Guía sobre la nueva Ley Fintech en Chile. Entérate si tu Empresa será regulada por la nueva Ley Fintech en Chile, sus deberes y obligaciones y obtén asesoría personalizada.
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What is a Fintech company?
Financial Technology (Fintech) companies are those that use the application of software and other technologies to banking/financial services.
The Chilean fintech law defines them as:
"All types of activities involving the use and application of innovation and technological developments for the design, offer and provision of financial products and services."
What is the Fintech Law?
This law comes to give recognition and regulation to the new business models and financial actors that exist in our country.
The objective is to regulate all companies that, through technology, provide financial services by technological and digital means, so as to encourage the provision of these services through these means, using the regulation as a seal of security and legal certainty for all users in the following way:
- Promoting the participation of financial entities.
- Improving the financial inclusion of individuals and SMEs.
- Providing greater protection to the investors and clients of these companies.
- Promote competition through the incentive of obtaining the "Regulated and supervised company" seal.
- Greater powers to bodies such as the CMF and UAF for oversight and regulation.
Who is regulated by the Fintech Law in Chile?
The Fintech Law establishes a series of services to be regulated:
a) Crowdfunding Platforms (Crowdfunding Platforms)
The law defines them as:
"Physical or virtual place through which those who have investment projects or financing needs disseminate, communicate, offer or promote those projects or needs, or the characteristics thereof, and contact or obtain contact information of those who have available resources or the intention of participating in or satisfying those projects or needs; in order to facilitate the materialization of the financing operation."
These platforms that are regulated by law are called Crowdfunding Platforms.
These are a form of project financing that excludes the participation of entities such as banks, for example, to obtain resources through technological means, in pursuit of a specific project, where individuals or legal entities contribute to the growth and creation of an idea or project.
There are several forms of Crowdfunding:
- Financial Crowdfunding
- By way of debt: A mechanism in which the investors deliver as a "Loan" a sum of money that will be repaid with interest.
- By way of capital: A mechanism whereby investors become shareholders and receive as a return the profits generated by the project.
- Non-financial or community crowdfunding
- Reward: Contributors receive a non-financial reward in exchange for their contribution.
- Donation: Monetary contributions to projects without retribution of any kind. Generally used for non-profit projects.
b) Alternative transaction systems.
The law defines it as:
"Physical or virtual place that allows its participants to quote, offer or trade financial instruments or publicly offered securities, and that is not authorized to act as a stock exchange in accordance with Law No. 18,045 or as a commodities exchange in accordance with Law No. 19,220."
c) Credit and investment advisory services.
- Credit counseling: The law defines it as:
- "The provision of evaluation services or recommendations to third parties regarding the capacity or probability of payment of natural and legal persons or entities, or their identity, for the purpose of obtaining, modifying or renegotiating a loan. or financing"
- Particularities: Obligation to register in the RAI Registry.
- "The provision of evaluation services or recommendations to third parties regarding the capacity or probability of payment of natural and legal persons or entities, or their identity, for the purpose of obtaining, modifying or renegotiating a loan. or financing"
- Investment advisory services: The law defines it as:
- "The provision of appraisal services or recommendations to third parties regarding the advisability of making certain investments or transactions in publicly offered securities, financial instruments or investment projects."
- Particularities: Flexible requirements.
- "The provision of appraisal services or recommendations to third parties regarding the advisability of making certain investments or transactions in publicly offered securities, financial instruments or investment projects."
In both cases, it does not include pension advisory services, pension advisory entities, pension financial advisors or financial advisory entities referred to in Decree Law No. 3,500 of 1980, or sales agents of insurance companies.
d) Custody of financial instruments.
- The law defines it as:
"Holding in one's own name on behalf of third parties, or in the name of third parties, financial instruments, money or currency that come from flows or from the disposal of financial instruments held in custody, or that have been delivered by them for the acquisition of financial instruments or to guarantee transactions with such instruments."
- Highly regulated activity with higher requirements and standards than other activities due to its level of risk.
It regulates the custody of financial instruments such as:
"Any security, contract, document or incorporeal property, designed, employed or structured for the purpose of generating monetary income, or representing an unpaid debt or a virtual financial asset ."
