having diverted from the corresponding competence the present procedure, aspects that generate the nullity of plain of the SANCTIONING RESOLUTION so the process must be retrotracted to the stage of preliminary investigations. E. REGARDING THE PRESCRIPTION OF THE POWER TO SANCTION ESQUEMA indicates that the office of imputation of charges was notified to it on December 5, 2025 9 , and that it qualifies the infringements imputed as continued, pointing out as the last action February 26, 2021. Regarding the above, the appellant maintains that the principle of immutability of charges applies, by which the charges determined in the notification cannot be varied by the administrative authority by virtue of the doctrine of own acts, which has been respected by the SASP in the SANCTIONING RESOLUTION, specifying in considerations 85, 302 and 317 that ESQUEMA has been sanctioned for having committed a continued infringement whose last constitutive action occurred on February 26, 2021. Now, the appellant points out that according to article 252 of the LPAG (which regulates the power of the authority to determine the existence of administrative infringements) the start of the computation of the prescription period will be, in the case of continued infringements, on the date of the last constitutive action of the infringement; in this case, February 26, 2021. In the same sense, article 252 states that prescription is suspended when the administrative authority notifies the office of imputation of charges, which in the case of ESQUEMA occurred on December 5, 2024, date on which the prescription period was suspended for the period of twenty-five (25) business days, period that cannot be suspended again. In this sense, the appellant affirms that until December 5, 2024, 1378 days had passed from February 26, 2021 (last constitutive action of infringement). The suspension of the prescription period extended until January 21, 2025, date on which there were 83 days left for the fulfillment of the four (4) years of prescription, fulfilling said period on April 14, 2025. Therefore, ESQUEMA maintains that having accredited the prescription of the sanctioning power of the SASP it corresponds that the hierarchical superior declares it and files the present PAS.

9 The reference must be understood to Office No. 5507-2024-SMV/10.3, notified on December 5, 2024.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría F. ON THE SMV'S OBLIGATION TO CORROBORATE THE REPORTED FACTS The appellant states that this case began based on complaints filed with the SMV regarding alleged non-compliance by ESQUEMA with securities market regulations. It argues that, pursuant to Article 6 of the SANCTIONS REGULATION and numeral 116.1 of Article 116 of the LPAG, the complainants are not parties or procedural subjects in the PAS; consequently, they do not enjoy the rights of an administrative party during the processing of this type of procedure, and therefore, the statements of the complainants are not protected by the presumption of truthfulness. Indeed, numeral 116.3 of Article 116 of the LPAG obliges the administration to carry out preliminary diligence to verify the plausibility of the reported facts, as only then can a PAS begin.

The appellant mentions that the public administration, and in particular, the instructing bodies, cannot take the reported facts as certain, since the complainant does not enjoy the right of presumption of truthfulness; and that the lack of statement by the reported/investigated party regarding the reported facts does not generate a sort of validation or acceptance of their occurrence, nor does it enable or authorize the administrative authority to take these statements as certain. In this regard, ESQUEMA highlights that administrative parties subject to a PAS act with the guarantee and right of the presumption of lawfulness, on the basis of which it is presumed that administrative parties have acted in accordance with their duties until there is evidence to the contrary.

In this context, for the appellant, accepting that complainants act with the principle of presumption of truthfulness and giving full effect to their statements without prior sufficient corroboration violates the principle of presumption of innocence, as well as improperly inverts the burden of proof against the administrative party, obliging it, contrary to law, to prove its innocence. In this sense, ESQUEMA maintains that this error in reasoning is repeated in several points of the SANCTION RESOLUTION.

The appellant concludes that the SMV has failed to adequately corroborate the statements of the complainants and to carry out relevant and sufficient probative activity that proves beyond reasonable doubt the responsibility of ESQUEMA, thereby violating the principle of presumption of innocence and the burden of proof in PAS.

