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Prólogo
(Pontificia Universidad Católica del Perú, 2024-11-19) Saavedra Gil, Rony; Martorell Zulueta, Purificación
No presenta resumen.
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Evaluación ex post de la regulación:
(Pontificia Universidad Católica del Perú, 2024-11-19) Montes Tapia, Karina
This article offers an ex post analysis of the regulatory obligation to include advertising warnings on processed foods, established in the Healthy Food Promotion Law for Children and Adolescents, Law N 30021, more than ten years ago. Through a review of the literature and available information, a retrospective analysis of the regulation is conducted with the purpose of determining whether the involved agents are complying with the established requirements and reacting as expected, and whether all of this is being evaluated by the competent authorities. Key lessons will be extracted for analyzing regulations, the identified information limitations will be discussed, as well as the role of public entities in this context and the limitations of the information identified will be discussed, as well as the role of public entities in this context with a focus on better regulation.
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¿Cuánto fuego hay detrás del humo?: la impronta societaria en torno a la regulación sobre asociaciones sin fines de lucro
(Pontificia Universidad Católica del Perú, 2024-11-19) Bermúdez Medina, Ramón Mariano
Through this paperwork, we explore the current development of nonprofit entities as a social phenomenon and highlighting their economic relevance within national productive and competitive activity. However, its legal organization both internal and external emerges as a fundamental piece of its evolution and role, which in many cases replicates several institutions and legal principles from the business corporation model to come together in an efficient consolidated mechanism whose objective provides practicality. the execution of their ordinary activities and social purposes without this implying that both figures maintain a similar nature.The role that nonprofit entities achieve today especially union corporation privileges the development of economic activities and the promotion of interrelation with the government, which is why we must give them the prominence and real importance that they represent.
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Los principios reparadores de la imposición forzosa en los planes de reestructuración y la libre competencia
(Pontificia Universidad Católica del Perú, 2024-11-19) Sanjuán y Muñoz, Enrique
This paper analyzes the rules and principles applicable to restructuring plans from the double perspective of the plans that are imposed through the CCCD (Cross-Class Crawn-Down) rule and those that can be considered consensual insofar as they do not involve an interclass affectation within such plans. It also analyzes the possibility of establishing a system that allows a control of these rules either ex officio or at the request of a party and the effectiveness that can be achieved with one, the other or mixed systems. A defective control or lack of control of these could affect, in the analyzed area, free competition and therefore unduly favor some over others, both in a situation of business crisis and restructuring as well as those that are not in such a situation.
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Desnaturalización de los procedimientos concursales: pagos de créditos concursales fuera de concurso
(Pontificia Universidad Católica del Perú, 2024-11-19) Barboza Flores, Juan Ramón
This article addresses the problem noted in the Peruvian Bankruptcy Law: the bankruptcy authority has been unable to neutralize payments of bankruptcy credits made outside the rules of bankruptcy. We are faced with the need for debtors to continue with business activity, to generate greater wealth and not increase the crisis they are going through, while we are faced with the possible denaturalization of the bankruptcy procedures. To address this problem, the author will propose the implementation of a regime of action that allows the balance between the need for payments and the bankruptcy procedure.
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La prohibición de asistencia financiera en las sociedades de capital: su incumplimiento a la luz de la actual jurisprudencia en España
(Pontificia Universidad Católica del Perú, 2024-11-19) de Vivero de Porras, Carmen
The prohibition of financial assistance by capital companies to a third party to acquire its own shares or participations (as well as those of another group or parent company) contained in articles 143.2 and 150.1 both of the LSC, has given rise to very diverse judgments. The number of cases that we face on a daily basis is diverse and plural, so that on several occasions it is difficult to adequately protect the interests at stake in view of the businesses that may be affected by the prohibited assistance. In recent years, a restrictive interpretation of nullity has been imposed by the Supreme Court in Spain, as well as once declared null and void whether it can or should affect other businesses and even the acquisition itself, which the Supreme Court denies. This paper analyzes the doctrine of the High Court and the extension or not of the nullity of the prohibited assistance to the business of acquisition of own shares or participations, starting from the patrimonial or financial purpose (on which the High Court is based) and/or the control regime that such assistance may grant in the company to the person who obtains it.
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Finanzas sostenibles y desafíos en el mercado peruano en materia de sostenibilidad
(Pontificia Universidad Católica del Perú, 2024-11-19) Fernández, Mercedes; Wong, Claudia
In this article, the authors explain the different sustainable financing alternatives that are being developed in Peru (i.e. green, social and sustainable bonds), as well as the main components of the carbon certificates market. The article also details some of the benefits that can be obtained through sustainable finance. Finally, the authors describe the challenges faced by Peruvian companies in terms of sustainability, as they have to implement several measures established by the European Union and the Securities and Exchange Commission, without having tax incentives or other promotional measures for the development of sustainable projects in Peru.
