Actualidad Peru

Guidelines for the classification of directors as independent

SMV Resolution 033-2018-SMV/01

On 3 December 2018, the Securities Market Authority (SMV) put out for public consultation the "Guidelines for classifying independent directors" Bill, which sets minimum criteria that companies (with at least one security registered with the Public Securities Market Registry) must bear in mind when classifying a director as independent; without prejudice to additional criteria that companies may adopt of their own accord.

This bill comes in response to the need for a unified set of criteria and to make it easier for investors to make comparisons between the degree of board members' independence, since different criteria are currently being applied in companies in the Peruvian market. We have summarized the main guidelines below:

Professional experience and probity

The regulation stipulates that independent directors must have professional experience, be of good character and be economically solvent, so they will have to:

  • Confirm that they comply with the requirements set by the company,
  • Have a track-record of compliance with ethical principles and good practice, with no penalties in the last 10 years for serious or very serious breaches, and
  • Not have debts that have been unpaid for more than 3 months; no more than 50% of these debts may be in default, written off or any equivalent status in the financial system or in any credit rating agency; and not have more than 50% of their assets affected by injunctions.

No links to the company, its shareholders and its senior management

Furthermore, they must have no connections to the company, its shareholders or senior management. The criteria for such connections include:

  • An independent director cannot have been a director, member of senior management, employee of a company in the same economic group, unless 5 years have passed since this was the case. As an exception to this criterion, an independent director can also be an independent director of other companies in the economic group
  • An independent director cannot have been an independent director of the company or of any company in the same economic group for more than 10 years or alternating for the last 15 years
  • An independent director cannot have been a partner or employee of the external auditors of the company or of any other company in the same economic group in the last 3 years

Participations in other companies

Directors may not participate in the capacity of “independent directors” in more than 5 companies having at least one security registered on the Public Securities Market Register. This threshold ensures independent directors have enough time to fulfill their duties effectively.

In this way, the SMV aims to standardize certain qualitative conditions that directors must meet in order to be classified as independent in companies that are listed on the Peruvian market, which will give investors a benchmark for their comparative analyses.

The regulatory body is currently compiling the comments and/or suggestions received, in order to make the necessary amendments. If the bill is passed, the guidelines will have to be taken into consideration in the 2019 financial year and must be followed when the report on Compliance with the Good Corporate Governance Code for Peruvian companies is put together for presentation in March 2020. We should point out here that these reports are submitted every year to the SMV as a regulatory requirement and after approval by the Annual General Meeting of listed companies, forming part of each firm's Annual Report.