G. ON THE LEVELS OR DEGREES OF SUSPICION
The appellant argues that the principles and guarantees of criminal and procedural law are applicable to the PAS in accordance with the reiterated jurisprudence of the Constitutional Tribunal. In this context, the technical-procedural concept of "suspicion" describes a state of knowledge that increases with each procedural stage.

10 According to what is established in the LPAG, "complainants" are not part of the PAS.

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronic document digitally signed within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and authorship

At a first level, simple initial suspicion – minimum degree of knowledge – arises when the instructing body observes an administratively sanctionable fact, which, based on its experience, allows it to infer that it is probably a fact constitutive of an infraction. This degree of suspicion will initiate preliminary investigations, whether by the authority's own action or by complaint as in the present case.

The second level is revelatory suspicion, which allows the instructing body to formulate an imputation based on what was obtained during preliminary investigations and notify the office of imputation of charges, incorporating elements of conviction that will serve as a premise for the presentation of the report referred to in letter d) of Article 16 of the SANCTIONS REGULATION. In the PAS, this level merges with the third – sufficient suspicion – which requires a more intense level of suspicion.

In this order of ideas, ESQUEMA argues that since there is no preventive detention in the PAS, "strong suspicion" is not applicable; rather, the level of certainty applies directly, that is, when the sanctioning body has full conviction regarding administrative responsibility beyond all reasonable doubt.

The appellant affirms that the SANCTION RESOLUTION transitions from simple initial suspicion to certainty without having carried out any probative activity, without having corroborated the statements of the complainants, without having obtained evidence that proves the reported facts, which determines not only the violation of the principle of presumption of innocence, but also the principles and rights to due process and the right of defense.

Finally, ESQUEMA argues that in the SANCTION RESOLUTION, the same facts that serve as indicators are subsequently considered proven or accredited, without any probative activity having been conducted nor having been motivated how the sanctioning body reached certainty regarding the commission of the infractions.

H. ON THE FACTS NOT PROVEN BY THE SMV
The appellant argues that the SMV has not accredited the ineffectiveness or invalidity of the sworn declarations of institutional investors, nor has it motivated whether these were signed under error, fraud, violence, intimidation, or other causes of ineffectiveness, nor why the complainants would have recorded false facts in a document.

For ESQUEMA, the SMV has not taken into account that legal entities do not have management experience or capacity distinct from the persons who make up the organization, who are the ones who carry out investment activities, risk management, treasury, exchange rate, among others. The fact that such operations are not contemplated in the bylaws of the legal entity does not prevent their realization; therefore, the fact that the SMV disqualifies the complainants as institutional investors, based on the previous argument, lacks support. In this sense, for the appellant, the SMV has not proven whether the legal entities had specialized personnel in investments or finance or whether the natural persons had experience linked to said areas.

Finally, ESQUEMA concludes that the SASP has also not proven that the investors did not have a minimum investment portfolio to be considered as institutional investors, as it did not request information regarding the holding of private offering securities and foreign securities not registered in Cavali, basing its conclusion on partial and insufficient information to break the presumption of lawfulness;

9. That, the arguments of the appellant can be divided into three blocks: (i) lack of competence of the SASP to sanction ESQUEMA; (ii) prescription of the faculty to determine and sanction administrative infractions; and (iii) lack of adequate proof to determine the responsibility of the appellant in the reported facts;

10. That, first, the issue of the competence of the SASP is evaluated, because if ESQUEMA's position were correct, we would have that the SASP could not have pronounced itself in the first instance. In that scenario, it would be pointless to evaluate whether the charging was correct as well as the other arguments of the appellant;

Competence of the SASP

11. That, Article 31 of the ROF SMV defines the SASP as the body in charge of executing the competencies that the Securities Market Law, the Law on Product Exchanges, the Investment Funds Law, the laws on collective fund systems, the respective regulations or any other norm, assign to the SMV in prudential supervision matters related to a group of entities under its supervisory scope, among which ESQUEMA is not included;

