On September 9 2013, the General Resolution No. 622 (the “Resolution”) of the National Securities Commission (Comisión Nacional de Valores) (“CNV”) was published in the Official Gazette. The Resolution approves, under the Capital Market Law No. 26.831 and the issuance of the Implementing Decree No. 1023/2013, the new CNV rules (“NT 2013”). Its rules applicable to trusts shall be treated in this article.
One of the main amendments introduced by the NT 2013 rules is to eliminate the classification of “ordinary public trust” and introduce two new categories of trustees, along with the corresponding registries created for registration purposes; namely, (i) the Financial Trust Registry, and (ii) the Non Financial Trust Registry (the “Registries”).
The NT 2013 rules provide that the following may act as trustee: financial entities authorized to act as trustees under the terms of the Financial Entities Law No. 21.526, and corporations established in Argentina. The following are removed from the list of subjects: values boxes, foreign companies which demonstrate the establishment of a branch or representative office in Argentina, and finally the representative of the bondholders under the terms of article 13 of the Negotiable Obligations Law No. 23.576.
For the purpose of enrolling in the respective Registries, NT 2013 rules introduce new requirements. In addition to fulfilling the existing requirements, trustees must submit:
1. Phone and fax number, and e-mail address.
2. Location of the trade books or accounting records.
3. The social contract duly registered at the Public Registry of Commerce. In its purposes, the performance of the Company as trustee in Argentina must be included.
4. Certified copy of the register of shareholders to the filing date.
5. Applicable net assets accreditation. It is required a net assets of at least six million pesos (AR$6.000.000). A minimum of the fifty per cent (50%) of the Minimum Net Assets shall comply with the requirements laid down in Annex I Chapter I of Title VI (of requirements to be observed in minimum compensation in mandatory guarantee funds, and in guarantee funds for client claims).
6. Filing of financial statements of a no longer than five (5) months prior to the start of the process of registration before the CNV, which must be examined by an independent public accountant in accordance with the auditing standards required for fiscal years, and it shall count with the corresponding legalized signature by the professional council.
7. Filing a special report with legalized signature of an independent public accountant, certifying that the company has its own administrative organization and that it is adequate to provide services as a trustee.
8. Submission of a sworn statement of the absence of tax and/or pension obligations pending of compliance.
9. Submission of a sworn statement of money laundering prevention and terrorism financing. It must be signed by each of the members of the administrative and control bodies reporting that they have no convictions for money laundering and/or terrorism financing, that they are not included in any terrorists list or terrorist organization lists issued by the Security Council of the United Nations.
10. Report full details of external auditors, certificate of enrolment in the register of external auditors of the CNV, and certified copy of the minutes of the designation as auditor.
11. Investor Protection Code.
Additionally, the NT 2013 rules state that entities may request enrolment in other compatible registries. The CNV shall register them in other categories of agents compatible with its activity, subject to compliance with corresponding provisions in each case.