Background
Through Title IV of the Emergency Decree No. 013-2020-JUS/DGTAIPD (hereinafter, the “Decree”) rules were established to promote and encourage crowdfunding as an instrument that promotes greater access to financing.
Regulation
The Decree regulates and supervises: (i) crowdfunding itself; and (ii) companies authorized to manage crowdfunding platforms.
According to the provisions of the Decree, crowdfunding is an activity where natural persons domiciled in Peru or legal entities incorporated in Peru seeking funds on their behalf (the “Recipients”) are connected, through a platform, to natural persons, legal entities or collective entities that are interested in obtaining financial returns (the “Investors”).
The following are types of crowdfunding that are regulated:
- Equity and Debt-securities crowdfunding; and
- Crowdlending (also known such as peer-to-peer lending).
Likewise, management of the crowdfunding platforms can only be performed by (i) corporations incorporated in Peru and authorized by the Superintendence of Securities Market (“SSM”) whose corporate purpose is the management of crowdfunding platforms; (ii) corporations incorporated in Peru that are supervised by the SSM and have obtained authorization from the SSM; and (iii) the companies in the financial system included in article 16 of Law No. 26702[1] through a subsidiary.
Additionally, the Decree establishes obligations for companies responsible for the management of crowdfunding platforms, such as: a) those with methodologies and criteria for evaluating and selecting crowdfunding projects to be offered through platforms; b) to verify the identity of the Recipients and Investors; c) to manage their operational risk, deploying business continuity and integrity plans for their systems to avoid cyber-attacks; d) to adopt policies for the prevention of money laundering and financing of terrorism, among others.
The Decree establishes conditions applicable to crowdfunding such as:
- The Recipients must make requests on their own behalf for personal and/or business projects that are developed entirely in Peru, with some exceptions determined by the SSM.
- Crowdfunding projects must: (i) be directed to the Investors; (ii) have a financing objective; and (iii) have a maximum collection term.
- Recipients may not publicize their crowdfunding projects on more than one platform simultaneously.
When will these provisions enter into force?
The provisions of the Decree shall become effective on April 20, 2020. Likewise, the SSM will have until October 17, 2020 at the latest to issue the corresponding crowdfunding regulation.
In that sense, the crowdfunding platforms providing the crowdfunding services regulated by the Decree must comply with the provisions mentioned above within the timeframe established by the SSM. Failure to do so may result in the imposition of technological restrictions to block the services provided through the platform.
[1] Law No. 26702, General Law of the Financial and Insurance System and organic law of the Superitendency of Banking and insurance.
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