12. That, in the second paragraph of the mentioned article, it is established that, with respect to the entities under its scope, its competencies include, as appropriate, among others: matters related to their authorization, revocation, cancellation, registration and exclusion of their securities; as well as actions related to the supervision of public offerings of the securities issued by said entities and the compliance with their information submission obligations, their prudential parameters, the supervision of the compliance with all applicable regulations to the entities under its competence, with the exception of matters reserved for other bodies, as well as the sanctioning of actions that contravene said regulations, with the exception of the supervision and sanctioning of improper practices carried out by said entities and that are under the competence of the SASCM;

13. That, the third paragraph of Article 31 of the ROF SMV also specifies that the SASP is in charge of exercising the faculties of the SMV that the norms assign to it with respect to public offerings of securities issued backed by fiduciary estates, as well as actions linked to the registration and exclusion of said securities and their programs in the RPMV and, if applicable, their registration in the centralized negotiation mechanism;

14. That, Article 32 of the ROF SMV recognizes as specific functions of the SASP, among others, the following: (i) ensure the correct development of public offerings under its scope of competence; and (ii) request from legal entities authorized by the SMV and under its supervisory scope, information regarding the private offerings they carry out or those they carry out on behalf of the estates under their administration;

15. That, on the other hand, Article 42 of the ROF SMV defines the SASCM as the body in charge of executing the competencies that the Securities Market Law, the Law on Product Exchanges, the General Companies Law, the respective regulations or any other norm, assign to the SMV in matters related to a group of entities under the scope of its supervision. The relevant parts are cited below:

“Article 42.- (...)
4. The issuers;
5. The bondholders' representatives and other participants in the public offering;
(...)
With respect to the aforementioned entities, the competencies of the Adjunct Superintendence of Market Conduct Supervision include, as appropriate: actions related to the supervision, control and sanction of said entities for their conduct in the markets under the competence of the SMV, and of the natural and legal persons who participate in them, the supervision of public offerings of securities and the compliance with their information submission obligations, except in the case of issuers that are also entities under the supervision of the Adjunct Superintendence of Prudential Supervision. (...) This body is additionally in charge of exercising the faculties of the SMV that the mentioned norms assign to it with respect to public offerings, registrations and exclusions of securities, and programs in the Public Registry of the Securities Market and, if applicable, their registration in the centralized negotiation mechanism, with the exception of those of competence of the Adjunct Superintendence of Prudential Supervision” (Our emphasis);

16. That, Article 43 of the ROF SMV, when establishing the specific functions of the SASCM, states, among others, the following: “Ensure the correct development of public offerings under the scope of its competence and suspend them, when appropriate”;

17. That, for its part, Article 48 of the ROF SMV contemplates the functions of the General Superintendent of Conduct Compliance (IGCC), in the following way:

“ARTICLE 48.- The General Superintendent of Conduct Compliance is the body in charge of investigating possible infractions to the regulations whose control is under the competence of the Adjunct Superintendence of Market Conduct Supervision, as well as initiating the corresponding administrative sanctioning procedure, acting as the instructing body and proposing the application of the corresponding sanctions. Likewise, the General Superintendent of Conduct Compliance is in charge of investigating complaints referred to matters under the competence of the Adjunct Superintendence of Market Conduct Supervision and proposing the respective pronouncements to it. This General Superintendent depends hierarchically and functionally on the Adjunct Superintendence of Market Conduct Supervision.” (Our emphasis);

18. That, among the specific functions of the IGCC, we have:

“ARTICLE 49.- Specific functions of the General Superintendent of Conduct Compliance are:
1. Investigate indications of possible infractions detected by the General Superintendent of Conduct Supervision or by the Risk Superintendence, to initiate a sanctioning procedure if appropriate;
(...)
1B. Investigate indications of possible infractions by persons under the competence of the Adjunct Superintendence of Market Conduct Supervision regarding regulations on the timely submission of their financial information, annual reports and material events related to the approval of said documents, to which they had access, as well as investigate any other infraction it knows of, and dispose of the archiving of said investigations when appropriate, communicating said fact to the investigated if it previously had knowledge of the start of preliminary investigations;
2. Conduct the sanctioning procedures that derive from possible infractions related to the functions of the Adjunct Superintendence of Conduct Supervision, acting as the instructing body;