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Robots inteligentes en el directorio: Consejo de Administración de sociedades mercantiles
(Pontificia Universidad Católica del Perú, 2024-11-19) Pérez Carrillo, Elena F.
This paper discusses some of the obstacles to incorporating intelligent robots into corporate governance, primarily through the board of directors (BoD). And it offers ideas on how the transition could take place, overcoming the most problematic aspects of AI.
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Apuntes y consideraciones sobre la conversión del capital social de una sociedad peruana de soles a moneda extranjera
(Pontificia Universidad Católica del Perú, 2024-11-19) Pérez Caruajulca, Miguel Ángel
The article examines the conversion of the share capital of a peruvian company from soles to foreign currency, highlighting its legal, economic, and financial implications. It analyzes the function of share capital, the general rule of its expression in national currency, and the exceptions that allow its expression in foreign currency. Also, the requirements for this conversion are detailed, including the need for administrative authorization and its connection to accounting in foreign currency. Additionally, the reasons for this conversion are discussed, such as the protection of foreign investment, mitigation of exchange rate risk, and attraction of international financing. The article concludes with an analysis of the financial implications and strategies for managing exchange rate risk that can be applied to companies that decide to convert their capital stock to foreign currency.
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Gobernanza y Reglamento de Inteligencia Artificial desde la primera óptica de OpenAI
(Pontificia Universidad Católica del Perú, 2024-11-19) Fierro Rodríguez, Diego
The European Union Artificial Intelligence Act, set to come into force in August 2024, establishes a comprehensive regulatory framework for artificial intelligence in Europe, focusing on safety and trust. This legislation categorizes Artificial Intelligence systems by risk level, imposing specific requirements for each category, particularly for high-risk systems and unacceptable practices. The Act bans certain Artificial Intelligence practices and mandates rigorous obligations for high-risk Artificial Intelligence systems. Providers and deployers of Artificial Intelligence systems must adhere to these requirements, and the Act’s extraterritorial reach affects organizations outside the EU. Preparing for compliance involves classifying Artificial Intelligence systems and consulting with legal experts.
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Los objetivos de sostenibilidad y su influencia en el moderno derecho de sociedades
(Pontificia Universidad Católica del Perú, 2024-11-19) Quijano González, Jesús
The need to promote and protect general interests subject to increasing threats, for which the collaboration of companies is essential, is leading to a change in trend in the configuration of the purpose of commercial companies, especially larger ones. From the traditional conception of companies as manifestations of the right of association for economic purposes, among which the obtaining of profit and its distribution among the partners appeared as a natural purpose, there has been an evolution towards a way of understanding the social interest in combination with other interests, such as the protection of the environment, the promotion of human rights or the implementation of participatory, gender-balanced governance models with more effective accounting and management control methods.Historically, this approach has been followed by the definition of corporate social responsibility commitments, and more recently by the requirement to provide formalized non-financial information that would allow the assessment of these commitments. At present, ESG sustainability objectives (environment, social issues, governance) are practically an obligation that companies must assume, providing regular information on their level of involvement in promoting these objectives. European initiatives in the field of sustainability, as well as in due diligence and gender balance, are expressions of particular interest in this new approach.
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Editorial
(Pontificia Universidad Católica del Perú, 2024-11-19) Zevallos Janampa, Camila
No presenta resumen.
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Juntas generales de accionistas no presenciales
(Pontificia Universidad Católica del Perú, 2024-11-19) Leturia López, Eduardo Félix
This paper seeks to analyze the circumstances experienced by the vast majority of corporations to be able to call and hold General Shareholders’ Meetings since the establishment of the State of National Emergency, on March 16, 2020, which restricted the rights related to freedom of movement and of meeting, in those in which their statutes did not regulate that the General Meetings of Shareholders can be held remotely and nor did the General Corporation Law provide an adequate response to such an unusual circumstance. Likewise, it shows the legislative solutions that were issued, starting with the companies under the jurisdiction of the Securities Market Superintendence, then the cooperatives and finally the other kind of corporations and legal entities.
