Challenging regulatory requirements imposed by SMV for investment companies. Estudio Olaechea has assisted Pandero, Maquisistema, and El Clan—collective fund management companies (EAFCs)—in an administrative proceeding before the National Institute for the Defence of Competition and the Protection of Intellectual Property (INDECOPI) to challenge regulatory requirements imposed by the Securities and Exchange Commission (SMV).
New corporate governance regulations impacting EAFCs: Between 2019 and 2020, the SMV issued seven regulations imposing corporate governance requirements on EAFCs, including the mandatory establishment of a board of directors, even for private closed corporations where a board is optional. Additionally, restrictions were placed on the appointment of independent directors, limiting the ability of EAFCs to select board members based on internal business needs.
Challenging unjustified bureaucratic barriers: Estudio Olaechea led the bureaucratic barriers elimination procedure before INDECOPI, demonstrating that the SMV regulations were not based on objective necessity or a clearly identified regulatory risk. The firm provided evidence that the requirements arbitrarily restricted business operations, creating disproportionate compliance costs without tangible benefits.
Overturning unjust regulations: Our team successfully argued that these regulations constituted unjustified bureaucratic barriers, leading to their annulment, and that these measures violated economic freedom and lacked a legally justified purpose. INDECOPI’s trial court and appellate court decisions confirmed that the seven regulatory measures lacked reasonableness and proportionality, ordering their inapplicability to the clients.
Establishing precedent for evidence-based regulation: The case set a precedent in regulatory oversight, reinforcing the principle that public authorities must justify restrictions on private enterprise with concrete evidence rather than hypothetical concerns.
Latest development: With our assistance, the clients obtained favourable decisions. We continue to support the client in related matters.