3. Investigate the complaints filed with respect to the entities under the supervisory scope of the Adjunct Superintendence of Market Conduct Supervision and, if appropriate, initiate a sanctioning procedure;” (Our emphasis);

19. That, from the normative framework indicated, the following can be concluded: (i) the competence over public offerings is clearly delimited between the bodies of the SMV; (ii) it corresponds to the SASCM to define whether it is a public offering, in the case of issuers that do not have the status of an entity authorized by the SMV; (iii) The SASCM is responsible for supervising public offerings and all those persons who intervene in such offerings;

Intervention in the PAS of an incompetent body.

20. That, having verified the lack of competence of the SASP to investigate and determine the commission of an infraction to the regulations on public offerings by the appellant, it corresponds to analyze the consequences this generates in terms of the validity of the PAS. In this sense, in accordance with Article IV of the Preliminary Title of the LPAG, we have:

a) Violation of the principle of legality 11, insofar as the SASP exercised sanctioning power without express legal authorization. In sanctioning matters, this principle implies that it is only possible to impose sanctions when: (i) the infringing conduct is provided for in a legal norm; and, (ii) the body imposing the sanction has express legal authorization to exercise said power;

b) Violation of due process 12, inasmuch as, according to the organizational structure of the SMV, for these cases the IGCC must intervene as the instructing body and the SASCM as the sanctioning body;

11 Article IV.- Principles of administrative procedure (...)
1.1. Principle of legality.- Administrative authorities must act with respect for the Constitution, the law and the law, within the faculties attributed to them and in accordance with the purposes for which they were conferred.

12 Article IV.- Principles of administrative procedure (...)
1.2. Principle of due process.- Administrative parties enjoy the rights and guarantees implicit in due administrative process. Such rights and guarantees comprise, in an enunciative but not exhaustive manner, the rights to be notified; to access the file; to refute the charges imputed; to expose arguments and to present complementary allegations; to offer and produce evidence; to request the use of the floor, when appropriate; to obtain a motivated decision, based on law, issued by a competent authority, and within a reasonable time; and, to challenge the decisions that affect them.
The institution of administrative due process is governed by the principles of Administrative Law. The specific regulation of Procedural Law is applicable only insofar as it is compatible with the administrative regime.

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronic document digitally signed within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and authorship

21. That, administrative competence thus constitutes a premise for the validity of the administrative act. Numeral 1 of Article 3 of the LPAG 13 provides that every administrative act must be issued by a competent authority in terms of matter, territory, degree, time or amount, being null and void ab initio that dictated by an incompetent body (numerals 1 and 2 of Article 10 of the LPAG 14);

22. That, this aspect is linked to the right to the natural judge or jurisdiction predetermined by law, recognized in numeral 3 of Article 139 of the Political Constitution 15 and developed by the Constitutional Tribunal in STC No. 00256-2018-PA/TC, where it is affirmed that the cited principle extends to administrative sanctioning power, given its quasi-jurisdictional nature, and implies that the protected content of this right encompasses the “conditions that the body in charge of imparting justice in each concrete case must meet in abstract”16, so that it is not enough for the norms to foresee the competence in advance, but that “such assignment is scrupulously respected”17 by the authorities in each matter submitted to their knowledge, because as the Constitutional Tribunal points out, it would be of no use for the laws to define their competence before the start of the processes if, finally, these attributions can be disregarded at the moment of exercising them in the concrete case. That is, the principle of natural judge prevents a person from being subjected to a PAS by an authority other than the one established by law, otherwise due process would be violated;

13 Article 3.- Requirements for the validity of administrative acts Requirements for the validity of administrative acts are:

1. Competence.- To be issued by the body authorized in terms of matter, territory, degree, time or amount, through the authority regularly nominated at the time of dictation and in the case of collegiate bodies, complying with the requirements of session, quorum and deliberation indispensable for its issuance.

