On July 10, 2023, the Financial Market Commission (“CMF”) invited the different actors of the financial market to participate in the public consultation process that will be carried out from that date until August 4, 2023, on the regulatory proposal that establishes the minimum mentions that should be included in the policies of regular operations and that regulates the public disclosure of related party transactions (hereinafter, “RPOs”) that have been carried out by open and special corporations (the “Regulatory Proposal”).
This, based on Law No. 21.314 of April 2021, which amended several legal bodies in order to strengthen confidence in the financial markets and introduced amendments to Law No. 18. 046 of the Corporations Law (“LSA”) regarding RPOs, particularly by virtue of the provisions of Article 147 of the LSA, granting powers to the CMF to establish by general rule the minimum conditions to which the policy of usual operations must refer and, in turn, to require open and special corporations to disclose the details of the operations with related parties that have been carried out.
The purpose of the Proposed Regulation is to raise the standards of the RPOs, in order to improve the criteria that the entities will take into consideration for the purpose of considering certain operations as habitual and ordinary in consideration of the company’s line of business, and also to make transparent which operations have been carried out within the framework of the policy of habitual operations and which outside of it.
The proposal establishes that the standard operating policies of publicly traded companies must include as a minimum:
1. Date of approval of the policy by the board of directors and date of the last modification to it.
2. Justification of the need to have a policy of habitual operations considering the particular case of the company.
3. Characteristics and conditions to be met by the transactions in order to be carried out under the regularity policy, indicating the counterparties with which the transactions will be carried out, the nature of each type of transaction considered regular, other restrictions determined by the Board of Directors and the maximum amount per transaction.
4. Characteristics of the transactions that may not be considered ordinary by virtue of the regularity policy.
5. Control mechanisms to which the transactions intended to be carried out or that have been carried out under the policy shall be subject.
6. Responsible for compliance with the control mechanisms indicated by the policy.
7. Disclosure mechanisms.
Regarding the dissemination of information, the proposal establishes that companies must prepare a quarterly report of all transactions made with related parties and disseminate it on their website.
In addition, all transactions carried out under the regularity policy, the knowledge of which is relevant to the investment decisions of the shareholders or the general public, must be disclosed by means of a material fact.
The Proposed Regulations establish that the provisions will become effective from the six-month period following the issuance date, so that the companies will have a period of 6 months to comply with the regulations.
As of that date, the customary policies that do not comply with the provisions of the regulations will cease to have effect, and therefore, in order to remain in effect, they must be adjusted and approved by the board of directors before that date.