For the purposes of the fintech law, it will be considered a financial instrument:
- Securities not registered in the Securities and Foreign Securities Registry of Law No. 18,045, derivative contracts, contracts for difference, invoices, among others, regardless of whether their support is physical or electronic.
They will not be considered financial instruments for the purposes of this law:
- Publicly offered securities, money or currencies, regardless of whether their support is physical or digital.
Within the regulatory perimeter we can evidence an increase in the requirements and obligations for these activities. The custody of crypto-assets can be incorporated within this category, however, within this law the issuance of crypto-assets is not regulated.
e) Order routing and intermediation of financial instruments.
- Brokerage of financial instruments: "carrying out activities of purchase or sale of financial instruments for third parties".by any of the following ways:
- Acquisition for own account of financial instruments, with the prior intention of selling or buying those same instruments to a third party.
- Acquisition or sale of financial instruments in the name of or for a third party
- Order Routing: The "Channeling of orders received from third parties for the purchase and sale of publicly offered securities or financial instruments to alternative transaction systems, securities intermediaries or commodity exchange brokers."
Who regulates Fintech companies in Chile?
The CMF will have regulatory and supervisory powers over the services regulated by the Fintech Law.
It will mainly control and regulate companies that integrate technology and finance into their systems.
Based on the provisions of the Fintech Chile Law , the Financial Market Commission will be responsible for overseeing the provision of the aforementioned services .
For this purpose, it shall have the powers conferred upon it by this law and its organic law.
- It includes the power to adopt preventive or corrective measures deemed necessary for the due protection of investors.
For these purposes, the CMF may require the entities registered in the Registry of Financial Service Providers to deliver the information necessary to supervise compliance with the requirements.
What are the effects of being regulated by the Fintech Law in Chile?
Principal Obligations:
There are a series of obligations in the Law, which allow us to know the changes that it will generate in our legal system.
Among the obligations to which a service may be subject are the following:
1. TO BE INCLUDED IN THE REGISTRY OF FINANCIAL SERVICE PROVIDERS
Entities that intend to provide one or more of the services regulated by the Fintech Law must register in the Registry of Financial Service Providers.
This incorporation is mandatory and is not automatic.
The procedure to be included in this registry will be carried out by means of an application to the Financial Market Commission, based on the instructions given by General Rule 493 of February 3, 2023, accompanied by the following information:
A) Identification of the entity:
- Partners (especially senior partners)
- Legal representatives
- Corporate documentation of the company appropriate to the type of service to be provided.
- It is important to adapt your company to a single line of business for one or more Fintech services. For each fintech service a different authorization must be made.
- Documentation up to 10 years backwards including:
- Deed of incorporation.
- Deeds of modifications of all kinds, with their inscriptions and publications.
- Accreditations of validity and annotations of the company.
B) URL of the web site in case you have one.
- For these purposes it is very important to comply with all risk management standards, duties of information to users and everything related to the processing of personal data.
- Prior to your registration, it is recommended that the following points of your websites be brought into compliance with the fintech law:
- Terms and Conditions
- Cookie Policy
- Description of services
- Responsible for the provision of the service
C) Sworn statement that neither the entity nor its principal partners, directors or
administrators are in any of the circumstances referred to in
second paragraph of Article 6 of the Fintech Chile Law.
D) Affidavit that the entity is not a debtor in a
bankruptcy liquidation proceeding.
E) Identify the service or services regulated by the Chilean Fintech Law that it intends to develop.
- It is very important to analyze the service to which they will be assigned.
- It is important to comply with the registration of the actual service to be provided. The requirements change depending on the service.
- There are services that lead to confusion between one or the other, a technical analysis is recommended.
F) Affidavit of truthfulness of information.
G) SEIL user qualification, in accordance with the instructions set forth in General Rule No. 314.
Registration and authorization must be requested from the Commission within a maximum period of twelve months from the entry into force of the General Rule that regulates the procedure and details of incorporation. That is, until February 3, 2024.
Notwithstanding the foregoing, the CPM shall have the authority to exempt certain providers from complying with certain pre-established requirements.
Mechanisms can be established to allow compliance in the least burdensome way possible, giving new actors the possibility to operate.
All of this at the discretion of the provisions of the General Rule to be issued by the CMF and based on the principle of proportionality.
2. INFORMATION DUTIES
Another of the effects of being regulated by the new Fintech law is that new reporting duties will arise for obligated entities, which are:
2.1 Provide adequate security, access and operating conditions for its systems or infrastructure, in accordance with the activity and processes carried out on the platform.