14 Article 10.- Causes of nullity
Vices of the administrative act, which cause its nullity ab initio, are the following:

1. The contravention to the Constitution, to the laws or to the regulatory norms.
2. The defect or omission of any of its validity requirements, unless one of the cases of conservation of the act referred to in Article 14 is presented.

15 Article 139.- Principles and rights of the jurisdictional function:
(...)
3. The observance of due process and jurisdictional protection.
No person may be diverted from the jurisdiction predetermined by law, nor subjected to a procedure other than those previously established, nor judged by exceptional jurisdictional bodies or by special commissions created for that purpose, whatever their denomination.

16 7. From that perspective, the constitutionally protected content of the right to the judge predetermined by law or “natural judge” alludes, mainly, to those conditions that the body in charge of imparting justice in each concrete case must meet in abstract. Therefore, the verification of its grievance is a matter of mere normative analysis.

17 8. However, in the opinion of this Tribunal, an adequate protection of the mentioned right necessarily transcends the formal respect for its content; because as important as the jurisdictional power and competence being assigned in advance is that such assignment is scrupulously respected by the jurisdictional bodies in the matters submitted to their knowledge. In effect, it would be of no use for the laws of the matter to grant jurisdictional power to the corresponding bodies and define their competence before the start of the processes if, finally, these attributions can be disregarded at the moment of exercising them in the concrete case. (...).

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría

23. That, in line with the previous interpretation, Article 231 of the LPAG prescribes that “the exercise of sanctioning power corresponds to administrative authorities to whom it has been expressly attributed by legal or regulatory provision, and it cannot be assumed or delegated to a different body”;

24. That, consequently, an act issued by an incompetent authority infringes both the Political Constitution and the LPAG;

25. That, the concurrence of these defects determines that the challenged administrative act is affected by absolute nullity in accordance with item 10.1 of Article 10 of the LPAG. Therefore, it corresponds to declare the nullity of the notice of charges by which the commission of a very serious infringement was imputed to ESQUEMA, as well as all subsequent acts;

26. That, regarding the appellant's request to revert the procedure to preliminary inquiries, we must indicate that, upon declaring null the notice of charges by which the present PAS was initiated (which is processed under File No. 2024050031), only the archiving of the same corresponds;

27. That, since the nullity of the entire PAS must be declared, it is unnecessary to issue a ruling on the other allegations of ESQUEMA; and,

28. Being subject to what is provided in item 26 of Article 12 of the Regulation on Organization and Functions of the Securities Market Superintendency, approved by Supreme Decree No. 216-2011-EF, as well as by item 2 of Article 7 of the “Policy on dissemination of normative projects, laws of a general nature, regulatory agenda and other administrative acts of the SMV”, approved by SMV Resolution No. 014-2014-SMV/01;

RESOLVES:

Article 1°.- Declare the nullity of Notice No. 5507-2024-SMV/10 and all subsequent acts contained in File No. 2024050031, including the Superintendent Resolution No. 023-2025-SMV/10, for the reasons set forth in the reasoning part of this resolution.

Article 2°.- Order the archiving of the present administrative sanctioning procedure.

Article 3°.- Consider the administrative route exhausted.

Article 4°.- Transmit this resolution to Esquema Investment S.A.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría

Article 5°.- Order the dissemination of this resolution on the institutional website of the Securities Market Superintendency on the Unique Digital Platform of the Peruvian State (www.gob.pe/smv).

Register, communicate and publish.

Zósimo Juan Pichihua Serna
Superintendent of the Securities Market