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El Impacto del Decreto 046 de 2024 en el Régimen de Responsabilidad de los administradores en Colombia
(Pontificia Universidad Católica del Perú, 2024-11-19) Henao Beltrán, Lina Fernanda
In this article, the author seeks to carry out an exhaustuve analysis regarding the impact of D.S. 046 on the liability regime of directors within Colombian legislation, thus specifying the areas of the duties of diligence, good faith and coporate loyalty. Furthermore, it’s mentioned that said norm, by incorporating the rule of deference to business criteria, grants greater autonomy when making decisions in favor of the interests of the company.
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Problemas frecuentes y casos prácticos en los títulos valores
(Pontificia Universidad Católica del Perú, 2024-11-19) Saavedra Gil, Rony
The present investigation consists of analyzing, from the legal principles of securities, the frequent errors that originate at the time of issuance and subsequent collection of securities. Errors that we find when signing the security, when placing the DNI number in the security, regarding the amount of the security, when the security is altered, when the security is incomplete, such as exchange joint liability, encumbrances and effects on the security title, unclaimability, among others. That is, the obligation is certain, express, enforceable, liquid, illiquid and that the object of the provision is to give, do or not do. All of this, with the objective of detecting such errors in the issuance of securities in time, so that they obtain the corresponding exchange effects.
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El secreto bancario en el Perú: antecedentes, evolución, perspectivas y límites
(Pontificia Universidad Católica del Perú, 2024-11-19) Bueno Olazábal, Miguel
This article aims to give a general overview of the activity of the financial system from the perspective of passive operations, which are protected by a reinforced level of reserve, which is banking secrecy. The definition of the figure and its evolution in the recent economic field, its constitutional protection and the existing regulatory framework are analyzed, and then the exceptions, excluded information, prohibitions, cases of violation of banking secrecy, types of operations are reviewed. passives and their singularities are, to conclude on the current perspectives and challenges of the figure, raising some reflections as a conclusion.
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Conflictos entre la autodeterminación informativa y la segmentación de perfiles a través de la publicidad programática online en el Perú
(Pontificia Universidad Católica del Perú, 2024-11-19) Sosa Huapaya, Alex
The purpose of this paper is to analyze the effects on the right to informational self-determination that can arise due to the use of online behavioral programmatic advertising as a tool for customer profiling and segmentation. In this research, the dogmatic method is used in order to analyze programmatic advertising regarding freedom of information protected in the Peruvian constitution, the rules that regulate its effects and pronouncements from the National Personal Data Authority, Indecopi, as well as European legislation. Thus, it aims to conclude if Peruvian regulations are appropriate to establish reasonable limits to this advertising strategy.
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Insolvencia y sostenibilidad
(Pontificia Universidad Católica del Perú, 2024-11-19) Flores Segura, Marta
This paper analyses the role that sustainability plays in corporate restructuring operations carried out in the context of insolvency proceedings. To this end, the debate on the purposes of insolvency proceedings and their stakeholders is revisited. In relation to this issue, the latest international trends in insolvency law are analyzed in detail and a theoretical approach to the admissibility and appropriateness of the consideration of sustainability-based interests in insolvency proceedings and the impact this may have on the interests of creditors is discussed.
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Impugnación de acuerdos negativos. Comentario a la Sentencia núm. 218/2024 de la Audiencia de Valencia de 24 de septiembre
(Pontificia Universidad Católica del Perú, 2024-11-19) Pastor Martínez, Eduardo; Martorell Zulueta, Purificación
The purpose of this work is the presentation of the recent Judgment of the Provincial Court of Valencia no. 218 of September 24, 2024, in which, with an analysis of the doctrine and jurisprudence on the matter, the challenge of the so-called negative agreements in the framework of capital companies is addressed, and the scope of the resolutions of the Courts from the perspective of complementing, or not, the corporate will. These notes are framed in the context of other doctrinal comments on rulings on challenging negative agreements (such as that of the Madrid Court of June 24, 2022, or that of the Italian Court of Cassazione of March 22 of 2024) to highlight the judicial contributions on the issue.
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El régimen legal de las tasas de interés en la legislación peruana
(Pontificia Universidad Católica del Perú, 2024-11-19) Castellares Aguilar, Rolando
Law No. 31143 has increased the Maximum Interest Rates to usury levels, especially for the sector outside the financial system; while operations within the financial system will no longer have interest rates freely determined by the parties, but rather some banking operations will be subject to Maximum Rates; while the other operations will have interest rates according to free supply and demand, thus generating a double regime for the operations of the financial system.On the other hand, the Maximum Interest Rates applicable to operations outside the financial system, such as the operations of the financial system subject to control, will have the same Maximum Rates, they will be determined semiannually; Therefore, these Maximum Rates will vary each semester, applying to the transactions agreed upon during that semester; all of which will generate complexity and conflicts between the parties.