This obligation may result in modifications to the provision of its services that allow it to comply with the standards determined in the General Standard, such as:
- Report the handling and collection of personal data.
- Adaptation of the terms and conditions, cookies and other policies.
- Regulation and conditioning of processes and payment systems, etc.
Notwithstanding the foregoing, due to the great power conferred to the Financial Market Commission, the general rule is empowered to suppress obligations or establish different and more detailed obligations than those already mentioned.
2.2 Report, according to the procedure to be established, any interruptions or contingencies that may occur in its systems.
Within the management and control of these companies, the Fintech Chile law provides for the obligation to have cybersecurity policies that allow them to obtain risk reports necessary for the proper performance of regulated entities and the knowledge of possible failures that may occur and that may constitute a possible risk of leakage or violation of personal data.
It also obliges the company to guarantee the duty to provide adequate safety conditions for its platforms and to prevent any type of leakage or improper handling of the platform users. This duty is directly connected to 2.1.
2.3 Duty to report in accordance with the economic, financial and legal situation of the entity.
This duty is directly related to the fulfillment of basic tax obligations.
The obligation to report to the Internal Revenue Service annually various information, such as the following, is maintained:
- Report the balances of financial instruments held in custody by its customers;
- Transactions carried out on own account or through an intermediary in respect of such instruments.
The objective of this duty is to have an efficient tracking of the operations that can potentially be subject to the application of the tax rule. For this purpose, it is necessary to evaluate the specific case and analyze what information of the entity must be provided.
Eventually, the General Standard may establish the creation of new registries or declarations to which your company, as a regulated entity, must adhere.
3. CORPORATE GOVERNANCE AND RISK MANAGEMENT OBLIGATIONS
The Fintech Chile law provides for the obligation to comply with certain standards of risk management and corporate governance by the company that executes such activities, requiring for example:
3.1 Constitution of Guarantees
Companies that have a high number of clients and/or users (Risk Companies) will be obliged to provide guarantees for the purpose of:
| "To be responsible for the correct and full compliance of all the obligations arising from its activity and, especially, for the eventual damages that may be caused to its clients due to its actions or omissions in the rendering of services. clients due to their actions or omissions in the rendering of services". |
Notwithstanding the above, the law allows companies that have equity below the minimum required standards to comply with this obligation through co-financing.
- The co-financing is executed through an entity of the same nature.
- It is bound by the same terms as the company performing the service.
It should be noted that all the regulations, amounts and details of the guarantees (and their co-financing if necessary), together with the parameters for measuring the obligors, will be subject to the provisions of the General Standard.
Guarantee obligations will not be set on a service basis, but will be evaluated on a case-by-case basis, so that all companies can be regulated and meet their requirements based on the volume of their business.
3.2 Minimum Equity
The Chilean fintech law requires companies that comply with the character of Venture Companies to establish a minimum equity to be determined, as provided by law, as follows:
"The entities that provide brokerage or custody services for financial instruments, must permanently have a minimum equity equal to or greater than the greater of: A) 5,000 UF; or B) 3% of the assets weighted by financial and operational risks of the entity, calculated in accordance with the method established by the Commission by means of a general rule". |
The standard provides two options for calculating the minimum net worth obligation, and it is not voluntary to choose one or the other.
It will be obligated to choose the higher of the two options.
- That is to say, if 3% of the weighted assets (Letter B) is less than 5,000 UF (Letter A), then the minimum of Letter A will apply or if 3% exceeds this, then the provisions of Letter B will apply.
In addition, it is regulated that the entities that present deficiencies in the compliance with their risk obligations must increase the minimum equity percentages by up to 6% in addition to the general rule mentioned above.
- The law considers that a company has a deficiency in the fulfillment of its obligations when it has a Cybersecurity Deficit, it does not have the constitution of guarantees in the required terms, etc.
Likewise, it requires that in the event that the minimum equity of the entity is lower than the minimum established, this must be reported as soon as possible to the Financial Market Commission, this being a term fully delivered to the General Standard or, failing that, at the discretion of the supervisory body.
- This reporting obligation entails an obligation to present a regularization plan with concrete measures to combat and remedy the equity deficit within a period of no more than 5 calendar days, in order to comply with its normal operation.
