On 31 March 2021, Resolution SMV N° 06-2021-SMV/01, was published in the newspaper El Peruano, through which the Superintendency of the Stock Market (SMV in Spanish) approved the 'Guidelines for the Implementation and Operation of the Prevention Model' (hereon, 'Guidelines').
The Guidelines establish the rules that, voluntarily and referentially, legal persons may follow for the design, implementation and operation of their prevention models, in line with the provisions of Law No. 30424, which regulates the administrative responsibility of legal persons (hereon, 'Law') and its regulations. Let us recall that, in accordance with the provisions of the Law, legal persons who employ an appropriate prevention model may be exempted from liability in the event a crime is committed for their benefit.
The Guidelines are approved after two preliminary versions (projects) issued in 2019 and 2020, which were brought to the attention of the citizens for their comments. While those preliminary documents provided guidelines on how to implement prevention models, we would like to emphasize that the Guidelines have a more practical approach, providing examples of what actions to take. In this alert, we include the Guidelines' main points.
As a presupposition of an ideal prevention model, the Guidelines refer to the commitment, leadership and firm support of the governing body, stating that it might manifest itself in: (i) the adoption of the zero tolerance policy regarding corruption; (ii) the active participation (as participants or speakers) in training; (iii) the allocation of budgetary funds for the purchase of technological equipment and/or materials to ensure the operation of the prevention model; and (iii) the creation of incentives to ensure compliance with the above model.
As for the minimum elements that a prevention model must have to be considered adequate, the Guidelines contain a reference list of actions for implementation, the main ones being the following:
Identification, assessment and mitigation of risks
Preliminary stage: Designate a person (employee or external advisor) who will be in charge of the implementation (support: employment contract or service provision); identify processes/areas whose management through the prevention model is necessary, approve road map or risk identification and management policy.
Policies or incentive scheme: economic (promotions, bonuses, training, etc.) or dissuasive (publication of disciplinary measures or sanctions).
Application of disciplinary measures:
Dissemination and regular training
Continuous evaluation and monitoring
In addition to referring to the minimum elements, the Guidelines emphasize the importance of carrying out due diligence processes, specifying that this must not only be done before the contractual relationship, but whenever necessary (e.g., if an event or piece of news that involves such persons arises). Likewise, this must be done if a legal person wishes to develop new activities, introduce new products or services to the market and make use of new technologies, among others.
Finally ,the Guidelines, like the regulation, highlight the importance of keeping evidence (mainly documentary) of the actions carried out in order to prove to the SMV that the prevention model is adequate and can be used to mitigate risks faced by the legal person.
You can find the full text of the Guidelines here.
We trust that this information is relevant to you and your company. If you require a deeper understanding of the topic, do not hesitate to contact us.
 Los Lineamientos han sido elaborados tomando como marco de referencia no solo la citada Ley, sino también estándares internacionales de la experiencia extranjera (Estados Unidos, Reino Unido), organismos multilaterales (Naciones Unidas, OCDE) y diversas normas o documentos de gestión (ISO 37001, ISO 31010, ISO 19600, UNE 19601, COSO ERM 2017).