- This situation entails the prohibition to carry out any activity that has the potential to deepen or deteriorate the entity's equity deficit.
Within the minimum net worth requirement, we must also adhere to the specific case, since the CMF, at the time of requiring a minimum net worth, will calculate the business volume and evaluate the obligatory nature of compliance with this requirement.
3.3. Obligation to comply with cybersecurity standards
These obligations are all those duties indicated in the information duties, which will be decisive for the purpose of establishing and fixing the risk level of the operations and, therefore, measuring the level of minimum equity and guarantees to be provided.
3.4 Compliance with legal liability standards for legal entities.
Among the new duties contained therein, it is worth mentioning the incorporation of the entities regulated by this law as obliged subjects to be included in the Registry of Entities Supervised by the Financial Analysis Unit.
- It is necessary to designate a compliance officer who will be obliged to inform the Financial Analysis Unit every 3 months, a list of the suspicious operations that are detected in the course of the entity's activities, these operations are defined in the law as follows:
| "A suspicious operation is understood as any act, operation or transaction that, in accordance with the customs and practices of the activity in question, is unusual or lacks apparent economic or legal justification or could constitute any of the conducts contemplated in Article 8 of Law No. 18.314, or is carried out by a natural person or legal entity. Article 8 of Law No. 18,314, or is carried out by a natural or legal person that appears in the legal person listed in the lists of any resolution of the United Nations Security Council, whether it is carried out in an isolated or reiterated manner." |
- It also establishes the obligation to create special registers detailing any cash movement and/or operation of a sum greater than 10,000 USD, in order to prevent the obtaining of resources from bribery, money laundering, financing of terrorism, etc.
The Financial Analysis Unit may require background information on the operations when it deems it convenient, with the purpose of encouraging the responsibility policies of legal entities, which evidently implies greater responsibilities for their business.
What are the consequences of non-compliance with these obligations?
I. Cancellation of Enrollment:
This sanction is established with the objective of diluting any activity that constitutes a serious infringement under the provisions of the Fintech Chile Law.
Article 14 of the fintech law provides that the cancellation of the registration in the Registry of Financial Service Providers will constitute a sanction for serious breaches of obligations, which can be summarized as follows:
- Failure to register in the Registry of Financial Service Providers or doing so under deficient parameters.
- Failure to comply with the regularization plan, termination of operations and transfer of clients when the entity does not comply with the minimum equity and its permanent closure is requested.
- Failure to provide a guaranty or the provision of a guaranty in an amount lower than the required amount.
- Presentation of maliciously false, incomplete or misleading information to the Commission regarding the entity's overall situation.
- Delivery of false information to users regarding the information and security of the processes.
- Making fictitious quotations or transactions with respect to any financial instrument or effecting transactions or inducing or attempting to induce the purchase or sale of financial instruments, by means of deceit or fraud.
- Carrying out activities other than those regulated by this Fintech Law or those that, being regulated, have not been authorized in accordance with the procedure established in Article 7 of the Fintech Law.
- Those who have not requested the authorization to carry out any of the activities regulated by the present fintech law within a period of twelve months from the corresponding registration.
- Those entities that become debtors in bankruptcy liquidation proceedings.
In the event that the Commission initiates an administrative sanctioning process against the applicant, this will result in the suspension of the applicant's registration or application for registration until said process has been completed, or will be rendered null and void, in the event that the registration is cancelled as a sanction for the serious infractions mentioned above.
II. Aggravating factors
The fintech law will consider as an aggravating circumstance in the crimes of frauds, the fact of committing them being subject to the supervision of the Commission and on the occasion of the provision of the services regulated in the present law.
It also provides that the original penalty for these crimes shall be increased by one degree when they are committed by someone who should be registered but pretends to be registered in the Registry or supervised by the Commission.
COMPARATIVE SCHEME OF OBLIGATIONS BY SERVICE:
We summarize in simple terms the duties and obligations of each type of service incorporated by the Chilean Fintech Law:
Do you need advice?
Contact us:
Melani Zuñiga Agüero - Associate : Melani.zuniga@nss.cl : +56932619522
They present in a clear way the information on this topic, and it is very useful for those who do not know about it!
Great reading! Thank you very much for the information
An interesting guide, easy to read and understand, good job!